Voytik v. U.S., 84-2500

• Citation: 778 F.2d 1306
• Decision Date: 06 December 1985
• Docket Number: No. 84-2500,84-2500
• Parties: David Paul VOYTIK, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

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.

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.

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, 758 F.2d 1254, 1259 (8th Cir.1985) (rule of liberal construction failed to save a broad and conclusory pro se pleading); Grady v. Wilken, 735 F.2d 303, 304 (8th Cir.1984) (court affirmed dismissal of pro se complaint based on broad and conclusory factual allegations).

Voytik's section 2255 motion alleged that at the time the plea was taken he was under extreme duress due to pending state charges arising from the same conduct. In his memoranda of law in support of the motion, he claimed that he was then "induced by his counsel" to change his plea to guilty "by means of various forms of promises and threats to coerce and intimidate [him]." He also alleged that he was "hoodwinked into a guilty plea under the belief that he was to do no more than six months of the Youth Corrections Act" and that his record would be expunged. Finally, Voytik alleged in his memoranda that when his plea was taken no mention was made of adult charges which could be imposed. In a response brief Voytik referred to "implied threat * * * that failure to plead [guilty] would result in a finding of guilty and a 10 year adult sentence." [Emphases added.]

The district court carefully reviewed the record of the plea-taking and the written petition to enter a plea. With respect to Voytik's allegation that he was tricked as to the sentence that he would receive, the court observed:

The defendant alleges that counsel "hoodwinked the [defendant] into a plea of GUILTY, under the belief that he was to do no more than six months of the Youth Corrections Act, 5010(b) ... as well as expungement of the conviction.... This was also believed due to the fact that no mention was made as to the options available to the [defendant] in the way of adult penalties the Court could impose on him." Again, the record shows the assertion not to be true. Question 23 of the petition to enter plea of guilty asked: "Do you know that the sentence you will receive is solely a matter for the judge to decide? He answered yes. Question 24 asked: What is the maximum punishment which the law provides for the offense or offenses to which you want to plead GUILTY?" The answer was: "A fine of not more than $5,000, imprisonment of not more than 10 years, or both." Question 25 asked: "If you are at least eighteen (18) and not more than twenty-six (26) years of age, do you realize that the court may sentence you under the provisions of the Youth Corrections Act or as a Young Adult Offender for an indeterminate sentence (18 U.S. Sec. 5010(b)), which may require you to spend as long as six (6) years in a penal institution? The answer was yes. Question 31 was: "Has anyone suggested to you that you will receive a lighter sentence if you plead GUILTY?" His answer was no. Question 32 was: "Has the judge made any suggestion as to what the actual sentence will be?" His answer was no.

United States v. Voytik, No.Cr. 79-L-07, mem. op. at 2-3 (D.Neb. Oct. 3, 1984)

In his petition to enter a plea, Voytik also answered "No" to the following questions: (1) Has any threat of any kind been made by anyone that causes you to plead guilty? (2) Are you making this plea of guilty because you are afraid to plead not guilty or because of any pressure by anybody? Voytik answered "Yes" to the question "Has any plea agreement been made by you with anyone which causes you to plead guilty?" To the question "[E]xactly what is that agreement as you understand it," he answered "Dismissal of Count 1 in exchange for a guilty plea on Count 11." And finally, Voytik answered "No" to the question "Has any promise been made by anyone which causes you to plead guilty, aside from the promises, if any, set forth in [the preceding question]?" At the plea-taking hearing, the court reviewed Voytik's responses and further inquired into his understanding of the agreement. The Court found that Voytik's responses indicated that he understood the nature of the plea and the terms of the...