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