Opinion
C.A. No. 07M-11-004 RFS.
November 19, 2007.
ORDER
1) On or about August 2, 2007, Jeremy Brummell ("petitioner") was arrested on 10 counts of owning, possessing, keeping, or using an animal for the purpose of fighting in violation of 11 Del. C. § 1326(a). These charges are pending in this Court in the case of State v. Brummell, Def. ID# 0612016338.
2) Petitioner was incarcerated on these charges on a secured bond.
3) Before his preliminary hearing was held on August 9, 2007, the Federal Marshals picked him up and held him as a detentioner waiting to be sentenced on federal charges to which he had pled guilty.
4) Petitioner's preliminary hearing was continued from August 9, 2007 until August 16, 2007, because he was detained by the Federal Marshals. A capias was issued due to petitioner's failure to appear at his preliminary hearing on August 16, 2007.
5) On September 10, 2007, a Grand Jury indicted petitioner on the 10 charges on which he had been arrested. The indictment by the Grand Jury constituted a finding that probable cause existed to arrest petitioner on these charges and thereby rendered a preliminary hearing moot.
6) Petitioner was scheduled for arraignment on October 2, 2007. Because he continued to be held and consequently failed to appear at the arraignment, the previously-issued capias remained outstanding.
7) As a letter dated October 15, 2007 explained to petitioner, this capias will act as a detainer in an effort to secure his return to Delaware upon his completion of his federal sentence.
8) On November 5, 2007, petitioner filed the petition in the above-captioned matter seeking the issuance of a writ of mandamus. Therein, he asserts his preliminary hearing was required to be held within a certain number of days of his arrest and he must be brought before this Court to answer to the charges pending. He obliquely suggests the charges should be dismissed because the preliminary hearing was not held. He further explains that he is facing a lengthy sentence on the federal charges. He seeks a writ of mandamus directed to the Honorable E. Scott Bradley requiring that petitioner be brought before the Court to answer for the pending charges in State v. Brummell, Def. ID# 0612016338.
9) In connection with this petition seeking a writ of mandamus, petitioner has filed a motion to proceed in forma pauperis. The affidavit submitted in support thereof is not notarized as 10Del. C. § 8802(b) requires. However, because the Court ultimately dismisses the petition, it overlooks this omission.
10) Although petitioner is indigent, the matter may not proceed based only on that determination since the Court also must review the petition to determine if it is factually or legally frivolous. 10 Del. C. § 8803(a), (b). If the Court determines the petition is faulty because it is legally frivolous, malicious or factually frivolous, then the Court dismisses it. 10Del. C. § 8803.
In 10 Del. C. § 8803(a) and (b), it is provided:
(a) In all cases in which a court has granted an individual leave to proceed in forma pauperis, the court shall issue an order authorizing the filing of the complaint and establishing the amount of court costs and filing fees to be paid. The court may, in its discretion, establish a schedule for the payment of the costs and fees.
(b) Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall be dismissed if the court finds the action is factually frivolous, malicious or, upon a court's finding that the action is legally frivolous and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of the issue(s) raised. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review.
11) In this case, the petition is legally frivolous. 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.]Accord Taylor v. State, 716 A.2d 975 (Del. 1998); Washington v. State, 713 A.2d 932 (Del. 1998).
One judge of this Court does not issue a writ of mandamus against another judge of the Court. Marshall v. Stokes, Del. Super., C.A. No. 03M-05-006, Bradley, J. (June 5, 2003). Furthermore, there is no legal or ministerial duty on the Court's part either to bring petitioner to Delaware to face his pending criminal charges or to dismiss these charges. Petitioner's argument the charges should be dropped because his preliminary hearing was not held in a timely manner is meritless. The preliminary hearing was scheduled and the State of Delaware was present and prepared to proceed. The hearing was continued once for petitioner to appear. When he did not appear the second time, a capias was issued. Petitioner's current predicament is of his own making. There is no basis in law for this Court to resolve that predicament.
12) For the foregoing reasons, petitioner's petition is legally meritless.
NOW, THEREFORE, THIS ___19th_____ DAY OF NOVEMBER, 2007, IT IS ORDERED THAT THE PETITION IS DISMISSED WITH PREJUDICE.
June 2, 2003
Dear Mr. Marshall:
Petitioner William Marshall has filed a petition seeking the issuance of a writ of mandamus against The Honorable Richard F. Stokes. He also has filed a motion to proceed in forma pauperis.
In reviewing the motion to proceed in forma pauperis pursuant to Chapter 88 of 10 Del. C, I have determined that the pending petition is legally frivolous. As explained in Taylor v. State, 716 A.2d 975 (Del. 1998):
A writ of mandamus is a command that may be issued by the Superior Court to an inferior court, public official, ox-agency to compel the performance of a duty to which the petitioner has established a clear legal right.Accord Washington v. Snyder, 713 A.2d 932 (Del. 1998) . One judge of this Court does not issue a writ of mandamus against another judge of the Court.
Since petitioner is not entitled to the issuance of a writ of mandamus, the petition is dismissed as legally frivolous. if IS SO ORDERED.