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.
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.