Opinion
Case No. CR605-034 Case No. CV607-043
02-18-2015
UNITED STATES OF AMERICA v. ROYLAND KICKLIGHTER
REPORT AND RECOMMENDATION
Defendant Royland Kicklighter moves the Court to compel the government to "uphold its obligations under [his] plea agreement" by filing a Fed. R. Cr. P. 35 motion to reduce his sentence. Doc. 105 at 8. He says he has provided the government with valuable assistance and is thus entitled to Rule 35 relief. Id. The government opposes. Doc. 107.
Some background: Kicklighter received a 180-month sentence after he pled guilty to distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(l)(Count 2). Docs. 30 & 31. At sentencing, the government told the Court that
Mr. Kicklighter has been cooperative with us. He has tried to do the right things. There are some matters that are outstanding that may at some point result in a potential for a Rule 35 to be filed in
this case. They are ongoing, and have not been resolved at this time. So, we are not going to ask the Court to take that into consideration today beyond the fact that we are obligated to tell the Court under the plea agreement that he is cooperating, and that he has made efforts to cooperate that may yet prove fruitful. On the other hand, Mr. Kicklighter is 56 years old. And although he is not very disagreeable to talk to, he has been a crook his whole life. And that is what it boils downs to. He has got an atrocious criminal history. But in this case, he did agree to plead guilty early. He has been cooperative. He took responsibility.Doc. 54 at 9-10.
The Court later granted him an out-of-time appeal, docs. 57 & 64, which was unsuccessful. Doc. 69. In 2010, Kicklighter unsuccessfully moved to compel the government to file a Rule 35 motion. Docs. 72 & 76. He basically complained of the same plea breach in a 28 U.S.C. § 2255 motion (doc. 79), which this Court denied as untimely. Docs. 80, 84 & 85.
In substance, then, Kicklighter's latest compel motion (doc. 105) is just a repackaged § 2255 motion, which means it must be DISMISSED as successive. Washington v. United States, 173 F. App'x. 792, 794 (11th Cir. 2006) (affirming district court's rejection of similar "motion to compel specific performance" of plea agreement as a successive § 2255 motion; the claim was barred by law of the case doctrine, in that it had been raised and decided adversely to movant in his initial § 2255 motion); Schweitzer v. United States, 354 F. App'x 601, 602 (3d Cir. 2009) (affirming denial of "complaint [that] primarily sought redress for an alleged breach of a plea agreement" as a successive § 2255 motion).
Alternative grounds support dismissal. This Court cannot review the government's refusal to file a Rule 35 motion unless the defendant both alleges and makes a substantial showing that the refusal is based on some constitutionally impermissible motivation. United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009). Kicklighter has made no such allegation here, much less a substantial showing thereof.
Finally, the government has not breached Kicklighter's plea agreement by failing to file a Rule 35 motion. The plea agreement does not " obligate []" the government to file a sentence-reduction motion, as Kicklighter claims. Doc. 105 at 9. Rather, the government agreed only to "consider whether such cooperation qualifies as 'substantial assistance' pursuant to . . . Rule 35." Doc. 30 at 4. "The determination as to whether the defendant has provided 'substantial assistance' rests solely with the government." Id.
Kicklighter is directed to abstain from filing any more baseless compulsion motions in any form or under any label. Finally, the Clerk is DIRECTED to open a new civil case file and duplicate into it Kicklighter's latest motion to compel, doc. 105, as a "Motion for 28 U.S.C. § 2255 Relief." Should this Report and Recommendation be adopted, the Clerk shall designate the § 2255 motion as successive and close that case.
SO REPORTED AND RECOMMENDED this 18th day of February, 2015.
/s/ _________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA