                                                                  [DO NOT PUBLISH]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
