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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:01cr14-RH/WCS

 4:05cv139-RH/WCS

ALFRED FOOTMAN,

Defendant.

__________________________________/

ORDER DENYING MOTION FOR SPECIFIC PERFORMANCE

This matter is before the court on the magistrate judge’s report and

recommendation (document 80), and the objections thereto (document 81). I have

reviewed de novo the issues raised by the objections. 

The report and recommendation addresses a motion filed by defendant that

included two apparently unrelated assertions: first, that the government breached

the plea agreement by failing to file a substantial assistance motion based on

assistance provided by defendant’s son; and second, that defendant is entitled to

relief under United States v. Booker, 125 S. Ct. 738 (2005). The report and

recommendation characterized defendant’s motion as a second or successive

motion under 28 U.S.C. §2255. Such a motion would properly be denied as

beyond this court’s jurisdiction, because no authorization has been granted by the

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1

 There are at least colorable grounds for this assumption. Section 2255

applies to claims that a sentence “was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.” 28 U.S.C. §2255. It is far from clear that

this language extends to a defendant who claims his or her sentence is valid but

that the government should be compelled, under a plea agreement, to file a

substantial assistance motion, thus authorizing the court, if it wishes, to reduce the

defendant’s valid sentence. 

Case No: 4:01cr14-RH/WCS and 4:05cv139-RH/WCS

Court of Appeals for the filing of a second or successive §2255 motion. 

Defendant now asserts, however, that his motion is not a §2255 motion at

all, but a motion for specific performance of the plea agreement. I assume for

purposes of this order that such a motion for specific performance is not a §2255

motion.1

 I also assume, for purposes of this order, that defendant’s motion should

be considered de novo on the merits.

Even considered in that fashion, defendant’s motion is unfounded. Indeed,

defendant previously raised and lost on the merits this very same contention (that

he should have received a substantial assistance motion based on his son’s

assistance) as part of an earlier §2255 motion. See Report and Recommendation

entered May 3, 2004 (document 67) at 16-18; Order of May 17, 2004 (document

69) at 4 (adopting report and recommendation). That ruling was and remains

correct. See, e.g., Wade v. United States, 504 U.S. 181, 112 S. Ct. 1840, 118 L. Ed.

2d 524 (1992) (holding in case not involving plea agreement that court could

review government’s failure to file substantial assistance motion only for

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Case No: 4:01cr14-RH/WCS and 4:05cv139-RH/WCS

unconstitutional motive such as racial or religious discrimination); United States v.

Nealy, 232 F.3d 825 (11th Cir. 2000) (stating in case not involving plea agreement

that government has discretion whether or not to file substantial assistance motion

and that government’s decision is reviewable only for unconstitutional motive, and

upholding government’s election, based on defendant’s commission of another

offense, not to file a substantial assistance motion, even though defendant in fact

provided substantial assistance); United States v. Forney, 9 F.3d 1492 (11th Cir.

1993) (suggesting in dicta that plea agreement that preserves government

discretion whether to file substantial assistance motion does not authorize court to

review under “bad faith” standard the government’s exercise of that discretion);

United States v. Wilcoxson, 77 Fed. Appx. 505 (11th Cir. 2003) (unpublished table

decision) (applying Forney as basis for upholding denial of relief in case from this

district involving plea agreement with substantial assistance provision

substantively identical to provision in the case at bar).

Other circuits have taken a different approach. See, e.g., United States v.

Rexach, 896 F.2d 710 (2d Cir. 1990) (holding that when a plea agreement provides

that substantial assistance will be determined in the discretion of the prosecutor,

then "the Court’s role is limited to deciding whether the prosecutor has made its

determination in good faith”). But that of course does not help defendant in the

case at bar; this case is being litigated in the Eleventh Circuit and thus is controlled

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Case No: 4:01cr14-RH/WCS and 4:05cv139-RH/WCS

by Forney. And while the circuit split on this issue presents a nice question, it

ultimately makes no difference in the case at bar, because defendant has alleged no

facts indicating that the government acted either with an unconstitutional motive or

even in bad faith. To the contrary, the government has provided a good faith

explanation of its decision not to file a substantial assistance motion, as set forth in

the May 2004 report and recommendation. 

Finally, to the extent defendant’s motion could be construed as also asserting

a Booker claim, the instant report and recommendation is correct that the

contention is not properly before the court, because at this point such a claim could

only be made by motion under §2255, and the Court of Appeals has not authorized

the filing of a second or successive §2255 motion.

For these reasons,

IT IS ORDERED:

The report and recommendation (document 80) is ACCEPTED. 

Defendant’s “motion for specific performance” (docketed twice, as documents 78

and 79) is DENIED. 

SO ORDERED this 16th day of June, 2005.

s/Robert L. Hinkle 

Chief United States District Judge

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