IN TI-[E SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF TI-IE
PETITION OF NORMAN
MOR.RISEY FOR A WRIT OF
MANDAMUS

No. 177, 2016

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Submitted: April 21, 2016
Decided: May 9, 2016

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R
This 9"‘ day of May 2016, upon consideration of Norman Morrisey’s petition

for a writ of mandamus and the State’s answer and motion to dismiss, it appears to

the Court that:

(l) Morrisey seeks to invoke the original jurisdiction of this Court, under
Supreme Court Rule 43, to issue a writ of mandamus ordering the Superior Court
to review his Rule 59(d) Motion to Alter or Amend Judgment or alternative Rule
60(b)(6) Motion for judgment for Relief From Judgment or Order ("Motion to

Alter"). The Motion to Alter was filed on February 3, 2016. In the Motion to
Alter, Morrisey sought relief from a Superior Court order, dated January l2, 2016,
denying his Motion for Correction of Sentence ("Motion for Correction").

(2) A writ of mandamus will only issue if the petitioner can show: (i) a
clear right to the performance of a duty; (ii) that no other adequate remedy is

available; and (iii) the Superior Court has arbitrarily failed or refused to perform its

duty.l "[I]n the absence of a clear showing of an arbitrary reli.isal or failure 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."z A petitioner who has an adequate remedy in the appellate
process may not use the extraordinary writ process as a substitute for a properly
filed appeal.3

(3) The passage of three months since Morrisey filed the Motion to Alter
does not constitute an arbitrary failure or refusal to act by the Superior Court." To
the extent Morrisey actually seems to be seeking appellate review of the denial of
his Motion for Correction, he cannot use the extraordinary writ process as a
substitute for a properly filed appeal. Morrisey filed a notice of appeal from the
Superior Court order denying the Motion for Correction, but that appeal was
dismissed as untimely.s Because Morrisey has failed to show that he is entitled the

issuance of a writ of mandamus, his petition must be dismissed.

;1» re Bo»-diey, 545 A.zd 619, 620(1)@1. isss).
rd.

3 ln re Noble, 2014 WL 5823030, at *l (Del. Nov. 6, 20l4); Mariishefs'ke v. Herlihy, 214 A.2d
883, 885 (Del. l965)).
4 See, e.g., In re Johnson, 2007 WL 3121509, at *l (Del. Oct. 25, 2007) (dismissing petition for

writ of mandamus based on motion for modification of sentence that had been pending in
_Superior Court for five months).
’ Morrisey v. State, 2016 WL 792385 (Del. Feb. 29, 2016).

NOW, TI-[EREFORE, IT IS OR.DERED that the petition for the issuance of

a writ of mandamus is DISMISSED.

 

