                                                                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
8     Austin v. Jackson, et al.                      No. 99-1394                       Pursuant to Sixth Circuit Rule 206
                                                                               ELECTRONIC CITATION: 2000 FED App. 0168P (6th Cir.)
                                                                                           File Name: 00a0168p.06
§ 2254(e)(1). Therefore, we conclude that the state trial court
did not act in an arbitrary and capricious manner in rendering
Petitioner’s sentence.
                                                                       UNITED STATES COURT OF APPEALS
    B. Eighth Amendment
                                                                                         FOR THE SIXTH CIRCUIT
   Petitioner next argues that his sentence violates the Eighth                            _________________
Amendment to the United States Constitution. As previously

                                                                                                          ;
noted by this Court, the maximum penalty for second degree

                                                                                                           
murder in the case at bar is life imprisonment. “[A] sentence           JOHN AUSTIN,
                                                                                                           
within the statutory maximum set by statute generally does                     Petitioner-Appellant,
                                                                                                           
not constitute ‘cruel and unusual punishment.’” United States

                                                                                                           
v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)(quoting United                                                     No. 99-1394
States v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994). We                         v.
                                                                                                           
are of the opinion that under the “narrow proportionality                                                   >
principle”, Petitioner’s sentence of forty to sixty years is            ANDREW JACKSON, Warden;            
neither “extreme” nor “grossly disproportionate” so as to                                                  
                                                                                                           
                                                                        HURON VALLEY MEN’S
violate the Eighth Amendment. Harmelin v. Michigan, 501
                                                                              Respondents-Appellees. 
                                                                        FACILITY,
U.S. 957, 959 (1991).
                                                                                                           
                                                                                                          1
    C. Separation of Powers
   Finally, Petitioner asserts that the state trial court’s sentence          Appeal from the United States District Court
of forty to sixty years for his second degree murder conviction              for the Eastern District of Michigan at Detroit.
violates the separation of powers between the judicial branch              No. 97-75742—Patrick J. Duggan, District Judge.
and the executive branch in the state of Michigan. This claim
is not cognizable for purposes of federal habeas review as the                            Submitted: April 27, 2000
separation of powers between a state trial judge and a state
prosecutor is a matter of state law. As previously held by this                       Decided and Filed: May 18, 2000
Court, a federal court may not grant habeas relief based on “a
perceived error of state law.” Pulley, 465 U.S. at 41. Further          Before: NORRIS and GILMAN, Circuit Judges; HOOD,
discussion of this argument is unnecessary.                                              District Judge.*
III. CONCLUSION
  Accordingly, we AFFIRM the district court’s decision to
deny post-conviction relief under 28 U.S.C. § 2254.

                                                                           *
                                                                            The Honorable Joseph M. Hood, United States District Judge for the
                                                                       Eastern District of Kentucky, sitting by designation.

                                                                                                         1
2    Austin v. Jackson, et al.                    No. 99-1394      No. 99-1394                      Austin v. Jackson, et al.     7

