Dear Mr. Phillips:

Petitioner Gregory S. Phillips ("petitioner") has filed a petition seeking a writ of mandamus ("petition") and a motion to proceed in forma pauperis. I have reviewed both, and this is my decision granting the motion to proceed in forma pauperis but dismissing the petition.

Petitioner has filed the information required to support his motion to proceed in forma pauperis. 10 Del. C., ch. 88. He has established he is indigent. Accordingly, I grant the motion to proceed in forma pauperis. That does not, however, mean that the action proceeds. Instead, the Court reviews the petition to determine if it is factually or legally frivolous or if it is malicious. 10 Del. C. § 8803(b).

Petitioner asks that the Court enter an order instructing that the Department of Correction ("respondent") place him in the Key Program. It is necessary also to review the file of State v. Phillips, Def. ID# 9612002787. The sentencing order in that matter dated March 2, 2001, shows the following.

With regard to Cr. A. No. 96-12-0343, the Court sentenced petitioner as follows:

Effective March 2, 2001, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 3 years.

Upon successful completion of the Key Program, the balance of the Level 5 is suspended, and the defendant is placed at Level 4 Residential Substance Abuse Treatment Program for 1 year. Upon successful completion of RSATP, the balance of the Level 4 sentence is suspended for probation for 6 months at Level 3 Crest Aftercare.

As to Cr. A. No. 96-12-0337, the Court sentenced petitioner as follows:

Effective March 2, 2001, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 6 months.

Upon successful completion of the Key Program, the balance of the Level 5 is suspended for probation for 6 months at Level 3 Aftercare.

The following sentence was entered with regard to Def. ID# 9808002280, Cr. A. No. 98-08-0227:

Effective March 2, 2001, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 18 months.

Upon successful completion of the Key Program, any balance of the Level 5 sentence is suspended for probation for 18 months at Level 3.

Apparently, respondent dismissed petitioner from the Key Program, allegedly only one week before he completed it. His petition requests that the Court order respondent to place him back into the Key Program.

As the Supreme Court explained in Guy v. Greenhouse, Del. Supr., No. 285, 1993, Walsh, J. (December 30, 1993):

Under Delaware law, the basis for issuance and the scope of relief available through a writ of mandamus under Delaware law are both quite limited. Mandamus is issuable not as a matter of right, but only in the exercise of sound judicial discretion. Moreover, when directed to an administrative agency or public official, mandamus will issue only to require performance of a clear legal or ministerial duty. For a duty to be ministerial and thus enforceable by mandamus, the duty must be prescribed with such precision and certainty that nothing is left to discretion or judgment. [Citations omitted.]

In the case at hand, there is no clear legal or ministerial duty existing on the part of respondent with regard to petitioner's participation in the Key Program; i.e., the Court did not order that respondent place him in the Key Program and keep him there until he completes it. Respondent has the discretion to determine whether petitioner may participate in the program and petitioner has no constitutionally protected interest liberty interest in his prison classification status. Winward v. Taylor, 788 A.2d 133 (Del. 2001). See Bagwell v. Prince, 683 A.2d 58 (1996) (respondent's decisions regarding placement of inmates is discretionary). Since no clear legal or ministerial duty exists, then petitioner has no right to a writ of mandamus. Accordingly, I dismiss the petition with prejudice.

IT IS SO ORDERED.

Very truly yours,

T. Henley Graves