          IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                   §
                                     §    No. 530, 2015
     Plaintiff Below-                §
     Appellant,                      §    Court Below: Superior Court
                                     §    of the State of Delaware
     v.                              §
                                     §    ID No. 1005008059A
ISAIAH W. McCOY,                     §
                                     §
     Defendant Below-                §
     Appellee.                       §

                         Submitted: May 4, 2016
                         Decided: June 28, 2016

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. VACATED and REMANDED.

Jason W. Staib, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for Appellant.

Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware, for
Appellee.




VAUGHN, Justice:
       The Defendant-Below/Appellee, Isaiah W. McCoy, is a pretrial detainee

awaiting trial on capital murder and related charges. Using a points-based, objective

risk assessment tool, the Department of Correction classified him to be held in the

Secured Housing Unit (“SHU”) at James T. Vaughn Correctional Center (“JTVCC”).

The SHU is a maximum security setting. McCoy filed a motion in the criminal case

requesting that he be transferred from the SHU to the prison’s general population on

the ground that detention at the SHU was interfering with his Sixth Amendment right

to assistance of counsel. General Population is a minimum Level V setting. The

Superior Court, over the State’s objection, granted McCoy’s motion, and McCoy was,

in fact, transferred to general population. While McCoy had some complaints about

the adequacy of the attorney visitation rooms in the SHU and access to the library, the

Superior Court based its order in significant part upon its perception of “the

emotional and physical impact that prolonged, solitary placement has had on

[McCoy’s] Sixth Amendment right to assistance of counsel . . . .”1

       This case is one of three which the parties have identified where the Superior

Court ordered a detainee transferred from the SHU to general population. The other

two are State v. Gibbs2 and State v. Sells.3 In the first of those cases, Gibbs, the

1
  Appellant’s Op. Br., Ex. A at 4.
2
  2012 WL 6845687, at *2-5 (Del. Super. Dec. 19, 2012).
3
  2013 WL 1143614, at *2-3 (Del. Super. Mar. 20, 2013).

                                             1
Superior Court addressed a State contention that the Superior Court lacked

jurisdiction to order a detainee transferred from one housing unit to another in a

criminal case. The Superior Court found there that it had such jurisdiction under 10

Del. C. § 542, 11 Del. C. § 6504, and several cases, including the Superior Court case

of State ex rel. Tate v. Cubbage4 and our case of Bailey v. State.5

       The State renews its jurisdictional argument here, and for the reasons set forth

below, we conclude that neither the Sixth Amendment right to assistance of counsel

nor the statutes and cases relied upon by the Superior Court grant it the authority to

transfer a detainee from one housing unit to another in a criminal case. The order of

the Superior Court is, therefore, vacated.

                                   I. BACKGROUND

       In May 2010, McCoy was arrested and charged with the murder of James

Munford in Dover, Delaware. He was convicted and sentenced to death at his first

trial in June 2012. In January 2015, this Court reversed his conviction and remanded

the case for a new trial.6 Since his arrest, McCoy has been in the State’s custody and

has spent the majority of his detention in the SHU at JTVCC.




4
  210 A.2d 555, 555 (Del. Super. 1965).
5
  521 A.2d 1069, 1069 (Del. 1987).
6
  McCoy v. State, 112 A.3d 239, 271 (Del. 2015).

                                              2
       In a letter to Warden David Pierce, dated July 2, 2015, McCoy’s counsel

requested that McCoy be transferred from the SHU to general population. In denying

the request, Warden Pierce called defense counsel and explained that “he believed

that [McCoy] was being adequately housed.”7

       On July 27, 2015, McCoy filed a motion requesting that he be transferred from

the SHU to general population. The motion alleged that McCoy’s “detention in SHU

has hindered his ability to participate in the preparation of his defense for his

upcoming trial, by limiting his access to face to face meetings with his counsel and

his access to the library.”8 McCoy’s motion was served on the prosecutors in the

criminal case, but not on the Deputy Attorney General (“DAG”) assigned to represent

the Department of Correction (“DOC”) or anyone within the DOC.9 The prosecutors

filed a response opposing the motion, and a hearing was scheduled for August 25.

       Warden Pierce of JTVCC appeared at the hearing with the prosecutors to

discuss the DOC’s prisoner classification policies and procedures.10 Warden Pierce

testified that the DOC classifies inmates based on an objective risk assessment

analysis where a numerical value is assigned to several factors, which include: the

7
  See Appellant’s Op. Br. App. at 82.
8
  Id. at 29.
9
  See id. at 36.
10
   The General Assembly created the Institutional Classification Board (the “Board”), which is a part
of the DOC and is “responsible for the classification of all inmates.” 11 Del. C. § 6527(b). The
Board’s classification decisions are subject to the warden’s veto power. Id. § 6529(d).

                                                 3
charged crimes and their severity; the bond set; and the inmate’s age, criminal history,

and conduct while incarcerated. Warden Pierce explained that the sum of the

numerical values assigned to each factor determines the classification of an individual

inmate. Warden Pierce testified that McCoy was placed in the SHU because of the

serious charges against him, his age, an attempted escape while serving a previous

sentence, and several disciplinary infractions while detained. The total numerical

value assigned to McCoy was thirty-three, which was well above the seventeen

needed to be placed in the SHU.

      The Superior Court then asked Warden Pierce about the DOC’s policy

regarding an inmate’s access to defense counsel. Warden Pierce responded:

                 Your Honor, since previous complaints related to counsel
          access, we have constructed two professional visitation rooms
          with face-to-face access with clients and the inmates that are
          housed in the secured housing unit. The policy was also changed
          to allow inmates to bring documents to that face-to-face
          interaction with their attorney, and to improve the attorneys’
          ability to bring electronic media, such as laptops or other items,
          in order to show evidence to the defendant in preparation for trial.
                 The time frames are still - - they have to schedule 24 hours
          in advance for my facility compared to some other facilities that
          do not have that requirement. The reason for that being the
          limited space and we don’t want people showing up and the space
          already being used. In addition to the fact that it takes time to
          have the inmates prepared and ready. We don’t want to waste
          people’s time by having them show up and still have to wait 10,
          15 minutes until we get the inmate to the room.



                                           4
                    The weekend if there is - - the policy allows for it if there
             was some sort of immediate need, the attorney contacts
             somebody. They can make a request to make an exception if
             there is, for example, some pending date. But in general we
             expect folks to schedule at least 24 hours out.11

In response to Warden Pierce’s testimony, McCoy’s defense counsel stated:

                    Your Honor, Mr. McCoy has been housed in the SHU for
             six years. What that means is he’s allowed, without all the
             acronyms and official terminology, it means he’s allowed to leave
             his cell for 45 minutes, three times a week.
                    The Court in Your Honor’s opinion in Sells noted the
             severe impact on the mental state of an inmate, and the severe
             impact on an inmate’s ability to prepare his defense under those
             circumstances.
                    We have seen that in our own representation of Mr.
             McCoy. I have been unable to have - - on occasion, I have had
             face-to-face visits with Mr. McCoy. My colleague, Mr. Wiseman,
             and our investigator have also had face-to-face, but we have been
             denied the opportunities. When we do have face-to-face, there’s
             a lack of privacy. The security guards and the prison are able to
             overhear our conversations.
                    Being in the SHU also impedes Mr. McCoy’s ability to
             access the law library.12

          The Superior Court then provided McCoy an opportunity to speak. After

providing an explanation regarding some of his prison conduct, he added that:

             [I]t’s the other things that are more important like the extra phone
             calls to my family. I have a daughter that turns five years old
             today that I’ve never touched. I can’t touch her not because I’m



11
     Appellant’s Op. Br. App. at A59-60.
12
     Id. at A64-65.

                                              5
              violent to staff but just because they want to leave me back there
              because of some system.
                     They have convicted murderers and convicted rapists on
              the compound who walk around with almost no supervision.
              People who have plenty of problems in the jail who walk around
              with almost no supervision. I feel like this is an attempt by the
              prison to help the prosecution in a way by - - once again, my
              mental state deteriorated and me not being able to help my
              counsel. I have been no problem whatsoever to this jail.
                     So I’m only hoping that I’m able to be moved to an area
              where I am able to move around, I’m able to play basketball, and
              I’m able to decompress from the ordeal that I went through being
              put on death row. I was on death row for over two years. That’s
              just a situation that’s very hard to explain for a man of my age.
              I’m only 28 years old, Your Honor. I came when I was 22.
                     So as I said my lawyer takes care of the legal aspect. The
              legal aspect is important, but it’s the personal things, you know.13

