Gilbert Luberda v. DAVID TRIPPETT , Warden, Thumb Correctional Facility

8 Luberda v. Trippett, et al. No. 98-1959
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
have jurisdiction to entertain Luberda’s appeal and that his
appeal must be dismissed.
IV.
For the foregoing reasons, the district court order
dismissing Luberda’s petition is AFFIRMED.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0162P (6th Cir.)
File Name: 00a0162p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GILBERT LUBERDA ,
Petitioner-Appellant,
v.
DAVID TRIPPETT , Warden,
Thumb Correctional Facility,
Respondent-Appellee.
;>

1
No. 98-1959
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

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2 Luberda v. Trippett, et al. No. 98-1959
ATTORNEY GENERAL, HABEAS CORPUS DIVISION,
Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
RYAN, Circuit Judge. This appeal raises the question
whether a federal habeas petitioner’s disregard of a Michigan
rule of appellate procedure, enacted after the petitioner’s state
conviction but before the submission of his case to the
Michigan Court of Appeals, may operate as an “adequate and
independent state procedural bar” to preclude federal habeas
review. We think it may and we will affirm.
The district court order dismissed petitioner Gilbert
Luberda’s habeas corpus petition, which attacked the validity
of his Michigan conviction for rape and kidnapping. In a
single-judge order, this court issued a certificate of
appealability of the district court’s order, certifying four
issues for review. Respondent David Trippett, Luberda’s
Michigan jailer, argues that this court may not address the
four issues certified because the Michigan courts disposed of
these same claims on state procedural grounds in a collateral
attack upon the conviction. We conclude that the
respondent’s argument is well-taken and, consequently,
lacking jurisdiction to review the merits of the petitioner’s
claims, we will dismiss the appeal.
I.
It is unnecessary to repeat the grim details of Luberda’s
crimes. Rather, all that need be said here is that Luberda was
convicted in Michigan in 1988 of the brutal kidnapping and
rape of a Michigan woman.
In March 1989, the petitioner filed his direct appeal to the
Michigan Court of Appeals, which raised none of the
constitutional challenges that are asserted here. Several
months later, in October 1989, the Michigan legislature
No. 98-1959 Luberda v. Trippett, et al. 7
a defendant, represented by competent counsel, would decline
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
predicted by Luberda to arise without the “date of conviction”
rule are illusory.
We decline, moreover, to adopt any per se approach for
pinpointing when M.C.R. 6.508(D) became “firmly
established” with respect to all habeas petitioners. That
decision should be made based upon the facts of each case
and the type of procedural rule involved. The federal courts
must decide on a case-by-case basis whether, during the
period that a defendant may, if he wishes, tailor his appeal to
avoid the consequences of a state procedural rule, the
“defendant . . . could . . . be ‘deemed to have been apprised of
[the procedural rule’s] existence.’” See Ford, 498 U.S. at
423. Here, indulging the fiction that knowledge of the
Michigan rule’s adoption would have somehow changed the
substance of Luberda’s direct appeal, there is no reason why
after the enactment of M.C.R. 6.508 in October 1989,
Luberda could not have requested permission to add the
constitutional arguments raised in the present petition prior to
the submission of his direct appeal in November 1990. There
was a period of 13 months in which he might have done so.
Given these facts, the Michigan Court of Appeals had no
trouble concluding that Luberda was bound by the
requirements of M.C.R. 6.508(D), and we find no federal
constitutional ground to gainsay that court. Consequently, we
do not pause in concluding that M.C.R. 6.508(D)(3) was a
“firmly established” procedural rule for the purposes of
Luberda’s case.
III.
Given that the Michigan courts denied the constitutional
objections raised here on an “adequate and independent” state
ground, we are without jurisdiction to review Luberda’s
claims unless “cause” and “prejudice” or a “fundamental

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

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4 Luberda v. Trippett, et al. No. 98-1959
The magistrate judge then proceeded to analyze each of
Luberda’s allegations of constitutional violations on the
merits, but still concluded that relief was not warranted. The
district court adopted the magistrate judge’s findings and
recommendations and, accordingly, dismissed Luberda’s
petition.
The petitioner then filed a notice of appeal from the district
court order, which this court construed as an application for
a Certificate of Appealability. This court then granted
Luberda’s request for an appeal, certifying four issues: (1)
whether the admission of the former testimony of two
witnesses against Luberda’s codefendant violated Luberda’s
Confrontation Clause rights; (2) whether certain comments in
the prosecution’s opening statement rendered Luberda’s trial
“fundamentally unfair”; (3) whether Luberda’s trial counsel
provided ineffective assistance; and (4) whether the
cumulative effect of the preceding issues certified denied
Luberda due process of law. This appeal followed.
II.
In determining our own jurisdiction in a habeas appeal, we,
of course, review de novo the question whether a state court,
which held that a state procedural rule precluded
consideration of a defendant’s request for relief, did so on an
“adequate and independent” state ground. See Rogers, 144
F.3d at 992.
As a general rule, the federal courts do not have jurisdiction
to act upon a habeas petition which raises claims previously
denied by a state court, if that court relied on an “adequate
and independent” procedural bar to reach its decision. See id.
This general rule gives way, however, if the habeas petitioner
can demonstrate “cause for the default and actual prejudice as
a result of the alleged violation of federal law” or “that failure
to consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
No. 98-1959 Luberda v. Trippett, et al. 5
Whether the application of a state procedural rule
constitutes an “adequate” ground for disposing of a
constitutional claim depends, in part, on the timeliness of the
state’s implementation of the procedural rule. The Supreme
Court has held that “only a ‘firmly established and regularly
followed state practice’ may be interposed by a State” to
preclude subsequent federal habeas review. Ford v. Georgia,
498 U.S. 411, 423-24 (1991) (citations omitted). The critical
inquiry in assessing how “firmly” a state procedural rule has
been established is whether, viewed from the time of a
defendant’s later-significant actions or inaction, the
“defendant . . . could . . . be ‘deemed to have been apprised of
[the procedural rule’s] existence.’” Id. at 423 (citation
omitted). In Rogers, a case where this court had occasion to
analyze whether a Michigan prisoner, convicted
approximately 25 years before the enactment of M.C.R.
6.508, “could be ‘deemed to have been apprised’” of the
Michigan rule, we stated that M.C.R. 6.508 should be
considered “firmly established” if the rule was effective
“when petitioner had a right to a direct appeal.” See Rogers,
144 F.3d at 992.
Luberda argues that, in Rogers, this court intimated that the
dismissal of a collateral attack on a Michigan prisoner’s
conviction pursuant to M.C.R. 6.508(D) could never
constitute a “‘firmly established . . . state practice’” if the
prisoner was convicted prior to the enactment of the Michigan
rule. Indeed, the magistrate judge agreed with this
interpretation of Rogers. Luberda urges us to definitively
adopt this “date of conviction” rule and, as he was convicted
prior to the enactment of M.C.R. 6.508, therefore, reach the
merits of his claims. To do otherwise, he argues, would work
a substantial injustice on defendants who, immediately after
their conviction, made the strategic choice to reserve
constitutional objections for later collateral attacks in reliance
upon pre-M.C.R. 6.508(D) practice.
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

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