            Case: 12-10143     Date Filed: 08/03/2012   Page: 1 of 6

                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-10143
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:99-cr-00029-WTH-TBS-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

EDWARD LEE BARTLEY,

                                                            Defendant-Appellant.

                         ________________________

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

                               (August 3, 2012)

Before JORDAN, EDMONDSON, and BLACK, Circuit Judges.

PER CURIAM:

     Edward Lee Bartley, proceeding pro se, appeals the district court’s denial of
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his motion to compel the government to file a motion for reduction of sentence

pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. After a review of

the record and the parties’ briefs, we affirm.

       On August 12, 1999, a grand jury returned an indictment charging Mr. Bartley

with nine counts of distributing crack cocaine in violation of 18 U.S.C. § 841(a)(2).

Mr. Bartley pled guilty to one count of that indictment, and in February of 2001 the

district court sentenced him to 211 months’ imprisonment, to run concurrently with

a state prison sentence he was already serving.1

       The plea agreement provided that Mr. Bartley agreed to cooperate fully with

the government, and that the government would consider whether such cooperation

amounted to “substantial assistance” for purposes of filing a Rule 35(b) motion:

              Defendant agrees to cooperate fully with the United States in the
       investigation and prosecution of other persons ... If the cooperation is
       completed subsequent to sentencing, the government agrees to consider
       whether such cooperation qualifies as “substantial assistance” in
       accordance with the policy of the United States Attorney for the Middle
       District of Florida, warranting the filing of a motion for a reduction of
       sentence within one year of the imposition of sentence pursuant to Fed.
       R. Crim. P. 35(b). In any case, the defendant understands 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


       1
         Mr. Bartley did not pursue a direct appeal. In 2002, however, he filed a motion to vacate
pursuant to 28 U.S.C. § 2255. The § 2255 motion was denied by the district court, and Mr.
Bartley’s request for a certificate of appealability was denied by both the district court and this
court.

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       with the United States Attorney for the Middle District of Florida, and
       the defendant agrees that defendant cannot and will not challenge that
       determination, whether by appeal, collateral attack, or otherwise.
R1:21 at 4–5. The government did not file a Rule 35(b) motion on Mr. Bartley’s

behalf.

       In 2006, Mr. Bartley filed his first motion regarding the government’s decision

to not file a Rule 35(b) motion. Mr. Bartley sought an order compelling the

government “to fully evaluate [his] post-sentence cooperation in the investigation and

prosecution of [Avonda Dowling],2 then to make a good faith determination ... as to

whether [his] post-sentence cooperation qualifies as ‘substantial assistance’ for

purposes of” Rule 35(b). See R1:52 at 1–2. In response to the motion, the government

stated that the cooperation did not amount to substantial assistance as defined by Rule

35(b) because Mr. Bartley provided only general information that was already known

to the government and which was not useful at Ms. Dowling’s trial. The district court

denied Mr. Bartley’s motion, finding that the government provided a legitimate

reason for refusing to file a Rule 35(b) motion, namely that Mr. Bartley’s cooperation

did not amount to substantial assistance. The district court also noted that Mr. Bartley

failed to prove that the government acted with bad faith in making its decision. Mr.

Bartley did not appeal.

       2
       That prosecution was filed in the Southern District of Florida and styled United States v.
Avonda Dowling, et. al., Case No. 02-20936-Cr-Seitz.

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      On December 2, 2011, Mr. Bartley filed his second motion regarding the

government’s failure to file a Rule 35(b) motion. Unlike the motion Mr. Bartley had

filed in 2006, this motion did not seek to enforce the terms of the plea agreement, but,

instead, sought to specifically enforce an alleged oral promise made to him by the

government that it would file a Rule 35(b) motion as a result of his cooperation.

Specifically, Mr. Bartley stated that he “was promised orally a motion for sentence

reduction years after he entered the plea agreement therefore the plea agreement can

not represent what the agents promised him when they debriefed him time and time

again before he was writted back to testify for the government.” R1:61 at 3 (sic).

      Before the government filed a response, the district court sua sponte denied the

motion. The district court found that under Wade v. United States, 504 U.S. 181, 185

(1992), Mr. Bartley had failed to make the requisite threshold showing that the

government’s decision not to file the motion was based on an unconstitutional

motive—e.g., Mr. Bartley’s race or religion—or identify any similarly situated

defendants in support of his equal protection claim. Mr. Bartley now appeals the

district court’s denial of his 2011 motion to enforce the alleged oral promise.

      The government argues that we should only decide whether the district court

abused its discretion in denying Mr. Bartley’s motion to compel, because that motion

could only have been construed as a petition for a writ of mandamus. See generally

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Cash v. Barnhart, 327 F.3d 1252, 1257–58 (11th Cir. 2003) (“Although the issuance

of a writ of mandamus is a ‘legal remedy, it is largely controlled by equitable

principles and its issuance is a matter of judicial discretion.’”) (quoting Carter v.

Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). We need not address the government’s

argument. Even if the standard of review is de novo, we conclude that Mr. Bartley’s

motion was properly denied.

      Mr. Bartley’s motion was based on a purported oral promise made to him by

the government that it would file a Rule 35(b) motion. The motion was not sworn,

was not accompanied by an affidavit or declaration under penalty of perjury, and was

not specific as to when the purported promise was made or by whom. Instead, Mr.

Bartley merely stated that the government orally agreed (at some point after the entry

of the plea) to file a Rule 35(b) motion on his behalf. We have held that when a

district court is presented with such conclusory allegations in a motion or petition it

may deny relief without holding an evidentiary hearing. See Lynn v. United States,

365 F.3d 1225, 1238–39 (11th Cir. 2004) (conclusory affidavits alleging government

violation of witness sequestration rule, which did not provide any names or point out

what testimony was tailored, were insufficient to require a hearing under § 2255);

Tejada v. Dugger, 941 F.2d 1551, 1559–1560 (11th Cir. 1991) (petitioner is not

entitled to evidentiary hearing in habeas corpus proceeding under 28 U.S.C. § 2254

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when he only makes conclusory allegations in his petition). This is one of those cases.

Given the deficiencies in Mr. Bartley’s motion, the district court did not err in

denying it without a hearing.

      AFFIRMED.




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