                    _________________                              the “seriousness of the circumstances surrounding both the
                                                                   offense and the offender,” the Michigan Court of Appeals
                         COUNSEL                                   held otherwise Id. at 543. Specifically, the state court of
                                                                   appeals focused on the trial court’s findings that “‘the
ON BRIEF: Craig A. Daly, Detroit, Michigan, for                    multiple, grizzly [sic] wounds which were subsequently
Appellant.     Janice M. Joyce Bartee, OFFICE OF                   inflicted on [the victim] make this offense far worse than
PROSECUTING ATTORNEY COUNTY OF WAYNE,                              other unpremeditated attacks which result in second degree
Detroit, Michigan, for Appellees.                                  homicide convictions.’” Id. at 542-43 (internal cites omitted).
                                                                   Hence, the significant upward departure in the defendant’s
                    _________________                              sentence was upheld.
                        OPINION                                      Petitioner relies heavily on United States v. Roston, 986
                    _________________                              F.2d 1287 (9th Cir. 1993), in which the Ninth Circuit Court
                                                                   of Appeals vacated the district court’s ten-level upward
   JOSEPH M. HOOD, District Judge. Michigan prisoner               departure in the sentence of a defendant convicted of
John Austin appeals the denial of his petition for a writ of       murdering his wife on their honeymoon cruise. We find
habeas corpus filed pursuant to 28 U.S.C. § 2254. In 1989          Roston distinguishable from the present case. Roston
Petitioner was convicted of second degree murder in the            received a life sentence whereas Petitioner received a lesser
stabbing death of Eric Glover. On appeal he contends that the      punishment. Second, the Roston case was before the Ninth
trial court violated his due process rights, the Eighth            Circuit on direct appeal, unlike this action before us on a writ
Amendment, and the separation of powers doctrine by                of habeas corpus. This is significant because the Ninth
imposing a sentence far in excess of the recommended state         Circuit did not find that the district court’s sentence was
sentencing guidelines.                                             unconstitutional, but rather remanded the case for the district
I. BACKGROUND                                                      court “to explain in terms of the structure, standards and
                                                                   policies of the Sentencing Guidelines why it departed upward
  The testimony presented at trial revealed that Petitioner and    ten levels....” Id. at 1294. Therefore, it is logical that Roston
victim Eric Glover were involved in an outdoor fight.              could have received exactly the same sentence after the
Multiple witnesses observed either all or part of the acts         district court explicated its departure from the Sentencing
comprising the murder. After an exchange of words,                 Guidelines. In the present case, the Michigan Court of
Petitioner stabbed Glover in the stomach with a knife. Glover      Appeals has already determined that Petitioner’s state court
then broke away from the fight, ran out into the street in front   sentence was appropriate under Michigan law. Hence, our
of a bus and a car, and fell to the ground with Petitioner in      review is limited to the constitutionality of this sentence.
close pursuit. After Petitioner reached him, Glover partially
stood up and faced Petitioner with his hands outstretched.           The trial court did not sentence Petitioner based on the
Petitioner again stabbed Glover with a knife in a punch-like       misinformation that he should have been charged with first
motion. Glover attempted to flee the area, and collapsed in a      degree murder. Rather, the facts upon which the trial court
nearby empty lot. Autopsy reports indicate that Glover died        based Petitioner’s sentence for the second degree murder
from stab wounds to the stomach and chest. Petitioner was          conviction are clearly evident in the record. The findings in
apprehended by an off-duty police officer witnessing these         the record are presumed to be correct, and Petitioner has not
                                                                   met his burden of rebutting said presumption. See 28 U.S.C.
6     Austin v. Jackson, et al.                    No. 99-1394      No. 99-1394                      Austin v. Jackson, et al.     3

  Although the trial court did express its surprise that            events, and the knife was confiscated.          His conviction
Petitioner was not charged with first degree murder, it             followed.
reasoned that the facts of the case required an upward
departure from the recommended sentence under the                      Petitioner was sentenced on November 1, 1989 to forty to
Michigan guidelines. Specifically, the trial court noted that       sixty years imprisonment. The recommended guideline range
Petitioner pursued his fleeing, injured victim into the street      for Petitioner’s conviction was twelve to twenty-five years
and through a busy intersection, thereby making a conscious         imprisonment. The trial court indicated that said sentence,
effort to enable him to deliver the fatal stab wound.               which exceeded the recommended guideline range by fifteen
                                                                    years, was based on the brutality of the crime, i.e. Petitioner’s
  Despite the significant increase from the sentencing              vigorous pursuit of Glover through city traffic in order to
guidelines, we hold that the state trial court did not abuse its    deliver the final blow. Upon appeal to the Michigan State
discretion in sentencing Petitioner to forty to sixty years         Court of Appeals, his conviction was affirmed, but remanded
imprisonment. Petitioner fails to articulate the grounds upon       for re-sentencing. Both the prosecution and Petitioner then
which the trial court’s departure from the Michigan                 filed applications for leave to appeal to the Michigan Supreme
Sentencing guidelines violates any federal due process right        Court.
he possesses. He was aware of the possibility that the trial
court might depart upward. He was also given an opportunity           Prior to the Michigan Supreme Court’s ruling, the trial
to present mitigating evidence as well as testify and present       court reviewed the matter on June 2, 1992, and imposed the
witnesses on his behalf. Petitioner is unable to substantiate a     same sentence of forty to sixty years imprisonment based on
single violation of any of his constitutional guarantees to due     the following rationale:
process.
                                                                      Well, really, I’m not able to say anything to you beyond
  Furthermore, the maximum penalty for second degree                  what I said to you at the time you were sentenced. I told
murder in Michigan is life imprisonment. See MICH. COMP.              you that if you and the deceased had fallen together and
LAWS § 750.317 (1999). Although Petitioner’s sentence                 he had died in an immediate affray, I would have had an
may exceed the recommended guideline range, it neither                entirely different opinion about this matter. But this was
exceeds the statutory limit, nor is it wholly unauthorized by         thought out, it was planned, to the extent that you chased
law. As long as the sentence remains within the statutory             this man who had already been stabbed, down the street,
limits, trial courts have historically been given wide discretion     across the street, the man was hit or fell into a bus. He
in determining “the type and extent of punishment for                 went over and fell down on his knees and begged you not
convicted defendants.” Williams v. New York, 337 U.S. 241,            to do anything to him. But, you know, a man cannot
245 (1949).                                                           chase another man for this distance without suffering the
                                                                      consequences. And I told you at the time I sentenced you
  Similar to the present case is Michigan v. Grady, 514               that I knew you were sorry.... But everything about this
N.W.2d 541 (Mich. Ct. App. 1994), in which the defendant              case appeared to be Murder of the First Degree. And I
was also convicted of second degree murder. The                       think the Prosecutor was very generous in considering it,
recommended guideline range for this crime was eight to               that you wouldn’t be charged in this fashion. But Mr.
twenty-five years; however, the defendant was sentenced to            Austin, no one can stab somebody and then chase
forty to sixty years imprisonment. Grady appealed his                 someone down the public streets and across a busy
sentence on the ground that it was disproportionate. Based on         intersection and stab him again and say “Oops, I’m
4      Austin v. Jackson, et al.                   No. 99-1394      No. 99-1394                      Austin v. Jackson, et al.     5

