The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Petitioner Glenn B. Milton, filed the instant petition pursuant to 28 U.S.C. § 2254, attacking sentences imposed by the Court of Common Pleas of Monroe County, following petitioner's pleas of guilty to two counts of Theft by Unlawful Taking in violation of 18 PA. CONS. STAT. § 3921. (Doc. 1, at 1.) For the reasons set forth below, the petition will be denied.
"At two separate informations, [petitioner] pled guilty to one count of theft by unlawful taking. Under the sentencing guidelines, the offense gravity score for each count was three, and [petitioner] was classified as a repeat felon. Accordingly, the aggravated range minimum sentence for each offense was twenty-one months." (Doc. 10-2, at 21.) "Imposition of sentence was deferred pending the completion of a presentence investigation report by the Monroe County Probation Department." (Doc. 10, at 4.) Thereafter, on February 27, 2007, "[t]he court imposed two consecutive sentences, each one being not less than twenty-one nor more than forty-two months' imprisonment. As such [petitioner's] sentences fell in the aggravated range. He filed a motion for reconsideration of sentence which was denied, and he then appealed." (Doc. 10-2, at 21.)
On appeal to the Superior Court of Pennsylvania, he raised the following issues: (1) the sentencing court erred in making repeated references to his felonious past without addressing the aggravating circumstances of his case; (2) the sentence is excessive because the court erroneously applied the repeat-felon status, and the presentence investigation report in at least one of his two cases did not contain a victim-impact statement; (3) the sentencing court "acted unreasonably by sentencing him to consecutive 'upper limit' (i.e., aggravated range) sentences in that the court stated it imposed such a sentence because of his criminal history and not due to the impact on the victim(s) or [petitioner's] rehabilitative needs." (Doc. 10-2, at 24-25.) The superior court affirmed the judgment of sentence on January 31, 2008. (Id. at 26.) He filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on July 28, 2008. (Doc. 6-2, at 9.)
The instant petition was timely filed on July 31, 2009. (Doc. 1). The following issues are presented for review: (1) whether the trial court appropriately applied the sentencing guidelines to a first degree misdemeanor; (2) whether the trial court imposed an excessive sentence when the presentence investigation did not contain a victim impact statement; (3) whether the trial court erred in imposing sentences in the upper limit of the guideline range.
The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The United States Supreme Court has held that habeas matters involving a state court's discretionary acts in sentencing proceedings are not subject to federal review, unless a specific constitutional claim is allegedly violated. See Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42-43 (3d Cir.1984) (a federal court has no power to review a state-imposed sentence in a habeas matter unless it involves a violation of a specific constitutional right). Indeed, "[a]bsent some constitutional violation, it is clear that, particularly in the area of state sentencing guidelines, federal courts cannot review a state's alleged failure to adhere to its own sentencing procedure." Knight v. Beyer, Civ. A. No. 88-3180, 1989 WL 68618, *6 (E.D. Pa. June 22, 1989) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)). Accordingly, a federal court will not reevaluate a sentence in a habeas corpus proceeding unless it exceeds the statutory limits. Jones, 725 F.2d at 42-43; see also Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984) ("As a general rule, federal courts will not review state sentencing determinations that fall within statutory limits."); Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir. 1975) ("This Court will not upset the terms of a sentence within statutory limits unless so disproportionate to the offense as to be completely arbitrary and shocking."); Smith v. Wainwright, 664 F.2d 1194, 1196 (11th Cir. 1981) (although court will review alleged impropriety in sentencing process itself, it will not consider the severity of a sentence imposed within statutory bounds).
In the matter sub judice, petitioner did not argue, in either the state court proceeding or the instant petition, that a specific constitutional violation occurred during his sentencing proceedings. The issues presented in state court were handled in the following manner:
One reason for allowance of appeal proffered by Appellant is his claim that the sentencing court made repeated references to his felonious past without addressing the aggravating circumstances of his case. Immediately after making this assertion in his brief, however, Appellant quotes a passage from the sentencing proceeding showing that the court did discuss aggravating circumstances. The court noted, inter alia, that Appellant tested positive for marijuana and cocaine at the time of the presentence report, that the presentence report indicated that he showed no remorse for his actions in this case, and that he was not truthful with his probation officer during the presentence investigation. Thus, Appellant's assertion is not supported by the record. Moreover, he offers no authority demonstrating that it was improper for the court to rely on the aggravating circumstances it cited.
As another reason to grant allowance of appeal, Appellant contends his sentence is excessive in that the court applied the repeat-felon status[,] and the presentence investigation report in at least one of his two cases did not contain a victim-impact statement. Appellant offers no plausible argument as to why this combined allegation forms a substantial question.
He does not dispute that his prior record qualifies him for repeat-felon status. Rather, he seems to assert that it should not be applied to him, perhaps because the underlying crimes in this matter were misdemeanors. With respect to the victim-impact statement, his claim appears to be that the absence of the statement proves the victim suffered little or no loss. Appellant offers no elaboration and cites no legal authority supporting either of his foregoing contentions.
Lastly, Appellant contends the court acted unreasonably by sentencing him to consecutive "upper limit" (i.e., aggravated-range") sentences in that the court stated it imposed such a sentence because of his criminal history and not due to the impact on the victim(s) or Appellant's rehabilitative needs. As we have already made plain, however, the court explained that it ...