Voshell v. Burt

Filing 17

ORDER Adopting Report and Recommendation, Denying Petitioner's Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Thomas L. Ludington. (BSoc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DENNIS ALLEN VOSHELL,
Petitioner,
Case Number 10-11409
Honorable Thomas L. Ludington
v.
SHERRY BURT,
Respondent.
_______________________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A
CERTIFICATE OF APPEALABILITY
On April 8, 2010, Petitioner Dennis Voshell filed a petition for writ of habeas corpus [Dkt.
#1], brought under 28 U.S.C. § 2254, challenging the constitutionality of his incarceration in a
Michigan prison. Petitioner was sentenced to a term of 50 to 180 months following his plea of guilty
in the Roscommon County Circuit Court to a charge of second degree criminal sexual conduct,
Mich. Comp. Laws § 750.520c(1)(a). This matter is now before the Court on a report and
recommendation [Dkt. #15] issued by Magistrate Judge R. Steven Whalen on March 17, 2011. Judge
Whalen recommends denying Petitioner’s petition for writ of habeas corpus [Dkt. #1].
More specifically, Judge Whalen notes that Petitioner’s petition could be properly dismissed
for failure to exhaust the remedies available in state court, but he instead recommends denying
Petitioner’s petition for lack of merit in all of the issues that have been raised. First, Judge Whalen
recommends that Petitioner’s claim that he did not understand the consequences of his plea and that
he was coerced into pleadings is contradicted by the state court record, including Petitioner’s own
sworn statements. Second, Judge Whalen recommends that Petitioner’s ineffective assistance of

counsel claims are similarly defeated by his own statements on the record, including his
acknowledgment that he was satisfied with his counsel’s representation. Judge Whalen further
recommends that Petitioner has not informed the Michigan courts nor this Court what mitigating
evidence he contends his attorney omitted during sentencing. Third, Judge Whalen recommends that
Petitioner’s allegation of miscalculation of his sentencing guidelines is an issue of state law, not
federal law, and is not cognizable on federal habeas review. Fourth, Judge Whalen recommends that
Petitioner’s claim for cruel and unusual punishment as a result of his sentence is without merit.
Petitioner’s sentence, which was within both the statutory limits and the sentencing guideline range,
is presumptively proportional under state law and under federal law is neither extreme nor grossly
disproportionate so as to violate the Eighth Amendment of the Constitution. Fifth, Judge Whalen
recommends that even if Petitioner were able to present a free-standing claim of actual innocence,
he has not presented any extrinsic evidence to support such a claim and that his pleading guilty and
providing a factual basis for the offense under oath are inconsistent with a claim of actual innocence.
Finally, Judge Whalen recommends denying a certificate of appealability because Petitioner has not
made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. §
2253(c)(2).
As of today’s date, no party has filed any objections to the magistrate judge’s report and
recommendation. A party’s decision not to object to the report and recommendation waives any
further right to appeal. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987). Likewise, a party’s decision not to object to the magistrate judge’s report releases the Court
from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985).
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [Dkt.

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#15] is ADOPTED.
It is further ORDERED that Petitioner’s petition for writ of habeas corpus [Dkt. #1] is
DENIED.
It is further ORDERED that a certificate of appealability is DENIED because Petitioner has
not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. §
2253(c)(2).
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 19, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Dennis Voshell #264768, at Parnall Correctional Facility, 1780 E.
Parnall, Jackson, MI 49201 by first class U.S. mail on April 19, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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