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holding that a party's failure to register a timely objection to insufficient service of process procedurally bars it from raising the argument later
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No. 531, 1998.
August 30, 1999.
Appeal from the Superior Court, New Castle County, CA 98M-11-003.
AFFIRMED
Unpublished Opinion is below.
SHERESE E. BREWINGTON-CARR, Warden, and M. JANE BRADY, Attorney General of the State of Delaware, Respondents Below, Appellants, v. GREGORY A. COLEMAN, Petitioner Below, Appellee. No. 531, 1998. Supreme Court of Delaware. Submitted: August 17, 1999. Decided: August 30, 1999.
Appeal from Superior Court of the State of Delaware in and for New Castle County, C. A. No. 98M-11-003.
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This 30th day of August, 1999, it appears to the Court that:
(1) On May 6, 1998, the Superior Court sentenced Petitioner below-appellee, Gregory A. Coleman, to 18 months at Level V, suspended after 30 days for 17 months at Level IV Passageway or Crest programs. The court imposed this sentence, effective April 2, 1998, because Coleman had violated his probation from an earlier sentence.
(2) On June 16, 1998, 75 days after the effective date of the sentence, the classification board of the Department of Correction ("DOC") refused to recommend Coleman for either the Passageway, Crest, or work release programs. On July 7, 1998, DOC placed Coleman on the waiting list for the Crest program. On October 28, 1998, Coleman applied for habeas corpus relief in the Superior Court, pursuant to 10 Del. C. § 6902, because DOC had not yet placed him in a Level IV program.
(3) On November 5, 1998, the Superior Court ordered Respondents below-appellants, Sherese E. Brewington-Carr, Warden, and M. Jane Brady, Attorney General of the State of Delaware, to produce Coleman in court on November 16, 1998 for a hearing on his habeas petition. Although the Warden received notice of this order by facsimile, Coleman was not produced on November 16, 1998 due to an administrative error. The prosecutor present at the hearing told the court that the State would not object to a modification of Coleman's sentence. After the hearing, the Court suspended the ten remaining months of Coleman's Level V sentence for Level III supervision pending space at Level IV home confinement. In addition, the court ordered the Warden to appear on November 19, 1998 to show cause why she should not be held in contempt for failing to produce Coleman.
(4) At the November 19, 1998 hearing, of which Coleman was not a participant, the State explained for the first time that, due to other convictions, Coleman was not eligible for Level IV confinement until July 7, 1998. The State argued that, as of that date, the classification ordered by the Superior Court had been accomplished, and Coleman was kept at Level V only until a bed became available at Level IV. The court accepted these explanations and did not hold the Warden in contempt.
(5) Nonetheless, the State appeals the Superior Court's grant of habeas corpus relief, arguing that Coleman's petition should have been dismissed because of insufficient service of process. Namely, the State argues that the order of November 5, 1998, ordering Coleman's production in court on November 16, 1998, was not served personally to the Warden nor the Attorney General. Because service of process was defective, the State alleges, the Superior Court failed to obtain jurisdiction over the Defendants. Moreover, the State argues that Coleman was not entitled to relief on the merits.
(6) The State's arguments are without merit. Once an applicant has applied properly for habeas relief, the onus falls upon the Superior Court to issue the writ, directing it to the officer in whose custody the applicant is detained. The Superior Court is responsible for serving the writ, either personally or by leaving it with an agent of the officer at the place of the applicant's detention. Upon return of the writ, the court must examine the causes of imprisonment, giving notice to all interested parties, including the Attorney General's office if a felony is involved.
(7) Here, the State failed to object timely to service of process and waived the alleged defect by appearing without previous objection. The Superior Court, rather than personally serving the Warden, faxed the writ to the prison where Coleman was being detained. Although the Attorney General did not receive official service, the State now concedes that prior to the November 16, 1998 hearing, it had notice of the petition for the writ. Moreover, at the hearing, the State failed to object to service of process. Under Super. Ct. Civ. R. 12(h)(1)(B), "[a] defense of . . . insufficiency of process . . . is waived . . . if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof. . . ." The State did not object to the insufficient service until the November 19, 1998 hearing, which was held solely to determine whether the Warden should be found in contempt. Defects in service of process must be raised in the first instance or they are waived. Thus, because objection was not made timely, the State's argument that the Superior Court should have dismissed the petition for insufficient service of process is procedurally barred.
(6) The State also argues that the Superior Court erred in granting Coleman's petition because he was not entitled to relief on the merits. Namely, the State contends that Coleman's delay in moving to Level IV confinement was due to the unavailability of space at Level IV, not because DOC had refused to place him in a Level IV program in contravention of his sentence. Furthermore, the State argues that Coleman's complaint was over a classification decision, which is outside the scope of state habeas corpus relief. Again, the State has waived this argument, as it already agreed to a modification of Coleman's sentence at the November 16, 1998 hearing. Moreover, the State failed to object to the court's substantive ruling until the November 19, 1998 contempt hearing, when it was too late. Accordingly, notwithstanding any error the Superior Court may have made on the merits, the State's argument is procedurally barred.
See 10 Del. C. § 6906(a).
See 10 Del. C. § 6907(a).
See 10 Del. C. § 6908.
See Appellant's Opening Brief at 8; see also Raynor v. United States, D. N.J., 604 F. Supp. 205, 208 (1984) (holding service on secretary of government agency rather than on his designated agent was harmless error, as government had actual notice of the suit and suffered no prejudice from the technical default); Dodson v. United States Army Finance and Accounting Center, S.D. Ind., 636 F. Supp. 894, 896 (1986).
See Smith v. McNamara, 10th Cir., 395 F.2d 896, 898 (1968); see also 62B Am. Jur.2d § 354 ("A general appearance by the defendant, without previous objection to the process or return, operates as a waiver of defects in the process or in the service or return thereof."); see id. at § 355 ("Formal defects and irregularities in process or the service thereof must be taken advantage of at the first opportunity, and before any further step in the cause is taken, otherwise they will be held to have been waived.") (citations omitted).
See Supr. Ct. R. 8; Eustice v. Rupert, Del. Supr., 460 A.2d 507, 511 (1983) (holding failure to object to erroneous statements of the law or inaccurate statements of the facts is evidence of waiver).
See id.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is,
AFFIRMED.
BY THE COURT:
/s/ E. Norman Veasey, Chief Justice