IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GEORGE B. SHAW, )
)
Petitioner, )
)
v. ) C.A. No. N18M-10-252 ALR
)
DANA METZGER, )
)
Respondent. )
Submitted: October 30, 2018
Decided: January 15, 2019
Upon Application to Proceed In Forma Pauperis
GRANTED
Upon Petition for Writ of Mandamus
DISMISSED
ORDER
Upon consideration of the Petition for Writ of Mandamus and Application to
Proceed In Forma Pauperis; the Superior Court Rules of Civil Procedure; the facts
arguments, and legal authorities set forth by Petitioner George B. Shaw
(“Petitioner”); and the entire record in this case, the Court hereby finds as follows:
1. Petitioner pled guilty to Aggravated Acts of Intimidation and Stalking.
By Order dated March 15, 2013, effective November 21, 2012, Petitioner was
sentenced as follows: for Aggravated Acts of Intimidation, 8 years at Level 5,
suspended after 6 years for 2 years at Level 4 Halfway House, suspended after 6
months for 18 months at Level 3; and for Stalking, 3 years at Level 5, suspended
after 2 years for 1 year at Level 3. Petitioner’s maximum expiration date is
November 21, 2020.
2. Petitioner has filed the information required to support the Application
to Proceed In Forma Pauperis.1 Petitioner has established that he is indigent.
Accordingly, the Application to Proceed In Forma Pauperis is granted.
3. As required by statute, the Court now reviews the Petition for Writ of
Mandamus to determine if it is factually or legally frivolous or if it is malicious.2
4. Petitioner filed the Petition for Writ of Mandamus that is presently
before this Court on October 29, 2018, alleging that Petitioner is entitled to a
sentence modification pursuant to 11 Del. C. § 4217(b), and seeking an order
directing the Department of Corrections (“DOC”) to file an application for
Petitioner’s release.
5. The Superior Court has jurisdiction to issue writs of mandamus under
10 Del. C. § 564. The Court may issue a writ of mandamus to “a State officer,
tribunal, board, or agency to compel the performance of an official duty.” 3 A writ
1
See 10 Del. C. § 8802.
2
10 Del. C. § 8803(b). See Phillips v. Dep’t of Corr., 2004 WL 691769, at *1 (Del.
Super. Mar. 2, 2004) (granting the petitioner’s motion to proceed in forma pauperis
does not imply that the action proceeds, but rather the Court must review the petition
to determine whether it is frivolous or malicious).
3
Land v. Carroll, 2002 WL 31546530, at *1 (Del. Nov. 14, 2002). See also Clough
v. State, 686 A.2d 158, 159 (Del. 1996).
2
of mandamus is an “extraordinary remedy.”4 The Court will only issue a writ where
the petitioner has demonstrated that (1) there is a clear right to the performance of
the duty; (2) no other adequate remedy is available; and (3) the agency arbitrarily
failed or refused to perform its duty.5 Therefore, a writ of mandamus will not be
issued to create a duty or to compel a discretionary act.6
6. The Court retains jurisdiction to modify any sentence of incarceration
at Level V in excess of one year.7 Such sentences may not be reduced by the Court
except on application of DOC.8 The DOC may file an application for modification
of an inmate’s sentence “for good cause shown which certifies that the release of the
defendant shall not constitute a substantial risk to the community or the defendant’s
own self.”9 It is within DOC discretion to apply for modification of an inmate’s
sentence under 10 Del. C. § 4217.10
7. The Petition for Writ of Mandamus is factually and legally frivolous.
Petitioner is legally detained and has not established a clear right for DOC to submit
an application for modification of Petitioner’s sentence. Because the Petition does
4
Johnson v. Phelps, 2009 WL 597625, at *2 (Del. Super. Feb. 20, 2009).
5
Land, 2002 WL 31546530, at *1 (citing In re Bordley, 545 A.2d 619, 620 (Del.
1988)).
6
King v. State, 2015 WL 317128, at *1 (Del. Jan. 23, 2015); Capital Educators Ass’n
v. Camper, 320 A.2d 782, 786 (Del. Ch. 1974).
7
11 Del. C. § 4217(a).
8
State v. Sturgis, 947 A.2d 1087, 1093 (Del. 2008).
9
11 Del. C. § 4217(b).
10
King, 2015 WL 317128, at * 2.
3
not seek the performance of a clear legal duty, but instead involves a matter of
discretion, Petitioner is not entitled to the relief sought and the Petition for Writ of
Mandamus must be dismissed.11
NOW, THEREFORE, this 15th day of January, 2019, Petitioner’s Motion
to Proceed In Forma Pauperis is GRANTED. The Petition for Writ of
Mandamus is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Andrea L. Rocanelli
________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli
11
See King, 2015 WL 317128, at *2 (affirming the Superior Court’s dismissal of the
petition for writ of mandamus because the petitioner failed to demonstrate that the
DOC had a duty to declare the petitioner eligible for sentence modification under 11
Del. C. § 4217 or to submit an application for modification of the petitioner’s
sentence); Phillips, 2004 WL 691769, at * 2 (dismissing the petition for writ of
mandamus because the matter was within the discretion of the DOC and the
petitioner had no clear legal or ministerial right to be placed in the Key Program).
4