In rebuttal, Warden Pierce addressed the law library and privacy issues:

              Specifically as it relates to the law library access, all detainee
              inmates have correspondence access to the law library only. It’s
              the same access Mr. Sells - - excuse me - - Mr. McCoy has to the
              law library is through correspondence. There are other inmates
              that are on the compound in medium security that also only have
              correspondence with the law library. That’s not unique to his
              current housing status.
                     Secondly, Your Honor, as it relates to the privacy matter.
              The rooms that were constructed for professional visitation in the
              SHU great care was taken to ensure the walls were filled, the door
              was solid. There was a solid roof. There is an officer that has to
              sit outside of the secure rooms to observe for the safety of the
              attorney.
                     The attorney’s requested the face-to-face. Prior there
              wasn’t any allowed. It had to be through glass. We

13
     Id. at A67-69.

                                               6
          accommodated that, but for their safety and security, we felt it
          necessary to put an officer there should there be a problem, and
          they can see that there’s a problem. Where - - the officer should
          be sitting themselves where they can visually see. There is a glass
          in the door so they can see the attorney and - -
                  But I’ve talked with the staff that supervise it. The staff
          have indicated that they can’t hear everything that’s being said in
          the room. Is it impossible for them to hear something if voices
          get elevated? Certainly not. It’s not impossible, Your Honor. It’s
          not sound proof. But that’s not dissimilar to the compound
          professional visitation. There is a room with a glass door.
          Frankly even those rooms in the compound that attorneys visit
          their clients have additional glass. So it’s less sound proof, and
          there are officers in that hallway also that observe what’s
          happening. So that’s not any different for the SHU versus the
          compound, Your Honor.14

No evidence was introduced at the hearing concerning McCoy’s mental state, apart

from his own testimony.

       On August 28, the Superior Court issued its order, which directed that “McCoy

is to be relocated immediately from SHU and placed in the general population of

detainees awaiting trial.”15 The Superior Court emphasized that McCoy’s time in the

SHU “has encompassed over five years, the substantial part of which was as a

presumed innocent individual.”16 Relying on State v. Sells,17 the court noted the

deference that it owed to the DOC’s housing decisions, but explained that “the


14
   Id. at A70-72.
15
   Appellant’s Op. Br., Ex. A at 5.
16
   Id. at 2.
17
   2013 WL 1143614 (Del. Super. Mar. 20, 2013).

                                             7
emergent picture is that [McCoy] has been in SHU for five years realistically because

of the charges confronting him and very little else.”18 The court reasoned that the

instances of McCoy’s misconduct while imprisoned were minor, and determined that

relocation was necessary to remedy “the emotional and physical impact that

prolonged, solitary placement has had on his Sixth Amendment right to assistance of

counsel . . . .”19 As a result of the Superior Court’s order, McCoy was transferred out

of the SHU and placed in the general prison population, where he remains.

          On September 1, 2015, the DOC filed a motion for reconsideration or

reargument, which asserted, in part:

              The motion improperly sought (and the Order granted) mandamus
              relief against the DOC as part of [McCoy’s] pending criminal
              case, notwithstanding that the DOC is not a party to the criminal
              proceedings and arguably has no right of appeal. . . .
              ....
                     The Order also should be reconsidered because it was not
              based on a complete and accurate factual record. Due to lack of
              notice and other procedural infirmities, the DOC was not
              provided with adequate opportunity to provide the Court with
              documents and testimony concerning the JTVCC classification
              process and the reasons why [McCoy] is housed in the SHU. . . .
              ....
                     The record also is deficient with respect to the reasons for
              [McCoy’s] maximum security classification. . . . The Order does
              not mention [McCoy’s] lengthy criminal history and does not
              address fully [McCoy’s] extensive disciplinary history. . . .

