US v. Joel Tadlock

Filing 920091005

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6050

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOEL WAYNE TADLOCK, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:05-cr-00670-TLW-1)

Submitted:

September 29, 2009

Decided:

October 5, 2009

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH, JR., Florence, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joel Wayne Tadlock appeals the district court's denial of his motion to compel the Government to file a Fed. R. Crim. P. 35(b) motion for reduction of sentence and his petition for a writ of mandamus. with Tadlock's v. attorney has 386 filed U.S. a 738 brief in

accordance

Anders

California,

(1967),

stating there are no meritorious issues for appeal and conceding the district court properly denied both the motion to compel and the petition for a writ of mandamus. Although informed of his

right to file a pro se supplemental brief, Tadlock has not done so. For the reasons discussed below, we affirm. It is well-settled that whether to file a Rule 35(b) motion is a matter left to the Government's discretion. Fed. R.

Crim. P. 35(b); United States v. Dixon, 998 F.2d 228, 230 (4th Cir. 1993). A court may remedy the Government's refusal to move

for a reduction of sentence if: (1) the Government has obligated itself in the plea agreement to move for a reduction; or (2) the Government's refusal to move for a reduction was based on an unconstitutional motive. 185-86 (1992). that Here, the Wade v. United States, 504 U.S. 181, Tadlock's decision the sole plea agreement to file of unequivocally a Rule 35(b)

establishes motion

whether

rested

within

discretion

the

Government.

Moreover, there is no evidence that the Government's refusal to file a Rule 35(b) motion was 2 based on an unconstitutional

motive.

Accordingly, we find no error by the district court in

denying Tadlock's motion to compel. We further find the district court did not err in

denying Tadlock's petition for a writ of mandamus.

Mandamus is

a drastic remedy to be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). extremely reluctant to grant a writ of mandamus." 811 F.2d 818, 827 (4th Cir. 1987). "Courts are In re Beard,

Mandamus relief is available

only when the petitioner has a clear and indisputable right to the relief sought and there are no other adequate means for obtaining the relief. Allied Chem. Corp. v. Daiflon, Inc., 449 The district court

U.S. 33, 35 (1980); Beard, 811 F.2d at 826.

properly concluded the relief Tadlock sought was not available by way of mandamus. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's ruling. This

court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be

counsel

believes

that

petition

frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral

a copy thereof was served on the client. 3

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

4