    sorry.”... When I say thought out, you acted it out and it      II. ANALYSIS
    looked as if you had a chance to stop and think about it.
    You stabbed a man once, and he galloped down the                  The Antiterrorism and Effective Death Penalty Act of 1996
    street, and you chased him. You know, if you chase him          (hereinafter “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
    even across a clear intersection, but you know, traffic         (1996), governs this habeas petition. Relief under the
    was moving heavily....You were even willing to hazard           AEDPA through the grant of a habeas petition is provided
    your own safety to get that man....I’m going to tell you        only if the state court rendered a “decision that was contrary
    again, that’s what I told you before, and that’s what I         to, or involved an unreasonable application of, clearly
    think how you earned this penalty.                              established Federal law, as determined by the Supreme Court
                                                                    of the United States”, or said decision “was based on an
R. 15, Sentencing TR., pp. 7-10, Apx. pp. 238-41.                   unreasonable determination of the facts in light of the
                                                                    evidence presented in the State court proceeding.” Nevers v.
  The Michigan Supreme Court denied Petitioner’s delayed            Killinger, 169 F.3d 352, 357 (6th Cir.)(quoting 28 U.S.C.
application for leave to appeal on July 31, 1992. In lieu of        § 2254(d)), cert. denied __ U.S. __, 119 S.Ct. 2340 (1999).
granting the prosecution’s cross-application for leave to           The district court’s denial of federal habeas relief shall be
appeal, the Michigan Supreme Court modified the judgment            reviewed de novo. See Barker v. Yukins, 199 F.3d 867, 870
of the state court of appeals, and remanded the case to the trial   (6th Cir. 1999). All factual findings by the state court are
court for a determination of the appropriateness of                 accepted by this Court unless they are clearly erroneous. See
resentencing.                                                       Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995).
  On August 26, 1992, Petitioner appealed his sentence                A. Due Process Rights
rendered on June 2, 1992 to the Michigan Court of Appeals.
Said court vacated the June 2, 1992 sentence on the grounds           Petitioner presents three arguments as to why the district
that the trial court lacked jurisdiction to resentence Petitioner   court erred in denying his federal petition for habeas relief.
while the case was still pending before the Michigan Supreme        His first argument is based upon the violation of his due
Court. The Michigan Court of Appeals then ordered the trial         process rights during sentencing. To the extent that this
court to comply with the Michigan Supreme Court’s July 31,          argument is based upon an alleged violation of Michigan law,
1992 Order and dismissed Petitioner’s pending appeal                Petitioner has failed to state a claim upon which habeas relief
without prejudice.                                                  may be granted. See Pulley v. Harris, 465 U.S. 37, 41 (1984).
  The trial court denied Petitioner’s motion for resentencing          “It is undisputed that convicted defendants,...have a due
and reinstated the sentence of forty to sixty years                 process right to a fair sentencing procedure.” United States
imprisonment on June 3, 1994. An additional appeal filed            v. Anders, 899 F.2d 570, 575 (6th Cir. 1990). According to
with the Michigan Court of Appeals resulted in an affirmance        Petitioner, the trial court judge violated his due process rights
on December 28, 1995 of the sentence imposed. Petitioner            when she sentenced Petitioner as if he had been convicted of
then filed a request for federal habeas relief with the district    first degree murder, even though he was charged with second
court on November 20, 1997. Said request was denied on              degree murder. Said argument is based on the trial court
March 9, 1999. Challenging his sentence by the trial court,         judge’s statement that his case was “a text-book case of
Petitioner filed a notice of appeal with this Court on April 7,     murder in the first degree.” R. 16, Sentencing TR., p.5, Apx.
1999.                                                               p. 251.
