           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WARD T. EVANS,             :
                           :
        Petitioner,        :                      C. A. No. K16M-04-017 JJC
                           :                      In and for Kent County
   v.                      :
                           :
COMMISSIONER ROBERT COUPE, :
                           :
        Respondent.        :

                                          ORDER

      On this 20th day of April, 2016, after considering Petitioner’ Ward T. Evans
(hereinafter “Evans”)’s Petition for a writ of mandamus, it appears that:
      1. Petitioner Ward T. Evans (hereinafter “Evans”) petitions the Court for leave
to file a petition in forma pauperis and for a writ of mandamus compelling
Commissioner Robert Coupe (hereinafter “Commissioner”) to apply good behavior
credits and merit credits that would provide for his immediate release. Evans claims
in his petition are identical to those previously rejected by the Delaware Supreme
Court in Evans v. State1, and the United States District Court for the District of
Delaware in Evans v. Phelps2. After a review by the Court pursuant to 10 Del. C. §
8803(b), Ward’s petition for leave to file in forma pauperis is denied and Evans’
petition is dismissed as legally frivolous.
      2. Pursuant to 10 Del. C. § 8803, before approval of an in forma pauperis
application, the Court must initially review the complaint or petition to determine




      1
          872 A.2d 539 (Del. 2005).
      2
          722 F.Supp.2d 523 (D. Del. 2010).
whether it is legally or factually frivolous or malicious.3 If a pro se litigant, “acting
with due diligence, should have found well settled law disposing of the issue(s) raised”,
then the petition shall be dismissed4 A claim is factually frivolous where the factual
allegations are “baseless, of little or no weight, value or importance, not worthy of
serious attention or trivial.”5 A claim is legally frivolous where it is “based on an
indisputably meritless legal theory.”6
         3. Evans’ petition seeks a writ of mandamus compelling the Commissioner to
release him after calculating good time credits as Evans feels appropriate. A writ of
mandamus is an extraordinary remedy issued by this Court to compel a lower court,
agency, or public official to perform a nondiscretionary or ministerial duty.7 The
issuance of a writ is within the Court’s discretion; it is not a matter of right.8 Before a
writ is issued, “the Petitioner must demonstrate that: he [or she] has a clear legal right
to the performance of the duty; no other adequate remedy is available; and the [lower
body] has arbitrarily failed or refused to perform that duty.”9 A nondiscretionary or
ministerial duty must be “prescribed with such precision and certainty that nothing is




         3
             10 Del. C. § 8803(b).
         4
             Id.
         5
             10 Del. C. § 8801(4).
         6
        Desmond v. Phelps, 2011 WL 7144241, at *2 (Del. Super. Nov. 4, 2011) (citing 10 Del.
C. § 8801(7)).
         7
             Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015).
         8
             Shah v. Coupe, 2014 WL 5712617, at *1 (Del. Super. Nov.3, 2014).
         9
             Nicholson v. Taylor, 882 A.2d 762(TABLE), 2005 WL 2475736, at *2 (Del. Aug. 23,
2005).

                                                 2
left to discretion or judgment.”10 If the duty is discretionary, the right is doubtful, the
power to perform the duty is inadequate or wanting, or if any other adequate remedy
exists, then the Petitioner is not entitled to a writ of mandamus.11
       4. Evans sentence for a 1982 Rape in the First Degree conviction was life with
the possibility of parole.12 He claims that he is eligible for early release from his life
sentence based upon “good behavior and merit good time credits that reduce my time
of confinement.”
       5. Evans raises the same issue in this petition that he raised before the Delaware
Supreme Court in Evans v. State (“Evans II”). The Supreme Court rejected his
argument in holding that “Evans’ release date was death, unless he was granted
parole.”13 In so holding, it rejected application of credits providing for his conditional
release before that time. The statutory Pre-TIS sentencing system applicable to Evans
does not permit Evans release prior to his death unless parole is granted.14 In his case,
since he was sentenced in 1982, any accumulated good-time credits are applicable only
to computation of his eligibility for parole.             Since he is already eligible for
consideration for parole and there is no applicability of these credits to anything other
than his parole eligibility, his claim is without merit. In the context of a federal Habeas
Corpus petition, the District Court for the District of Delaware likewise held that Evans




       10
            Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015)(citation omitted).
       11
            Pinkston v. DOC, 2013 WL 6439360, at *1(Del. Super. Dec. 4, 2013).
       12
            Evans, 872 A.2d at 542.
       13
            Id. at 558.
       14
            Id.

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“never had a right to automatic or conditional release” as he again alleges in this case.15
       6. Here, Evans renewed claim is legally frivolous. Even though he filed the
matter pro se, he should recognize the well settled law disposing of this issue since he
has repeatedly raised it unsuccessfully. Accordingly, pursuant to 10 Del. C. § 8803(b),
Evans petition must be dismissed with prejudice.
       WHEREFORE, for the aforementioned reasons, Evans application to proceed
in forma pauperis is DENIED. Likewise, his petition for a writ of mandamus is
DISMISSED with prejudice.
       IT IS SO ORDERED
                                                    /s/Jeffrey J Clark
                                                         Judge




       15
          See Evans v. Phelps, 722 F. Supp. 2d 523, 530-31 (D.Del. 2010)(holding that the Delaware
Supreme Court’s denial of this request “was not contrary to, nor an unreasonable application of,
clearly established Federal law” and accordingly dismissed Evans’ petition).

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