18
     Appellant’s Op. Br., Ex. A at 4.
19
     Id.

                                              8
           [McCoy] has a 14-page charge summary that reflects multiple
           prior convictions for violent felonies, including aggravated
           menacing, attempted robbery (1st) and possession of a weapon
           during the commission of a felony. The Order also does not
           reflect [McCoy’s] escape history, which includes two prior
           convictions for escape from conviction. [McCoy’s] disciplinary
           history likewise is much more extensive and troubling than
           suggested in the Order. Since 2010, [McCoy] has been found
           guilty of 20 rule violations, including 10 serious Class 1
           violations. Four of the Class 1 violations were for sexual
           misconduct involving female correctional officers and nursing
           staff. . . .20

       The Superior Court denied the DOC’s motion on September 14. The court

again observed that McCoy’s “posture with [the] DOC is that of an individual

presumed innocent while he awaits trial.”21 The Superior Court then explained that

“[n]either the State nor [the] DOC was limited in any way from presenting at that

Motion hearing any and all evidence it chose to present regarding [McCoy’s] SHU

placement . . . .”22

       The DOC appeals from both the August 28 and September 14 orders. On

appeal, the DOC makes three arguments: (1) the Superior Court lacked jurisdiction

to order McCoy transferred from the SHU to general population in this criminal

proceeding; (2) if the Superior Court had jurisdiction, it made legal errors in its



20
   Appellant’s Op. Br. App. at A77-78.
21
   Appellant’s Op. Br., Ex. B at 1.
22
   Id.

                                         9
analysis, made improper factual findings, and abused its discretion in ordering

McCoy transferred; and (3) the Superior Court abused its discretion by denying the

DOC’s motion for reconsideration or reargument. In response, McCoy denies each

of the DOC’s arguments and contends that, as a threshold matter, the DOC’s appeal

must be dismissed because it is an improper interlocutory appeal in a criminal case

and does not fall under the collateral order doctrine. Additionally, McCoy contends

that the DOC has waived its jurisdictional argument.

                                         II. ANALYSIS

                    A. This Appeal is Properly Before this Court Under
                              the Collateral Order Doctrine

          Before discussing the DOC’s arguments, this Court must address McCoy’s

contention that we should dismiss this appeal because it is an improper interlocutory

appeal in a criminal case that is is outside the scope of the collateral order doctrine.

We find that the appeal is within the scope of the collateral order doctrine and reject

McCoy’s contention.

          McCoy is correct that this Court cannot hear interlocutory appeals in most

criminal cases.23 But, under the collateral order doctrine, we may hear such appeals

if three conditions are met.24 “In Gannett, this Court described the attributes of a

23
     Gannett Co. v. State, 565 A.2d 895, 899 (Del. 1989).
24
     Evans v. Justice of the Peace Ct. No. 19, 652 A.2d 574, 576 (Del. 1995).

                                                 10
collateral order comprising a final judgment: first, it determines a matter independent

of the issues to be resolved in the original underlying proceeding; second, it binds a

person who was not a party in the original underlying proceeding; and, third, it has

a substantial effect on important rights.”25 Applying this standard, the Superior

Court’s August 28 order was a collateral order this Court may review.

          First, a decision by this Court will determine matters independent from the

issues to be resolved in McCoy’s criminal case. The issue to be decided at trial is

whether McCoy is guilty of murder and other charges. The issues involved in that

determination are wholly unrelated to the question that this decision will answer,

which is whether the Superior Court has the authority to order an inmate transferred

from one housing unit to another in a criminal case.

          Second, this decision will bind a party that is not a party in McCoy’s criminal

case. Specifically, the DOC is not a party in McCoy’s criminal case, but is directly

involved in this appeal. McCoy’s assertion that “the State of Delaware is a party in

both the underlying proceeding and in this appeal” oversimplifies the relationship

between the Department of Justice (“DOJ”) and the DOC, which are distinct state




25
     Id. at 577 (citing Gannett Co., 565 A.2d at 900).

                                                  11
agencies.26 Although the DOJ is involved in the criminal case because its attorneys

are prosecuting McCoy, the DOC will play no role in that prosecution.

       Finally, this Court’s decision will have a substantial effect on important rights.

The Superior Court concluded that the Sixth Amendment right to counsel empowered

it to override a DOC housing classification and order a detainee transferred to a lower

level of security in a criminal case. We conclude in this appeal that it does not.

