Opinion
Civil No. 00-CV-73380-DT.
October 30, 2000.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Melissa Ann Harp, ("petitioner"), presently confined at the Scott Correctional Facility in Plymouth, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her application, filed pro se, petitioner challenges her conviction and sentence on one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549, and one count of second degree child abuse, M.C.L.A. 750.136b (3); M.S.A. 28.331(2)(3). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was charged with first degree felony murder and first degree child abuse, arising out of the beating death of her four year old daughter. Pursuant to a plea agreement with the prosecutor, she was permitted to plead guilty to reduced charges of second degree murder and second degree child abuse, in exchange for which the original charges were dismissed. Petitioner was sentenced to concurrent terms of twenty five to fifty years in prison on the second degree murder conviction and thirty two to forty eight months in prison on the second degree child abuse conviction. Petitioner's conviction and sentence were affirmed on appeal. People v. Harp, 211858 (Mich.Ct.App. August 31, 1998); lv. den. 459 Mich. 982; 593 N.W.2d 552 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following ground:
I. Petitioner's constitutional rights were violated where petitioner's sentence is cruel and unusual. The trial court abused its discretion in sentencing petitioner to a grossly disproportionate term of incarceration.
II. STANDARD OF REVIEW
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522.
III. DISCUSSION
Petitioner claims that her sentence of twenty five to fifty years for second degree murder is grossly disproportionate because the minimum sentence of twenty five years was at the top end of the guidelines range of twelve to twenty five years under the Michigan Sentencing Guidelines. In support of her allegation that the sentence is disproportionate, petitioner indicates that she had no prior criminal history, was diagnosed by the Forensic Center for Psychiatry as a borderline retarded person with an IQ of 72, and was a victim of domestic violence. She also notes that the probation department acknowledged that the incident leading to death of her child was due partially to petitioner's lack of knowledge and parenting skills.
A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D.Mich. 1999) (Gadola, J.). Generally, federal habeas review of a state court sentence ends once the court makes a determination that the sentence is within the limitation set by statute. Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). When a sentence is within the statutory limits, a habeas petitioner must show that the sentencing was wholly devoid of discretion, or amounted to an arbitrary or capricious abuse of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived petitioner of his or her liberty. Hines v. Louisiana, 102 F. Supp.2d 690, 698 (E.D.La. 2000) (internal citations omitted).
Second degree murder is punishable by a sentence of life or any term of years. In imposing sentence, the trial court noted that petitioner had struck her four year old daughter in the head which resulted in her death. The trial court also noted that the coroner's examination had revealed old as well as new injuries to the child. Petitioner had beaten the child after becoming angry at her for urinating in her clothing. The autopsy of the victim, in fact, revealed that the victim had been injured on the left, right, and front of her forehead, and had bruises to the back of her head, her left cheek, the bridge of her nose, the lower right chest, and upper neck area. There were also bruises on her arms, hands, thighs, knees, the back of her legs, and back.
Sentence Transcript, pp. 14-15.
Preliminary Examination Transcript, February 14, 1997, p. 6.
Because petitioner's sentence for second degree murder was within the bounds set by the statute, this Court will not disturb the sentence on habeas review. Welch v. Burke, 49 F. Supp.2d 992, 1009-1010 (E.D.Mich. 1999) (Cleland, J.). A sentence within the statutory maximum set by statute does not normally constitute cruel and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (holding that a sentence of forty to sixty years for second degree murder, even though it was a departure above the guidelines range of twelve to twenty five years, was neither extreme or grossly disproportionate so as to violate the Eighth Amendment).
In the present case, not only was petitioner's sentence of twenty five to fifty years within the maximum penalty set by statute, it was also within the sentencing guidelines range of twelve to twenty five years. Courts have upheld far greater sentences imposed for similar crimes. See United States ex. rel. Thirston v. Gilmore, 986 F. Supp. 491, 500 (N.D. Ill. 1997) (seventy year sentence for first degree murder conviction stemming from the brutal beating death of a twenty two month old child was within the limits set by the applicable sentencing statute and was thus not grounds for habeas relief based upon an Eight Amendment challenge); Rhode v. Olk-Long, 84 F.3d 284, 290 (8th Cir. 1996) (life sentence not grossly disproportionate for the crime of murdering a four month old baby with malice aforethought). Based on the facts in this case, petitioner has failed to show that the sentence imposed was arbitrary or grossly disproportionate.
In Michigan, sentences within a correctly scored guidelines range are presumptively proportionate. People v. Bailey, 218 Mich. App. 645, 647; 554 N.W.2d 391 (1996).
Lastly, because petitioner's sentencing claim is based largely upon an alleged violation of state law, she would fail to state a claim upon which relief can be granted. Austin v. Jackson, 213 F.3d at 300. Any claim that the sentence imposed violates the principle of proportionality enunciated in Milbourn is a state law issue that would not be cognizable in federal habeas proceedings. Welch v. Burke, 49 F. Supp.2d at 1009; Atkins v. Overton, 843 F. Supp. 258, 260 (E.D.Mich. 1994) (Gadola, J.).
People v. Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.