John Austin v. ANDREW JACKSON , Warden; HURON VALLEY MEN ’S FACILITY

8 Austin v. Jackson, et al. No. 99-1394
§ 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.
B. Eighth Amendment
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
within the statutory maximum set by statute generally does
not constitute ‘cruel and unusual punishment.’” United States
v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)(quoting United
States v. Williams, 15 F.3d 1356, 1364 (6th Cir. 1994). We
are of the opinion that under the “narrow proportionality
principle”, Petitioner’s sentence of forty to sixty years is
neither “extreme” nor “grossly disproportionate” so as to
violate the Eighth Amendment. Harmelin v. Michigan, 501
U.S. 957, 959 (1991).
C. Separation of Powers
Finally, Petitioner asserts that the state trial court’s sentence
of forty to sixty years for his second degree murder conviction
violates the separation of powers between the judicial branch
and the executive branch in the state of Michigan. This claim
is not cognizable for purposes of federal habeas review as the
separation of powers between a state trial judge and a state
prosecutor is a matter of state law. As previously held by this
Court, a federal court may not grant habeas relief based on “a
perceived error of state law.” Pulley, 465 U.S. at 41. Further
discussion of this argument is unnecessary.
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
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0168P (6th Cir.)
File Name: 00a0168p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J OHN AUSTIN ,
Petitioner-Appellant,
v.
ANDREW J ACKSON , Warden;
HURON VALLEY M EN ’S
FACILITY ,
Respondents-Appellees.
;>

1
No. 99-1394
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-75742—Patrick J. Duggan, District Judge.
Submitted: April 27, 2000
Decided and Filed: May 18, 2000
Before: NORRIS and GILMAN, Circuit Judges; HOOD,
District Judge.*

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

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6 Austin v. Jackson, et al. No. 99-1394
Although the trial court did express its surprise that
Petitioner was not charged with first degree murder, it
reasoned that the facts of the case required an upward
departure from the recommended sentence under the
Michigan guidelines. Specifically, the trial court noted that
Petitioner pursued his fleeing, injured victim into the street
and through a busy intersection, thereby making a conscious
effort to enable him to deliver the fatal stab wound.
Despite the significant increase from the sentencing
guidelines, we hold that the state trial court did not abuse its
discretion in sentencing Petitioner to forty to sixty years
imprisonment. Petitioner fails to articulate the grounds upon
which the trial court’s departure from the Michigan
Sentencing guidelines violates any federal due process right
he possesses. He was aware of the possibility that the trial
court might depart upward. He was also given an opportunity
to present mitigating evidence as well as testify and present
witnesses on his behalf. Petitioner is unable to substantiate a
single violation of any of his constitutional guarantees to due
process.
Furthermore, the maximum penalty for second degree
murder in Michigan is life imprisonment. See MICH. COMP.
LAWS § 750.317 (1999). Although Petitioner’s sentence
may exceed the recommended guideline range, it neither
exceeds the statutory limit, nor is it wholly unauthorized by
law. As long as the sentence remains within the statutory
limits, trial courts have historically been given wide discretion
in determining “the type and extent of punishment for
convicted defendants.” Williams v. New York, 337 U.S. 241,
245 (1949).
Similar to the present case is Michigan v. Grady, 514
N.W.2d 541 (Mich. Ct. App. 1994), in which the defendant
was also convicted of second degree murder. The
recommended guideline range for this crime was eight to
twenty-five years; however, the defendant was sentenced to
forty to sixty years imprisonment. Grady appealed his
sentence on the ground that it was disproportionate. Based on
No. 99-1394 Austin v. Jackson, et al. 3
events, and the knife was confiscated. His conviction
followed.
Petitioner was sentenced on November 1, 1989 to forty to
sixty years imprisonment. The recommended guideline range
for Petitioner’s conviction was twelve to twenty-five years
imprisonment. The trial court indicated that said sentence,
which exceeded the recommended guideline range by fifteen
years, was based on the brutality of the crime, i.e. Petitioner’s
vigorous pursuit of Glover through city traffic in order to
deliver the final blow. Upon appeal to the Michigan State
Court of Appeals, his conviction was affirmed, but remanded
for re-sentencing. Both the prosecution and Petitioner then
filed applications for leave to appeal to the Michigan Supreme
Court.
Prior to the Michigan Supreme Court’s ruling, the trial
court reviewed the matter on June 2, 1992, and imposed the
same sentence of forty to sixty years imprisonment based on
the following rationale:
Well, really, I’m not able to say anything to you beyond
what I said to you at the time you were sentenced. I told
you that if you and the deceased had fallen together and
he had died in an immediate affray, I would have had an
entirely different opinion about this matter. But this was
thought out, it was planned, to the extent that you chased
this man who had already been stabbed, down the street,
across the street, the man was hit or fell into a bus. He
went over and fell down on his knees and begged you not
to do anything to him. But, you know, a man cannot
chase another man for this distance without suffering the
consequences. And I told you at the time I sentenced you
that I knew you were sorry.... But everything about this
case appeared to be Murder of the First Degree. And I
think the Prosecutor was very generous in considering it,
that you wouldn’t be charged in this fashion. But Mr.
Austin, no one can stab somebody and then chase
someone down the public streets and across a busy
intersection and stab him again and say “Oops, I’m