                     B. The DOC’s Jurisdictional Claim is not Waived

       The DOC’s first contention is that the Superior Court lacked jurisdiction to

order McCoy transferred from the SHU to general population in a criminal

proceeding. McCoy contends that the DOC waived this issue by not raising it to the

Superior Court.

       “Only questions fairly presented to the trial court may be presented for review;

provided, however, that when the interests of justice so require, the Court may

consider and determine any question not so presented.”27 We will consider DOC’s

jurisdictional contention for several reasons. First, while notice of McCoy’s motion

was given to the prosecutors in the criminal case, McCoy did not provide any notice

to the DAG assigned to the DOC, the Commissioner of Correction, or the Warden at

26
   For example, the DOJ is headed by the Attorney General, who is elected, whereas the DOC is
headed by the Commissioner of the DOC, who is appointed by the Governor. Compare 29 Del. C.
§ 2502, with id. § 8902(a).
27
   Sup. Ct. R. 8.

                                             12
JTVCC. While the warden was notified of the motion by the prosecutors and testified

at the hearing on the motion, the DOC lacked the benefit of representation by the

DAG specifically assigned to the DOC. The prosecutors, although part of the DOJ,

are not the lawyers who represent the DOC as a client and its distinct interests. The

DAG, who does represent the DOC, did not become aware of the motion until after

the Superior Court held its hearing and issued its order. The better practice would

have been for McCoy’s counsel to serve the DAG assigned to the DOC with the

motion. Second, in its motion for reargument, the DOC argued, among its other

arguments, that the order should be reconsidered because it “grants mandamus relief

that, by law and the applicable cases, arguably may be granted only in a separate civil

proceeding,”28 thus raising the jurisdictional question at least by implication. Third,

a challenge to a court’s subject matter jurisdiction is a challenge that cannot be

waived.29 This rule applies in both civil and criminal cases.30

       To the extent there is any doubt about whether the issue was raised below, it

is in the interest of justice to consider the DOC’s jurisdictional contention. In

deciding whether reviewing an issue is in the interests of justice, this Court considers


28
   Appellant’s Op. Br. App. at A77.
29
   See United States v. Cotton, 535 U.S. 625, 630 (2002); Plummer v. Sherman, 861 A.2d 1238, 1243
(Del. 2004); Sternberg v. O’Neil, 550 A.2d 1105, 1109 (Del. 1988).
30
   See, e.g., New York v. Smith, 494 Fed. App’x 138, 139 (2d Cir. 2012) (explaining that a procedural
defect can be waived in a criminal proceeding but subject matter issues cannot).

                                                13
whether resolving the issue: (1) “may have significant implications for future cases”;

and “will promote judicial economy because it will avoid the necessity of

reconsidering the [issue].”31

       The interests of justice require that this Court review the Superior Court’s

authority to order an inmate transferred from one housing unit to another in a criminal

case. Three times now the Superior Court has overridden the DOC’s classification

system and ordered such a transfer in a criminal case. It is important for the Superior

Court and the DOC to know whether the Superior Court has the authority to do so.

     C. The Superior Court Lacks Authority to Order an Inmate Transferred
          from One Housing Unit to Another in a Criminal Proceeding

       Because the question presented is one of law, our review is de novo.32 In

Gibbs, the Superior Court identified two statutes which it believed gave it the

authority to order an inmate transferred from one housing unit to another in a criminal

case: 10 Del. C. § 542, which gives the Superior Court “full power and authority to

examine, correct and punish the contempts, omissions, neglects, favors, corruptions

and defaults of all justices of the peace, sheriffs, coroners, clerks and other officers,

within this State;”33 and 11 Del. C. § 6504, which provides that the DOC’s duties are



31
   Sandt v. Del. Solid Waste Auth., 640 A.2d 1030, 1034 (Del. 1994).
32
   Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).
33
   10 Del. C. § 542(a).

