[DO NOT PUBLISH]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, 

, 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, 

,

1279 (11th Cir. 1994) (quoting Ralph v. Blackburn, 

, 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, 

, 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, 

, 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 

. Accordingly, the district court did not err in denying Graber’s §

2254 habeas petition.

      AFFIRMED.

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