Case: 12-14140   Date Filed: 07/31/2013   Page: 1 of 4




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14140
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:01-cr-00066-RV-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

KENNETH FRANCIS COLLINS,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                             (July 31, 2013)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
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         Kenneth Collins, proceeding pro se and filing in forma pauperis, appeals the

denial of his petition for writ of mandamus to compel the government to file a

Federal Rule of Criminal Procedure 35(b) motion in return for substantial

assistance he provided in the investigation and prosecution of several individuals.

Collins argues that the district court erred in determining it did not have

jurisdiction to consider his motion, the government waived its discretion in filing

the Rule 35(b) motion when a DEA agent made an oral promise to file the motion

for him, and the government is bound by the oral contract created by that DEA

agent.

         Under Federal Rule of Criminal Procedure 35(b), the district court may

reduce a defendant’s sentence if “the defendant, after sentencing, provided

substantial assistance in investigating or prosecuting another person” and the

government files a motion requesting such relief. Fed. R. Crim. P. 35(b). The

government has the power, but not the duty, to file a substantial assistance motion.

See Wade v. United States, 

, 185, 

, 1843 (1992)

(discussing prosecutorial discretion and substantial assistance motions under 18

U.S.C. § 3553(e)) and U.S.S.G. § 5K1.1; United States v. McNeese, 

,

1308 (11th Cir. 2008) (per curiam) (applying Wade to a Rule 35(b) motion). The

government enjoys “virtually unfettered discretion” in deciding whether to file a

Rule 35 motion. Murphy v. United States, 

, 1313 (11th Cir. 2011).


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The Supreme Court’s decision in Wade—not principles of contract law—controls

review of governmental discretion in filing sentence reduction motions. United

States v. Forney, 

, 1503 n.3 (11th Cir. 1993).

      The district court may only review the government’s refusal to file if the

defendant first makes “an allegation and a substantial showing” that the refusal

was based upon an unconstitutional motive, such as race or religion. United States

v. Dorsey, 

, 961 (11th Cir. 2009) (emphasis in original) (internal

quotation marks omitted) (citing 

). “A defendant who

merely claims to have provided substantial assistance or who makes only

generalized allegations of an improper motive is not entitled to a remedy or to even

an evidentiary hearing.” 

Writs Act, federal courts may issue “all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C § 1651. 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. Mandamus is a drastic

remedy, to be invoked only in extraordinary situations. In re BellSouth Corp., 

, 953 (11th Cir. 2003).

      We review a district court’s denial of a motion for a writ of mandamus for

abuse of discretion. In re Stewart, 

, 1275 (11th Cir. 2011) (per


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curiam). 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, 

,

1258 (11th Cir. 2003) (per curiam) (internal quotation marks and alteration

omitted). Said differently, a plaintiff must show that “he has exhausted all other

avenues of relief” and “the defendant owes him a clear nondiscretionary duty.” 

omitted). The party seeking the writ of mandamus must

establish that his or her right to the writ’s issuance is “clear and indisputable.” Will

v. United States, 

, 96, 

, 274 (1967) (internal quotation

marks omitted).

      Collins has failed to make the required threshold showing that the

government acted with an unconstitutional motive when it refused to file a Rule

35(b) motion on his behalf. Accordingly, the district court did not abuse its

discretion in denying Collins’s petition.

      AFFIRMED.




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