                                              14
“subject only to powers vested in the judicial and certain executive departments and

officers of the State.”34 The Superior Court explained that it had an obligation to

assert jurisdiction to prevent constitutional violations. Expressly discussing the 1965

Superior Court case of Tate, the Court further reasoned that it had jurisdiction over

DOC decisions “‘where it is clearly shown that there has been a deprivation or

infringement of constitutional rights of inmates.’”35

       Neither of the two statutes relied upon authorize the Superior Court to transfer

an inmate from one housing unit to another in a criminal proceeding. First, § 542

does not grant the Superior Court jurisdiction to transfer inmates. The cases

interpreting § 542 show that the term “other officers” means only judicial officers

other than those enumerated in the statute.             In Maryland & Olive Avenues

Neighborhood Association v. Mayor of Rehoboth Beach,36 the Superior Court

explained that § 542 “only permits [the] Superior Court to remedy defects in the

administration of justice.”37 The court clarified that this understanding is based on

the historical interpretation given to the original version of § 542, which was intended

to allow the Superior Court to oversee “‘inferior tribunals, acting under the



34
   11 Del. C. § 6504.
35
   Gibbs, 2012 WL 6845687, at *3 (quoting Tate, 210 A.2d at 565).
36
   1995 WL 654082 (Del. Super. Oct. 18, 1995).
37
   Id. at *6.

                                             15
supervision of that court.’”38 This is consistent with the plain wording of § 542,

which, when read in its entirety, discusses the Superior Court’s jurisdiction over

inferior judicial officers.

       Additionally, § 542 has been applied almost exclusively to address conduct

relating to judicial officers.39 There is one case (other than Gibbs) in which § 542 was

construed as granting the Superior Court general supervisory authority over an

executive branch official.40 But, that case was later contradicted by a case in which

the Superior Court clarified that “other officers” within § 542’s meaning did not

include executive branch officials, but instead had the meaning that the court gave it

in Maryland & Olive Avenues.41

       Second, the Gibbs court’s reading of the “subject only to” language in § 6504

is inconsistent with the interpretation this Court and the Superior Court have




38
   Id. (quoting King v. Reading, 5 Harr. 399, 400 (Del. 1852)).
39
   See State v. Insley, 141 A.2d 619, 623 (Del. 1958); In re Sewell, 153 A.2d 209, 210 (Del. Super.
1959). But see Vick v. Dep’t of Corr., 1986 WL 8003, at *1 (Del. Super. Mar. 7, 1986) (explaining
that “[§ 542] would appear to be a plenary grant of power, which in order to be effective, could
encompass the appointment of counsel for prisoners in civil matters”).
40
   See Maul v. Warren, 1992 WL 114111, at *3 (Del. Super. Apr. 24, 1992) (finding that court had
jurisdiction to review Delaware State Police Superintendent’s discipline of police officer).
41
   See Smith v. Dep’t of Pub. Safety, 1999 WL 1225250, at *11 (Del. Super. Oct. 26, 1999) (“[T]he
Court disagrees with the interpretation of § 542(a) set forth in Maull. The Court stands by its
interpretation of that section as set forth in its decision in Maryland and Olive Avenues . . . .”).

                                                16
consistently given that statute. In State v. Goodman,42 for example, the Superior

Court explained:

          [The] DOC, and not this Court, has the power to classify an
          inmate. 11 Del. C. §§ 6504 and 6529. Even after the Institutional
          Classification Board makes a recommendation regarding
          classification, the Warden maintains “the power to veto decisions
          of the Board.” 11 Del. C. § 6529(d). Thus, this Court does not
          have the power just to enter an order based on the pending motion
          instructing that [the] defendant must be moved from the SHU to
          another location.43

       The Superior Court’s reliance on the Tate case is also misplaced. Tate was a

mandamus proceeding, not a criminal prosecution, and, as further discussed

concerning mandamus, is distinguishable from this case on that basis alone.

       Finally, McCoy relies on this Court’s decision in Bailey to support his

argument that the Sixth Amendment right to counsel empowers the Superior Court

to order a detainee transferred to a lower level of security in a criminal case. In

Bailey, the defendant appealed his conviction of murder on several grounds, one of

which was that the State interfered with his Sixth Amendment right to counsel by

interrupting his phone calls with his attorney and destroying materials that he was

preparing to present to his attorney.44 Before trial, Bailey filed a motion to be

42
   2010 WL 547394 (Del. Super. Feb. 9, 2010).
43
   Id. at *1; accord Dickens v. State, 2010 WL 2889501, at *6 (Del. July 23, 2010); Jackson v.
Minner, 2013 WL 871784, at *6 (Del. Super. Mar. 1, 2013); Foster v. O’Connell, 2002 WL 480961,
at *2 (Del. Super. Mar. 13, 2002).
44
   See Bailey, 521 A.2d at 1083.

