[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 14, 2005
No. 05-11155 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00030-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER H. GRIFFIN,
a.k.a. Big Al,
a.k.a. Big Papa,
a.k.a. Zander,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 14, 2005)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Federal prisoner Alexander Griffin, proceeding pro se, appeals the district
court’s denial of his petition for a writ of mandamus to compel the government to
file a Fed.R.Crim.P 35(b) motion for reduction of his sentence. On appeal, Griffin
maintains that he provided substantial assistance to the government and that the
government had an obligation to honor the oral promises of government agents to
file a Rule 35(b) motion on his behalf. Although Griffin concedes that the
government agents only made oral promises to file a Rule 35(b) motion, as
opposed to a written contract, Griffin argues that he nonetheless provided
information that the government used in obtaining convictions of other individuals
and, thus, we should order the issuance of the writ of mandamus to remedy the
government’s breach of the oral agreement. Griffin also requests that we follow
the analysis utilized by the Supreme Court in Wade v. United States, 504 U.S. 181,
112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), which provided that the district court
could remedy the government’s refusal to file a Rule 35(b) motion if the court
found that the refusal was based on an unconstitutional motive.
Under 28 U.S.C. § 1361, district courts have “original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United
States . . . to perform a duty owed to the plaintiff.” Whether to issue a writ of
mandamus is within the discretion of the court to which the petition is addressed.
Kerr v. U.S. Dist. Ct. For the N. Dist. of California, 426 U.S. 394, 403, 96 S.Ct.
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2119, 2124, 48 L.Ed.2d 725 (1976); see also United States v. Denson, 603 F.2d
1143, 1146 (5th Cir. 1979) (explaining that “[t]he Supreme Court has repeatedly
stated in general terms that issuance of a writ of mandamus lies in large part within
the discretion of the court”).
Moreover, mandamus is a drastic remedy justified by “only exceptional
circumstances.” In re BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003). “The
party seeking mandamus has the burden of demonstrating that its right to issuance
of the writ is clear and indisputable.” Id. (quotation omitted). “[A] writ of
mandamus is intended to provide a remedy for a plaintiff only if he has exhausted
all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.” Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003)
(quotation omitted).
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. Griffin has not shown the exceptional circumstances
necessary to warrant issuance of the writ. The plea agreement executed between
Griffin and the government stated that “the determination as to whether
‘substantial assistance’ has been provided or what type of motion related thereto
will be filed, if any, rests solely with the United States Attorney for the Middle
District of Florida.” It is clear, then, that the government does not owe Griffin a
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nondiscretionary duty to file a Rule 35(b) motion requesting a reduction in his
sentence. Therefore, to the extent Griffin argues that the government breached the
agreement, his argument is without merit because the government was under no
mandatory duty, pursuant to the plea agreement, to file the Rule 35(b) motion.
Additionally, there is no evidence in the record supporting Griffin’s contention that
government agents made an oral agreement with Griffin that would bind the
government and require it to file a Rule 35(b) motion.
In short, Griffin failed to establish a “clear and indisputable” right to the
issuance of a writ of mandamus, and, thus, we affirm the district court’s denial of
Griffin’s petition for such writ. Because we can affirm on the foregoing, we need
not reach the government’s alternative arguments that Griffin could have sought
relief under 28 U.S.C. § 2255(4) and is precluded from relief under the law of the
case doctrine.
AFFIRMED.
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