GEORGE B. SHAW, Petitioner,
DANA METZGER, Respondent.
Submitted: October 30, 2018
Application to Proceed In Forma Pauperis GRANTED
Petition for Writ of Mandamus DISMISSED
Honorable Andrea L. Rocanelli, Judge.
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:
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,
Petitioner has filed the information required to support the
Application to Proceed In Forma
Pauperis. Petitioner has established that he is
indigent. Accordingly, the Application to Proceed In
Forma Pauperis is granted.
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.
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
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." A writ of mandamus is an
"extraordinary remedy." 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. Therefore, a writ
of mandamus will not be issued to create a duty or to compel
a discretionary act.
Court retains jurisdiction to modify any sentence of
incarceration at Level V in excess of one year. Such sentences
may not be reduced by the Court except on application of
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." It is within DOC discretion to
apply for modification of an inmate's sentence under 10
Del. C. § 4217.
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 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.
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.