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In re Petition of Smith

Supreme Court of Delaware

May 29, 2014

IN THE MATTER OF THE PETITION OF FREDERICK W. SMITH, JR. FOR A WRIT OF MANDAMUS

Submitted: May 14, 2014.

Motion for Rehearing en Banc filed 6/9/14;

Denied 6/12/14.

Case Closed June 12, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Before STRINE, Chief Justice, BERGER and RIDGELY, Justices.

OPINION

Henry duPont Ridgely, Justice.

ORDER

This 29th day of May 2014, upon consideration of the petition of Frederick W. Smith, Jr. for an extraordinary writ of mandamus, it appears to the Court that:

(1) The petitioner, Frederick W. Smith, Jr., seeks to invoke the original jurisdiction of this Court, pursuant to Supreme Court Rule 43, to issue a writ of mandamus directing the Superior Court and the Department of Justice to release him from prison. The State of Delaware has filed an answer and motion to dismiss Smith's petition. After careful review, we find that Smith failed to seek leave of the Court before filing his petition as required by this Court's September 10, 2009 order[1] and that his petition manifestly fails to invoke this Court's original jurisdiction. Accordingly, the petition must be dismissed.

(2) In November 1993, a Superior Court jury convicted Smith of two counts of unlawful sexual intercourse in the second degree and single counts of unlawful sexual penetration in the third degree and assault in the third degree. These convictions were confirmed on direct appeal.[2] Since then, Smith has filed numerous unsuccessful motions and petitions seeking state postconviction, state habeas, and federal habeas relief.[3]

(3) By order dated September 10, 2009 (" September 10, 2009 Order" ), this Court concluded that " Smith's excessive and repetitious filings constitute[d] an abuse of process of this Court" and " enjoined [him] from filing any future claims in this Court concerning his 1993 convictions without first seeking leave of court." [4] Smith was also required to file an affidavit containing the 10 Del. C . § 8803(e) certifications with any future motion to proceed in forma pauperis in any matters before this Court concerning his 1993 convictions.

(4) On May 5, 2014, Smith filed a petition for a writ of mandamus concerning his 1993 convictions. The petition was based on out-of-court statements Smith had challenged in prior filings.[5] The State answered and moved to dismiss Smith's petition on the grounds that it was barred by the September 10, 2009 Order ...


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