                                                                        RECOMMENDED FOR FULL-TEXT PUBLICATION
8    Luberda v. Trippett, et al.                No. 98-1959                  Pursuant to Sixth Circuit Rule 206
                                                                     ELECTRONIC CITATION: 2000 FED App. 0162P (6th Cir.)
                                                                                 File Name: 00a0162p.06
miscarriage of justice” is shown. See Coleman, 501 U.S. at
750. Luberda does not attempt to establish that either
exception is applicable and, after having reviewed the record,
we conclude that he cannot. Thus, we hold that we do not         UNITED STATES COURT OF APPEALS
have jurisdiction to entertain Luberda’s appeal and that his                   FOR THE SIXTH CIRCUIT
appeal must be dismissed.                                                        _________________
                            IV.

                                                                                               ;
                                                                                                
  For the foregoing reasons, the district court order             GILBERT LUBERDA,
                                                                                                
dismissing Luberda’s petition is AFFIRMED.                                Petitioner-Appellant,
                                                                                                
                                                                                                
                                                                                                        No. 98-1959
                                                                           v.
                                                                                                
                                                                                                 >
                                                                  DAVID TRIPPETT, Warden,       
                                                                                                
                                                                         Respondent-Appellee. 1
                                                                  Thumb Correctional Facility,


                                                                        Appeal from the United States District Court
                                                                       for the Eastern District of Michigan at Detroit.
                                                                 No. 97-71758—Lawrence P. Zatkoff, Chief District Judge.
                                                                                Argued: January 26, 2000
                                                                             Decided and Filed: May 10, 2000
                                                                    Before: GUY, RYAN, and BOGGS, Circuit Judges.
                                                                                   _________________
                                                                                        COUNSEL
                                                                 ARGUED: Stuart G. Friedman, Ann Arbor, Michigan, for
                                                                 Appellant. Laura Graves Moody, OFFICE OF THE
                                                                 ATTORNEY GENERAL, HABEAS CORPUS DIVISION,
                                                                 Lansing, Michigan, for Appellee. ON BRIEF: Stuart G.
                                                                 Friedman, Ann Arbor, Michigan, for Appellant. Laura
                                                                 Graves Moody, Vincent J. Leone, OFFICE OF THE


                                                                                             1
2     Luberda v. Trippett, et al.                  No. 98-1959      No. 98-1959                   Luberda v. Trippett, et al.     7

ATTORNEY GENERAL, HABEAS CORPUS DIVISION,                           a defendant, represented by competent counsel, would decline
Lansing, Michigan, for Appellee.                                    to assert on direct appeal several potentially meritorious
                                                                    federal constitutional objections to his conviction on the
                    _________________                               theory that they might be brought later in a state habeas
                                                                    proceeding. We, therefore, think the dire consequences
                        OPINION                                     predicted by Luberda to arise without the “date of conviction”
                    _________________                               rule are illusory.
  RYAN, Circuit Judge. This appeal raises the question                 We decline, moreover, to adopt any per se approach for
whether a federal habeas petitioner’s disregard of a Michigan       pinpointing when M.C.R. 6.508(D) became “firmly
rule of appellate procedure, enacted after the petitioner’s state   established” with respect to all habeas petitioners. That
conviction but before the submission of his case to the             decision should be made based upon the facts of each case
Michigan Court of Appeals, may operate as an “adequate and          and the type of procedural rule involved. The federal courts
independent state procedural bar” to preclude federal habeas        must decide on a case-by-case basis whether, during the
review. We think it may and we will affirm.                         period that a defendant may, if he wishes, tailor his appeal to
                                                                    avoid the consequences of a state procedural rule, the
   The district court order dismissed petitioner Gilbert            “defendant . . . could . . . be ‘deemed to have been apprised of
Luberda’s habeas corpus petition, which attacked the validity       [the procedural rule’s] existence.’” See Ford, 498 U.S. at
of his Michigan conviction for rape and kidnapping. In a            423. Here, indulging the fiction that knowledge of the
single-judge order, this court issued a certificate of              Michigan rule’s adoption would have somehow changed the
appealability of the district court’s order, certifying four        substance of Luberda’s direct appeal, there is no reason why
issues for review. Respondent David Trippett, Luberda’s             after the enactment of M.C.R. 6.508 in October 1989,
Michigan jailer, argues that this court may not address the         Luberda could not have requested permission to add the
four issues certified because the Michigan courts disposed of       constitutional arguments raised in the present petition prior to
these same claims on state procedural grounds in a collateral       the submission of his direct appeal in November 1990. There
attack upon the conviction.         We conclude that the            was a period of 13 months in which he might have done so.
respondent’s argument is well-taken and, consequently,              Given these facts, the Michigan Court of Appeals had no
lacking jurisdiction to review the merits of the petitioner’s       trouble concluding that Luberda was bound by the
claims, we will dismiss the appeal.                                 requirements of M.C.R. 6.508(D), and we find no federal
                                                                    constitutional ground to gainsay that court. Consequently, we
                               I.                                   do not pause in concluding that M.C.R. 6.508(D)(3) was a
  It is unnecessary to repeat the grim details of Luberda’s         “firmly established” procedural rule for the purposes of
crimes. Rather, all that need be said here is that Luberda was      Luberda’s case.
convicted in Michigan in 1988 of the brutal kidnapping and                                        III.
rape of a Michigan woman.
                                                                      Given that the Michigan courts denied the constitutional
  In March 1989, the petitioner filed his direct appeal to the      objections raised here on an “adequate and independent” state
Michigan Court of Appeals, which raised none of the                 ground, we are without jurisdiction to review Luberda’s
constitutional challenges that are asserted here. Several           claims unless “cause” and “prejudice” or a “fundamental
months later, in October 1989, the Michigan legislature
6    Luberda v. Trippett, et al.                  No. 98-1959      No. 98-1959                  Luberda v. Trippett, et al.      3

