[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 4, 2010
No. 09-12693 JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 05-80106-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEDON DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 2010)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Kedon Davis appeals the district court’s denial of his 28 U.S.C. § 1361
motion for the issuance of a writ of mandamus to compel the government to file on
his behalf a Federal Rule of Criminal Procedure Rule 35(b) (“Rule 35”) substantial
assistance motion. On appeal, Davis argues that the district court erred in denying
mandamus relief because the evidence showed that the government acted in bad
faith. Davis further argues that because the government’s refusal to file a Rule 35
motion amounted to a breach of the plea agreement, he was entitled to an
evidentiary hearing on his motion.
On March 17, 2006, Davis pleaded guilty to one count of manufacturing
fifty grams or more of crack cocaine in violation of 21 U.S.C. §841(a)(1) and
-(b)(1)(A). His written plea agreement stated that the United State Attorney’s
Office retained the right to exercise “sole and unreviewable judgment” over the
nature of the cooperation Davis provided to law enforcement, as a prelude to
making an appropriate motion before or after sentencing to reduce the terms of
Davis’s punishment. “[N]othing in this Agreement may be construed to require
this Office to file any such motion(s) and . . . this Office’s assessment of the nature,
value, truthfulness, completeness, and accuracy of the defendant’s cooperation
shall be binding insofar as the appropriateness of this Office’s filing of any such
motion is concerned,” the plea agreement further stated.
After sentencing, Davis filed no direct appeal. A year and a half later, he
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filed a motion to compel the government to tender specific performance of his plea
agreement, which motion the district court denied. More than a year after that
denial, Davis subsequently filed a motion for a writ of mandamus, which the
district court denied. This timely appeal followed.
A district court has original jurisdiction to “compel an officer or employee
of the United States or any agency thereof to perform a duty owed to the plaintiff.”
28 U.S.C. § 1361. We review a district court’s refusal to grant a petition for a writ
of mandamus for an abuse of discretion. See Schlagenhauf v. Holder, 379 U.S.
104, 111 n.8, 85 S. Ct. 234, 239 n.8 (1964) (recognizing that the issuance of a writ
of mandamus “is itself generally a matter of discretion”).
A writ of mandamus is a “drastic and extraordinary remedy reserved for
really extraordinary causes” and will issue only in “exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of discretion.”
Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380, 124 S. Ct.
2576, 2586–87 (2004) (internal citations and quotations omitted). A writ of
mandamus is only appropriate when: (1) the plaintiff has a clear right to the relief
requested; (2) the defendant has a clear duty to act; and (3) no other adequate
remedy is available. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (per
curiam) (internal citation and quotation omitted). Mandamus “lies only to confine
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a lower court within its jurisdiction or to compel it to perform ministerial, not
discretionary, functions.” Weber v. Coney, 642 F.2d 91, 92 (5th Cir. Unit A Mar.
1981).1 “The party seeking mandamus has the burden of demonstrating that its
right to issuance of the writ is clear and indisputable.” In re BellSouth Corp., 334
F.3d 941, 953 (11th Cir. 2003) (citations and quotation omitted).
Under Rule 35, a court may reduce a sentence, even to a level below the
statutory minimum, upon a motion of the government. Fed. R. Crim. P. 35(b).
The government has “a power, not a duty,” to file a Rule 35 motion when the
defendant has provided substantial assistance. Wade v. United States, 504 U.S.
181, 185, 112 S. Ct. 1840, 1843 (1992). “[T]he courts are precluded from
intruding into prosecutorial discretion.” United States v. Forney, 9 F.3d 1492,
1501 (11th Cir. 1993). We will “not evaluate the assistance rendered by a
defendant offering cooperation as a term of his plea agreement unless and until the
government makes a 5K1.1 [or Rule 35] motion for downward departure based on
substantial assistance.” Id. An exception may lie when there is a specific
agreement to file a substantial assistance motion. Id. at 1503 n.5. In the absence of
specific agreement, we only review failure to file a Rule 35 motion when the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit handed down
prior to the close of business on Sept. 30, 1981.
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defendant makes a substantial threshold showing that the prosecution refused to
file a substantial assistance motion because of a constitutionally impermissible
motivation, such as race, religion, or other arbitrary classification. Id. at 1501–02
& n.4. Review is also appropriate where the government’s refusal to file a motion
was not rationally related to a legitimate government purpose. Wade, 504 U.S. at
186, 112 S. Ct. at 1844.
While “a showing of assistance is a necessary condition for relief, it is not a
sufficient one.” Id. at 187, 112 S. Ct. at 1844. As such, where a defendant claims
merely that he has provided substantial assistance, without anything else,
supplemented only by “additional but generalized allegations of improper motive,”
he will not be entitled to “a remedy or even to discovery or an evidentiary
hearing.” Id. at 186, 112 S. Ct. at 1844 (emphasis added).
We have held that an allegation of bad faith is not an allegation of
unconstitutional motivation. Forney, 9 F.3d at 1500–01 & n.3 (concluding that
defendant did not reserve the issue of bad faith on appeal because he did not allege
an unconstitutional motivation by the government). We have firmly rejected
approaches that have held otherwise. Id. at 1501–02 & n.4. Furthermore, we have
interpreted a bad faith challenge to be a generalized allegation of improper motive
under Wade, and thus impermissible altogether. Id. at 1502 & n.5.
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In this case, Davis failed to make the substantial threshold showing that
would entitle him to any relief under these circumstances. He has not alleged a
constitutionally impermissible motive on the part of prosecutors for declining to
file a Rule 35 motion on his behalf, nor has he shown that any act or lack of action
by the government was not rationally related to a legitimate government purpose.
Moreover, we would not be in a position to evaluate any purported assistance by
Davis unless and until the prosecutor had filed a Rule 35 motion. Having alleged
only that he provided substantial assistance and that the government acted in bad
faith, without alleging an unconstitutional motive or absence of legitimate purpose,
Davis established no right either to relief or an evidentiary hearing. Accordingly,
we hold that the district court did not abuse its discretion in denying his motion for
the issuance of a writ of mandamus.
AFFIRMED.
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