[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCRUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10528 MARCH 15, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:10-cv-00193-RAL-TBM
ROBERT GRABER,
lllllllllllllllllllll Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
lllllllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 15, 2011)
Before EDMONDSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Robert Graber, a Florida state prisoner proceeding pro se, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We granted a
certificate of appealability (“COA”) on the issue of:
Whether the district court erred in concluding that Graber had failed
to state a claim for federal habeas corpus relief, pursuant to 28 U.S.C.
§ 2254, when he alleged that he had been illegally sentenced above
the statutory maximum.
For the reasons stated below, we answer that question in the negative.
I.
“When examining a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Williams v. Allen, 542 F.3d 1326, 1336 (11th Cir. 2008)
(quotation marks omitted). A petitioner’s claim that his sentence exceeds the
maximum authorized by state law “properly falls within the scope of federal
habeas corpus review because ‘the eighth amendment bars a prison sentence
beyond the legislatively created maximum.’” Echols v. Thomas, 33 F.3d 1277,
1279 (11th Cir. 1994) (quoting Ralph v. Blackburn, 590 F.2d 1335, 1337 n.3 (5th
Cir. 1979)).1 By contrast, a petitioner’s challenge to state sentencing guidelines is
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
2
outside the scope of federal habeas corpus review. See Branan v. Booth, 861 F.2d
1507, 1508 (11th Cir. 1988) (explaining that habeas petitions based on issues of
state law do not provide a basis for relief and that “[i]n the area of state sentencing
guidelines in particular, we consistently have held that federal courts cannot
review a state’s alleged failure to adhere to its own sentencing procedures”).
Graber was convicted of third-degree murder, a second degree felony under
Florida law, and was sentenced to 20 years imprisonment in accordance with state
sentencing guidelines. See Fla. Stat. § 782.04(4) (1997). He argues that the
district court erred in dismissing his § 2254 petition because his 20-year sentence
exceeded the 15-year maximum sentence provided in Fla. Stat. § 775.082(3)(c)
(1997) for second-degree felonies. However, under Fla. Stat. § 921.001(5) “[i]f a
recommended sentence under the [sentencing] guidelines exceeds the maximum
sentence otherwise authorized by § 775.082, the sentence under the guidelines
must be imposed, absent a departure.” Fla. Stat. § 921.001(5) (1997) (emphasis
added). Because Graber’s sentence was based on state sentencing guidelines, his
claim falls outside the scope of federal habeas corpus review. See Branan, 861
F.2d at 1508. Accordingly, the district court did not err in denying Graber’s §
2254 habeas petition.
AFFIRMED.
3