Voytik v. U.S., No. 84-2500

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY, JOHN R. GIBSON and FAGG; JOHN R. GIBSON
• Citation: 778 F.2d 1306
• Parties: David Paul VOYTIK, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 84-2500
• Decision Date: 06 December 1985

Page 1306

778 F.2d 1306 David Paul VOYTIK, Appellant,
v.
UNITED STATES of America, Appellee. No. 84-2500. United States Court of Appeals,
Eighth Circuit. Submitted Sept. 10, 1985.
Decided Dec. 6, 1985.

Page 1307

Rodney M. Confer, Lincoln, Neb., for appellant.

Paul D. Boeshart, Lincoln, Neb., for appellee.

Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

David Paul Voytik pleaded guilty in federal district court ¹ to violating 18 U.S.C. Sec. 659 (1982) by stealing a trailer in interstate commerce loaded with pork. The district court sentenced him on August 10, 1979 under the Youth Corrections Act [YCA], 18 U.S.C. Sec. 5010(b) (1976). ² Voytik moved under 28 U.S.C. Sec. 2255 (1982) to vacate or correct the sentence, alleging that (1) his guilty plea was entered involuntarily; (2) he was denied effective assistance of counsel in making a motion for reduction of sentence under Federal Rule of Criminal Procedure 35 (Rule 35); and (3) his sentence was not executed in accordance with the YCA's guidelines and policies. The district court denied the motion without an evidentiary hearing and Voytik challenges that disposition on appeal. We conclude that the district court did not err in rejecting Voytik's claims. We affirm.

Voytik was apprehended at a truck weighing station while he was in possession of a stolen trailer loaded with pork. He was charged with violating 18 U.S.C. Sec. 659, which prohibits taking and carrying away with intent to convert goods in interstate commerce, and 18 U.S.C. Sec. 2312, which prohibits transporting a stolen vehicle in interstate commerce. Voytik initially pleaded not guilty to both charges. He claims that he later came under extreme duress when state authorities filed charges against him based on the same conduct. His attorney, he claims, then coerced him into pleading guilty. He pleaded guilty in the district court to the first charge and, in exchange, the second charge was dropped. Voytik now alleges that the plea was involuntary and taken under a procedure which violated Rule 11 of the Federal Rules of Criminal Procedure.

Voytik claims further that while in prison he learned of his right to file a Rule 35 motion for reduction of his sentence and asked his lawyer to file one. His attorney did not file a motion. Eventually, by letter to the district judge, Voytik requested a reduction in his sentence. The court treated the letter as a request for relief under Rule 35 and informed Voytik that it had no power to act because more than 120 days had passed since his sentence was imposed. Voytik claims that his attorney's failure to make a timely Rule 35 motion constituted ineffective assistance of counsel.

Finally, Voytik challenges the conditions under which his sentence was executed, alleging that he did not receive rehabilitative treatment, had not been segregated from adult offenders, and had not been considered for parole or release as required by the YCA.

Voytik raised these contentions in a section 2255 motion. The district court, upon review of the record without an evidentiary hearing, denied relief on all Voytik's claims. The court found no evidence that the defendant's plea was involuntary or coerced. The court also rejected the ineffective assistance of counsel claim, finding that it would not have reduced or modified Voytik's sentence had a proper Rule 35 motion been made. Finally, the court ruled that it lacked jurisdiction to adjudicate Voytik's challenges to the manner in which his sentence was executed.

Voytik now challenges the district court's summary dismissal of his section 2255 motion.

Page 1308

I.

A prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. 28 U.S.C. Sec. 2255; Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). While a guilty plea taken in open court is not invulnerable to collateral attack in a post conviction proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a "formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1628, 52 L.Ed.2d 136 (1977); United States v. Goodman, 590 F.2d 705, 710 (8th Cir.1979). Thus, a petition which consists only of "conclusory allegations unsupported by specifics [or] * * * allegations that, in the face of the record, are wholly incredible," Blackledge v. Allison, 431 U.S. 63, 73, 97 S.Ct. 1621, 1629; see also Goodman, 590 F.2d at 710, is insufficient to overcome the barrier to an evidentiary hearing on a section 2255 motion.

Voytik urges us to reverse the district court's holding on the strength of our decision in United States v. Unger, 665 F.2d 251 (8th Cir.1981). Unger involved a section 2255 motion to vacate a conviction on kidnapping charges. Unger alleged that her attorney induced her to plead guilty with the promise of probation if she would do so. She alleged, further, that when she attempted to refuse her attorney told her that she would receive the death penalty if she went to trial. We concluded that her allegations were stated with sufficient specificity and were neither conclusory nor incredible in the face of the record. Id. at 253-54. We therefore remanded the case to the district court for an evidentiary hearing.

Voytik's allegations are not as specific as those in Unger. While we are governed by the principle that pro se pleadings must be liberally construed, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Miles v. ERTL Company, 722 F.2d 434, 435 (8th Cir.1983), a challenge based on an absence of voluntariness must state specific facts sufficient to overcome the presumption of verity which attached to the in court representations. Thus, the principle of liberal construction will not save Voytik's pleadings if they are based on conclusory or non specific factual allegations. See, e.g., Munz v. Parr, ...