Opinion
No. 533, 1998.
January 22, 1999.
MANDAMUS DISMISSED.
Unpublished Opinion is below.
IN THE MATTER OF THE PETITION OF KENNETH T. DEPUTY FOR A WRIT OF MANDAMUS. No. 533, 1998. In the Supreme Court of the State of Delaware. Submitted: January 11, 1999. Decided: January 22, 1999.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 22nd day of January 1999, it appears to the Court that:
(1) The petitioner, Kenneth T. Deputy ("Deputy"), is pursuing postconviction relief in the Superior Court. Deputy has filed a petition for a writ of mandamus in this Court. Deputy complains that a Superior Court judge "has allowed his subordinates to operate with extreme racial prejudice and without regard for the law or the constitution." The State of Delaware ("State") has filed an answer and a motion to dismiss Deputy's petition. Deputy has filed a "reply" to the State's answer and motion to dismiss.
(2) Deputy's "reply" is in violation of Supreme Court Rule 43 and shall be stricken. Supreme Court Rule 43 states in pertinent part that, other than the complaint and the answer, if an answer is requested by the Court as it was in this case, no further submissions of the parties shall be accepted unless directed by the Court. The Court did not direct that Deputy file a response to the State's answer and motion to dismiss.
(3) In September 1997, Deputy was convicted of attempted first degree robbery, first degree assault, and possession of a deadly weapon during the commission of a felony. On direct appeal, Deputy's conviction was affirmed. Deputy v. State, Del. Supr., No. 541, 1997, Holland, J., 1998 WL 700168 (Aug. 10, 1998) (ORDER).
(4) Deputy filed his motion for postconviction relief on September 21, 1998. Four days later, a Superior Court Judge referred Deputy's motion to a Superior Court Commissioner, for proposed findings of fact and recommendations. 10 Del. C. § 512(b)(1). In turn, the Commissioner issued an order directing that Deputy's defense counsel file an affidavit and that counsel for the Department of Justice file a response to defense counsel's affidavit and to Deputy's postconviction motion. It appears from the Superior Court docket that Deputy's defense counsel and counsel for the State have filed their respective submissions.
(5) It appears from the docket that, since issuing her September 1998 scheduling order, the Commissioner has ruled upon a request for an extension of time by counsel for the Department of Justice. The Commissioner has also ruled upon motions filed by Deputy, including a motion for the appointment of counsel, a motion for default judgment, and a motion for sanctions. The docket reflects that a motion for evidentiary hearing and a motion to strike, both of which were filed by Deputy in early December 1998, are pending in the Superior Court. In his petition in this Court, Deputy claims that a second motion for default judgment, which was mailed by him on December 4, 1998, was received by the Prothonotary, but was not docketed.
(6) Deputy complains that the Prothonotary is not docketing his filings promptly and is refusing to docket other filings. Deputy alleges that the Commissioner has committed error and/or prejudice in granting opposing counsel's request for an extension of time and in denying Deputy's motions for sanctions and for default judgment. Deputy states that a writ should issue compelling the Superior Court Judge "to assume control" of the postconviction litigation pending in the Superior Court. In conclusion, Deputy seeks "whatever type of relief is warranted" from the "oppressive action[s]" of the Prothonotary and the Commissioner.
(7) This Court is without jurisdiction to issue a writ of mandamus directly to the Prothonotary. Del. Const. art. IV, § 11( 6); In re Hitchens, Del. Supr., 600 A.2d 37, 38 (1991); In re Brawley, Del. Supr., No. 61, 1996, Hartnett, J., 1996 WL 145797 (Mar. 5, 1996) (ORDER). The Court will issue a writ of mandamus to a trial court only when the petitioner can show that there is the clear right to the performance of the duty at the time of the petition, no other adequate remedy is available, and the trial court has failed or refused to perform its duty. In re Bordley, Del. Supr., 545 A.2d 619, 620 (1988).
(8) Deputy has not demonstrated that he is without an adequate legal remedy for his claims or that the Superior Court has arbitrarily failed or refused to perform a duty owed to him. It appears that the Superior Court Commissioner has ruled upon, or is considering, Deputy's various motions. The Commissioner's rulings are subject to review by a Superior Court Judge. 10 Del. C. § 512(b)(1); Super. Ct. Crim. R. 62. Absent a clear showing that the trial court has arbitrarily failed or refused to act, "this Court will not issue a writ of mandamus to compel a trial court to perform a particular judicial function, to decide a matter in a particular way, or to dictate the control of its docket." In re Bordley, 545 A.2d at 620.
NOW, THEREFORE IT IS ORDERED that the petition for a writ of mandamus is DISMISSED. Deputy's "reply" is STRICKEN.
BY THE COURT:
/s/ Randy J. Holland, Justice