language in Rogers could be interpreted as supporting              enacted Michigan Court Rule 6.508, which states in relevant
Luberda’s position, this support dissipates once Rogers is read    part:
in context. In Rogers, the petitioner was found guilty of first-
degree murder in 1965. Although appellate counsel had been           The defendant has the burden of establishing entitlement
appointed for him, the petitioner never appealed his                 to the relief requested [in a collateral attack on a
conviction. In 1991, the petitioner filed a motion for relief        conviction]. The court may not grant relief to the
from judgment, which the Michigan Circuit Court denied               defendant if the motion . . . alleges grounds for relief,
pursuant to M.C.R. 6.508(D)(3). See Rogers, 144 F.3d at              other than jurisdictional defects, which could have been
991. Given that M.C.R. 6.508 was enacted 25 years after the          raised on appeal from the conviction and sentence or in
petitioner’s conviction and apparently significantly changed         a prior motion under this subchapter, unless the
post-conviction practice in Michigan, this court declined to         defendant demonstrates [cause and actual prejudice.]
impute constructive awareness of the Michigan rule to the
petitioner “when [he] had a right to a direct appeal” and,         M.C.R. 6.508(D)(3)(1989) (emphasis added).                 The
consequently, held that review of the habeas petition was          petitioner’s direct appeal, although filed in March 1989, was
permissible. See id. at 992. Thus, in Rogers, there was no         not actually submitted to the Michigan Court of Appeals until
particular need to pinpoint a date relevant in assessing when      November 1990 and, aside from a remand for the sole
a petitioner “could have been deemed apprised of” the effects      purpose of resentencing, was denied in 1991. In 1994,
of M.C.R. 6.508 and, therefore, even if the Rogers panel did       Luberda, in reliance upon M.C.R. 6.508, filed a motion for
express an inclination towards the adoption of a “date of          relief from judgment in the Michigan courts raising the same
conviction” rule, which is unlikely, such musings would be         constitutional objections that are asserted here, as well as
unnecessary dicta.                                                 some others. After a trial court disposed of Luberda’s motion
                                                                   on an alternative ground, the Michigan Court of Appeals
  More fundamentally, a “date of conviction” rule, first, leads    affirmed, ruling that “[Luberda had] failed to meet the burden
to absurd results and, second, rests on a shaky theoretical        of establishing entitlement to relief under M.C.R. 6.508(D).”
foundation. The first objection is easily illustrated with a       Paraphrasing, that court held that it would not consider
question: should the federal courts assume jurisdiction over       Luberda’s constitutional objections because he failed to show
the habeas petition of a Michigan defendant convicted on           any factor that prevented him from raising those arguments in
September 30, 1989, the day before the enactment of M.C.R.         his direct appeal as required by M.C.R. 6.508(D).
6.508, while rejecting the petition of the defendant convicted
on October 1, 1989, because of an awkward fiction that the            Unsuccessful in the Michigan court system, Luberda filed
September 30 defendant would be deemed not to have been            a habeas petition in federal court in April 1997. The case was
aware of the effects of the Michigan rule? The answer, we          assigned to a magistrate judge, who ruled initially that the
think, is self evident.                                            petitioner had procedurally defaulted on his constitutional
                                                                   claims in the state court and, consequently, recommended
  As to the questionable theoretical foundation for Luberda’s      dismissal.     The magistrate judge later retracted this
proposed “date of conviction” rule, it asks too much of this       recommendation, however, based upon the conclusion that a
court to accept Luberda’s contention that he relied upon pre-      decision of this court, Rogers v. Howes, 144 F.3d 990 (6th
M.C.R. 6.508 procedure when composing his appeal. Upon             Cir. 1998), held that M.C.R. 6.508(D) could never constitute
entry of his judgment of conviction and sentence, Luberda          an “adequate and independent” state procedural bar if applied
was facing life in prison. We do not think it very likely that     to a defendant convicted prior to the enactment of that rule.
4     Luberda v. Trippett, et al.                   No. 98-1959      No. 98-1959                    Luberda v. Trippett, et al.      5

