DLD-219                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-2242
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                               RODNEY MURRAY
                                a/k/a Rodney Miller,
                                                     Appellant
                       __________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Crim. No. 02-cr-00172-32)
                      District Judge: Honorable Stewart Dalzell
                      __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 23, 2011

          Before: BARRY, FISHER and VAN ANTWERPEN, Circuit Judges.

                                 (Filed: July 14, 2011)
                                     ____________

                                       OPINION
                                     ____________

PER CURIAM

      Appellant Rodney Murray, after pleading guilty to controlled substance violations,

was sentenced in September, 2004 in the United States District Court for the Eastern

District of Pennsylvania to a term of imprisonment of 250 months and eight years of
supervised release. Just over six years later, on January 24, 2011, Murray filed a petition

for a writ of mandamus, 28 U.S.C. § 1361, in the sentencing court against two United

States Department of Justice employees. Murray alleged that “Special Agent

Vandenwigen” and Bureau of Prisons (“BOP”) lieutenant T.K. Lewis entered into a

contract with him for his cooperation in an investigation of a certain BOP correctional

officer who was suspected of selling cigarettes and cellular telephones, and a certain BOP

recreation specialist who was suspected of prostitution. In exchange for Murray’s

cooperation, the agents allegedly agreed to contact the United States Attorney in

Philadelphia, in order to get a motion filed on Murray’s behalf for a reduced sentence.

Murray contended that, after he risked his life by wearing a wire, Vandenwigen and

Lewis reneged on the contract and did not help him get his sentence reduced. Murray

asked the District Court to order Vandenwigen and Lewis to honor the contract by

contacting the prosecutor.

       In an order entered on March 25, 2011, the District Court, who was also the

sentencing judge, denied mandamus relief without prejudice, and also denied Murray’s

implied request for appointment of counsel. The court reasoned that there was no

cooperation agreement, and Murray had not, in the alternative, made the required

showing under Wade v. United States, 504 U.S. 181 (1992). Therefore, Murray had not

shown a clear and indisputable right to the writ.




                                             2
       Murray appealed. We have jurisdiction under 28 U.S.C. § 1291.1 Our Clerk

advised Murray that the appeal was subject to summary affirmance under Third Cir. LAR

27.4 and I.O.P. 10.6. He was invited to submit argument in writing, but he has not done

so.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. We review

a District Court’s mandamus decision for an abuse of discretion, except that we review

non-discretionary elements of the decision de novo. See Stehney v. Perry, 101 F.3d 925,

929 (3d Cir. 1996). A writ of mandamus is an extreme remedy that is invoked only in

extraordinary situations. See Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976).

To justify the use of this extraordinary remedy, a petitioner must show both a clear and

indisputable right to the writ and that he has no other adequate means to obtain the relief

desired. See Haines v. Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992). In addition,

“the issuing court, in the exercise of its discretion, must be satisfied that the writ is




       1
         We conclude that this case is distinguishable from Borelli v. City of Reading,
532 F.2d 950 (3d Cir. 1976) (per curiam). Although the District Court’s dismissal was
without prejudice, a district court lacks authority to modify a sentence for substantial
assistance in the absence of an agreement or where the required showing under Wade has
not been made, see United States v. Higgins, 967, F.2d 841, 845 (3d Cir. 1992). Thus,
Murray can do nothing to cure his petition, making the order final and appealable, cf.
Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461 n.6.
(3d Cir. 1994) (where District Court dismisses case based on justiciability, plaintiffs can
do nothing to cure their complaint).


                                               3
appropriate under the circumstances.” In re: Pressman-Gutman Co., Inc., 459 F.3d 383,

399 (3d Cir. 2006) (internal quotations removed).

       Murray did not show a clear and indisputable right to the writ. See Haines, 975

F.2d at 89. Federal Rule of Criminal Procedure 35(b) provides for the reduction of a

defendant’s criminal sentence if the defendant provides “substantial assistance in

investigating or prosecuting another person.” But, the United States Supreme Court held

in Wade, 504 U.S. 181, that, where there is no agreement, the prosecutor’s decision not to

file a motion for a reduction in sentence based on substantial assistance is reviewable

only where the refusal is based on unconstitutional grounds, such as his race or religion.

See id. at 185-86. Cf. United States v. Isaac, 141 F.3d 477, 481 (3d Cir. 1998)

(acknowledging Wade’s holding that, absent a plea agreement, prosecutor has “almost

unreviewable discretion over whether to file a substantial assistance motion”). Moreover,

the defendant under Wade must make a “substantial threshold showing” of impropriety in

the government’s refusal to seek a sentence reduction. Id. at 185. “[A] claim that a

defendant merely provided substantial assistance will not entitle a defendant to a remedy

or even discovery or an evidentiary hearing.” Id. at 186. Murray did not allege

unconstitutional grounds for the government’s refusal to file a motion in his case, let

alone make “a substantial threshold showing” thereof. He alleged only that he gave

assistance at great personal expense, but this is not sufficient under Wade, and certainly

does not warrant a writ of mandamus.



                                             4
      For the foregoing reasons, we will summarily affirm the order of the District Court

denying mandamus relief and Murray’s request for appointment of counsel.




                                           5