                                             17
transferred from the maximum security unit, which the Superior Court denied. But

the trial court “entered a detailed order permitting Bailey unlimited access to his

attorney, free access to writing and legal material necessary to assist his attorney and

liberal telephone privileges for discussions with his attorney.”45

        This Court first acknowledged that “[s]ituations involving interference with the

assistance of counsel are subject to the general rule that the remedy should be tailored

to the injury suffered and should not unnecessarily infringe upon society’s competing

interest in the administration of criminal justice.”46 This Court then commended the

Superior Court’s narrowly tailored remedy:

            We find that the manner in which the trial judge handled Bailey’s
            claim of interference with counsel was exemplary and a model for
            the consideration of similar claims in the future. . . . [T]he trial
            court properly assessed the prejudice to Bailey and fashioned a
            remedy which was appropriate to the injury Bailey had
            sustained.47

        McCoy correctly observes that Bailey is an example of the Superior Court

protecting an inmate’s Sixth Amendment right to counsel. However, the issue in

Bailey was interference with counsel, and the remedy was narrowly tailored to

address that problem. Nothing in Bailey supports the contention that the Superior



45
   Id. at 1084.
46
   Id.
47
   Id. at 1085.

                                            18
Court’s authority to protect a defendant’s Sixth Amendment right to counsel in a

criminal case extends to overriding the DOC’s housing classification system and

ordering a detainee transferred to a different housing unit in a criminal case.48

       The Superior Court’s authority to address an inmate’s claims regarding his

housing status or his other conditions of confinement lies within its authority to issue

writs of mandamus or to hear civil cases alleging a violation of civil or constitutional

rights under 42 U.S.C. § 1983.

       While a mandamus proceeding provides the Superior Court with a

jurisdictional basis to address claims relating to housing or other conditions of

confinement, it is also necessary to recognize that mandamus is a limited remedy that

requires the petitioner to establish that (a) he has a clear right to the performance of

a duty by a public official or agency; (b) no other remedy is available; and (c) the

public official or agency arbitrarily failed or refused to perform a duty.49

       We have previously held that the classification of inmates for housing purposes

is a discretionary decision and an inmate has no right to a particular housing

classification.50


48
   The other cases cited by the Superior Court in Gibbs are either mandamus actions or cases which
do not support the proposition that the Superior Court can transfer a detainee from one housing unit
to another in a criminal case.
49
   In re Hyson, 649 A.2d 807, 808 (Del. 1994).
50
   Desmond v. Phelps, 2012 WL 424891, at *1 (Del. Feb. 8, 2012).

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          In addition, an inmate who seeks a change of housing units on the basis of a

right protected by 42 U.S.C. § 1983 has an available remedy under that statute. The

Superior Court recently explained that this is the proper course for an inmate seeking

a housing reclassification to take:

             Pinkston alleges Fifth and Fourteenth Amendment Due Process
             violations and Eighth Amendment cruel and unusual punishment
             violations. Pinkston’s allegations arise out of being reassigned to
             the Secured Housing Unit . . . . Pinkston is seeking a writ of
             mandamus to correct an alleged violation of his constitutional
             rights. However, the proper remedy for a violation of
             constitutional rights is through a 42 U.S.C. § 1983 action in the
             United States District Court, and not through the issuance of a
             writ of mandamus by this Court. Because Pinkston fails to meet
             one of the requirements for an issuance of a writ of
             mandamus—that mandamus is his sole avenue for
             relief—mandamus is inappropriate.51

          The Superior Court has ample authority to protect a defendant’s Sixth

Amendment right to counsel in a criminal case and to fashion remedies for that

purpose. But we hold here that those remedies do not include ordering the transfer

of a detainee from his classified housing unit to another unit in a criminal case.

Because we decide the case on the State’s first contention, it is unnecessary to address

its other contentions.




51
     Pinkston v. State, 2013 WL 6439360, at *1, *3 (Del. Super. Dec. 4, 2013).

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                              III. CONCLUSION

      For the foregoing reasons, the Superior Court’s order transferring McCoy out

of SHU and into general population is vacated, and the case is remanded to the

Superior Court for further proceedings.




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