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4 Austin v. Jackson, et al. No. 99-1394
sorry.”... When I say thought out, you acted it out and it
looked as if you had a chance to stop and think about it.
You stabbed a man once, and he galloped down the
street, and you chased him. You know, if you chase him
even across a clear intersection, but you know, traffic
was moving heavily....You were even willing to hazard
your own safety to get that man....I’m going to tell you
again, that’s what I told you before, and that’s what I
think how you earned this penalty.
R. 15, Sentencing TR., pp. 7-10, Apx. pp. 238-41.
The Michigan Supreme Court denied Petitioner’s delayed
application for leave to appeal on July 31, 1992. In lieu of
granting the prosecution’s cross-application for leave to
appeal, the Michigan Supreme Court modified the judgment
of the state court of appeals, and remanded the case to the trial
court for a determination of the appropriateness of
resentencing.
On August 26, 1992, Petitioner appealed his sentence
rendered on June 2, 1992 to the Michigan Court of Appeals.
Said court vacated the June 2, 1992 sentence on the grounds
that the trial court lacked jurisdiction to resentence Petitioner
while the case was still pending before the Michigan Supreme
Court. The Michigan Court of Appeals then ordered the trial
court to comply with the Michigan Supreme Court’s July 31,
1992 Order and dismissed Petitioner’s pending appeal
without prejudice.
The trial court denied Petitioner’s motion for resentencing
and reinstated the sentence of forty to sixty years
imprisonment on June 3, 1994. An additional appeal filed
with the Michigan Court of Appeals resulted in an affirmance
on December 28, 1995 of the sentence imposed. Petitioner
then filed a request for federal habeas relief with the district
court on November 20, 1997. Said request was denied on
March 9, 1999. Challenging his sentence by the trial court,
Petitioner filed a notice of appeal with this Court on April 7,
1999.
No. 99-1394 Austin v. Jackson, et al. 5
II. ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996
(hereinafter “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996), governs this habeas petition. Relief under the
AEDPA through the grant of a habeas petition is provided
only if the state court rendered a “decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States”, or said decision “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Nevers v.
Killinger, 169 F.3d 352, 357 (6th Cir.)(quoting 28 U.S.C.
§ 2254(d)), cert. denied __ U.S. __, 119 S.Ct. 2340 (1999).
The district court’s denial of federal habeas relief shall be
reviewed de novo. See Barker v. Yukins, 199 F.3d 867, 870
(6th Cir. 1999). All factual findings by the state court are
accepted by this Court unless they are clearly erroneous. See
Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995).
A. Due Process Rights
Petitioner presents three arguments as to why the district
court erred in denying his federal petition for habeas relief.
His first argument is based upon the violation of his due
process rights during sentencing. To the extent that this
argument is based upon an alleged violation of Michigan law,
Petitioner has failed to state a claim upon which habeas relief
may be granted. See Pulley v. Harris, 465 U.S. 37, 41 (1984).
“It is undisputed that convicted defendants,...have a due
process right to a fair sentencing procedure.” United States
v. Anders, 899 F.2d 570, 575 (6th Cir. 1990). According to
Petitioner, the trial court judge violated his due process rights
when she sentenced Petitioner as if he had been convicted of
first degree murder, even though he was charged with second
degree murder. Said argument is based on the trial court
judge’s statement that his case was “a text-book case of
murder in the first degree.” R. 16, Sentencing TR., p.5, Apx.
p. 251.

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