                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JUNE 5, 2008
                               No. 07-15890                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 04-00015-CR-01-HLM-4

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

HENRY AUSTIN DUNCAN,
a.k.a. Hank Duncan,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                 (June 5, 2008)

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Henry Duncan, proceeding pro se, appeals the district court’s denial of his
petition for a writ of mandamus to compel the government to file a Federal Rule of

Criminal Procedure 35(b) motion to reduce his sentence based on his substantial

assistance in investigating or prosecuting others.

                                           I.

      In 2005 Henry Duncan entered into a plea agreement with the government.

The terms of the agreement were that Duncan would plead guilty to one count of

the indictment against him, cooperate fully with the government, and waive some

of his rights to directly appeal or collaterally attack his sentence. In exchange, the

government agreed to dismiss the remaining counts in the indictment and make

certain recommendations at his sentence hearing. Additionally, the government

agreed that, if Duncan’s cooperation was complete at the time of sentencing and

constituted “substantial assistance,” the government would move for a downward

departure under United States Sentencing Guidelines § 5K1.1. If Duncan’s

cooperation was not complete until after sentencing and was “substantial

assistance,” then the government agreed to “consider whether to file a [Rule 35(b)]

motion for reduction of sentence.” The plea agreement specified that “the

determination as to whether [Duncan] ha[d] provided ‘substantial assistance’

rest[ed] solely with the government.”

      The district court accepted Duncan’s guilty plea and adopted the plea



                                           2
agreement. At sentencing, the government made the recommendations listed in the

plea agreement and moved for a § 5K1.1 substantial assistance departure, which

the court granted. The court then sentenced Duncan to 135 months imprisonment

and ten years of supervised release. Duncan did not appeal that sentence.

       On September 6, 2007, Duncan, proceeding pro se, filed a petition for a writ

of mandamus, asking the court to order the government to make a Rule 35(b)

motion on his behalf. He argued that the plea agreement with the government

required it to file a Rule 35(b) motion because he had continued cooperating after

being sentenced. He also requested, if necessary, an evidentiary hearing on

whether his continued cooperation was substantial assistance. The district court

denied his petition, and Duncan appealed.

                                               II.

       Duncan first contends that the district court erred in denying his petition for

a writ of mandamus because the government violated an enforceable plea

agreement by failing to make a Rule 35(b) motion on his behalf.1 “Mandamus is

       1
           The government contends that Duncan’s complaint should be considered a motion to
vacate, correct, or amend a sentence under 28 U.S.C. § 2255, not a petition for a writ of
mandamus. However, “[t]he plaintiff is the master of the complaint,” and Duncan clearly
specified that he was seeking a writ of mandamus. United States v. Jones, 125 F.3d 1418, 1428
(11th Cir. 1997). While we can “sometimes ignore the legal label that a pro se litigant attaches
to a motion . . . to create a better correspondence between the substance of a pro se motion’s
claim and its underlying legal basis,” Castro v. United States, 540 U.S. 375, 381–82, 124 S. Ct.
786, 791–92 (2003), a writ of mandamus is an established way of enforcing a plea agreement,
see, e.g., In re Arnett, 804 F.2d 1200 (11th Cir. 1986). Therefore, we will treat Duncan’s

                                                3
proper if (1) the Plaintiffs can show a clear right to the relief sought; (2) the

Defendants have a clear, non-discretionary duty to act; and (3) no other remedy is

available.” Nyaga v. Ashcroft, 323 F.3d 906, 911 (11th Cir. 2003). Because

Duncan cannot show that the government has “a clear, non-discretionary duty to

act,” he is not entitled to a writ of mandamus.

       The plea agreement between Duncan and the government stated that, if the

government determined that Duncan had provided substantial assistance, it would

make either a U.S.S.G. § 5K1.1 motion or a Rule 35(b) motion, depending on

when Duncan’s cooperation was complete. The government considered Duncan’s

cooperation to be complete at sentencing and accordingly made a §5K1.1 motion at

Duncan’s sentence hearing. This is all that the plea agreement required, and the

government complied with it. Further, even if Duncan gave substantial assistance

after sentencing, the governmnet’s only obligation was to “consider whether to

file” a Rule 35(b) motion. The plea agreement did not impose a “clear, non-

discretionary duty” on the government to make a Rule 35(b) motion after it had

already made a § 5K1.1 motion on Duncan’s behalf.

       There are some times when it is appropriate for a court to review the

government’s decision not to make a Rule 35(b) motion even absent a plea



petition for a writ of mandamus as exactly that.

                                                   4
agreement, but those are limited to “when there is an allegation and a substantial

showing that the prosecution refused to file a substantial assistance motion because

of a constitutionally impermissible motivation.” United States v. Forney, 9 F.3d

1492, 1502 (11th Cir. 1993). Duncan has not even alleged that the government had

an unconstitutional motivation, so that exception is inapplicable here.

      Duncan also contends that the district court should have at least held an

evidentiary hearing to determine if the assistance he gave the government after he

was sentenced was “substantial.” The “decision to grant an evidentiary hearing [is]

generally left to the sound discretion of district courts.” Schriro v. Landrigan, ___

U.S. ___, ___, 127 S. Ct. 1933, 1939 (2007). We review that decision only to

determine whether the district court abused its discretion. United States v. Mena,

863 F.2d 1522, 1528 (11th Cir. 1989). The absence of a clear, non-discretionary

duty on the government to make a Rule 35(b) motion on Duncan’s behalf prevents

him from obtaining a writ of mandamus, which means that proof of his substantial

assistance could not have changed the outcome of his petition. Therefore, the

district court did not abuse its discretion when it denied him an evidentiary

hearing.

      AFFIRMED.




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