The magistrate judge then proceeded to analyze each of                  Whether the application of a state procedural rule
Luberda’s allegations of constitutional violations on the            constitutes an “adequate” ground for disposing of a
merits, but still concluded that relief was not warranted. The       constitutional claim depends, in part, on the timeliness of the
district court adopted the magistrate judge’s findings and           state’s implementation of the procedural rule. The Supreme
recommendations and, accordingly, dismissed Luberda’s                Court has held that “only a ‘firmly established and regularly
petition.                                                            followed state practice’ may be interposed by a State” to
                                                                     preclude subsequent federal habeas review. Ford v. Georgia,
  The petitioner then filed a notice of appeal from the district     498 U.S. 411, 423-24 (1991) (citations omitted). The critical
court order, which this court construed as an application for        inquiry in assessing how “firmly” a state procedural rule has
a Certificate of Appealability. This court then granted              been established is whether, viewed from the time of a
Luberda’s request for an appeal, certifying four issues: (1)         defendant’s later-significant actions or inaction, the
whether the admission of the former testimony of two                 “defendant . . . could . . . be ‘deemed to have been apprised of
witnesses against Luberda’s codefendant violated Luberda’s           [the procedural rule’s] existence.’” Id. at 423 (citation
Confrontation Clause rights; (2) whether certain comments in         omitted). In Rogers, a case where this court had occasion to
the prosecution’s opening statement rendered Luberda’s trial         analyze whether a Michigan prisoner, convicted
“fundamentally unfair”; (3) whether Luberda’s trial counsel          approximately 25 years before the enactment of M.C.R.
provided ineffective assistance; and (4) whether the                 6.508, “could be ‘deemed to have been apprised’” of the
cumulative effect of the preceding issues certified denied           Michigan rule, we stated that M.C.R. 6.508 should be
Luberda due process of law. This appeal followed.                    considered “firmly established” if the rule was effective
                                                                     “when petitioner had a right to a direct appeal.” See Rogers,
                               II.                                   144 F.3d at 992.
  In determining our own jurisdiction in a habeas appeal, we,           Luberda argues that, in Rogers, this court intimated that the
of course, review de novo the question whether a state court,        dismissal of a collateral attack on a Michigan prisoner’s
which held that a state procedural rule precluded                    conviction pursuant to M.C.R. 6.508(D) could never
consideration of a defendant’s request for relief, did so on an      constitute a “‘firmly established . . . state practice’” if the
“adequate and independent” state ground. See Rogers, 144             prisoner was convicted prior to the enactment of the Michigan
F.3d at 992.                                                         rule. Indeed, the magistrate judge agreed with this
                                                                     interpretation of Rogers. Luberda urges us to definitively
   As a general rule, the federal courts do not have jurisdiction    adopt this “date of conviction” rule and, as he was convicted
to act upon a habeas petition which raises claims previously         prior to the enactment of M.C.R. 6.508, therefore, reach the
denied by a state court, if that court relied on an “adequate        merits of his claims. To do otherwise, he argues, would work
and independent” procedural bar to reach its decision. See id.       a substantial injustice on defendants who, immediately after
This general rule gives way, however, if the habeas petitioner       their conviction, made the strategic choice to reserve
can demonstrate “cause for the default and actual prejudice as       constitutional objections for later collateral attacks in reliance
a result of the alleged violation of federal law” or “that failure   upon pre-M.C.R. 6.508(D) practice.
to consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).           We are not persuaded by Luberda’s argument that Rogers
                                                                     mandates a “date of conviction” rule and we think the
                                                                     magistrate judge mistakenly subscribed to it. While some
