         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 STEPHEN WINN,                          §
                                        §     No. 611, 2015
       Petitioner Below-                §
       Appellant,                       §
                                        §
       v.                               §     Court Below—Superior Court
                                        §     for the State of Delaware,
 JOHN EDINGER,                          §
                                        §     C.A. No. N15M-07-231
       Respondent Below-                §
       Appellee.                        §

                           Submitted: January 6, 2016
                           Decided:   February 17, 2016

Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.

                                    ORDER

      This 17th day of February 2016, upon consideration of the appellant’s

opening brief, the State’s motion to affirm, and the record on appeal, it appears to

the Court that:

      (1)    The appellant, Stephen Winn, filed this appeal from the Superior

Court’s order dated October 5, 2015, dismissing his petition for a writ of

mandamus. The State of Delaware, as the real party in interest, has filed a motion

to affirm the Superior Court’s judgment on the ground that it is clear on the face of

Winn’s opening brief that his appeal is without merit. We agree and affirm.

      (2)    A Superior Court jury convicted Winn in 2002 of multiple crimes,

including Rape in the First Degree and Kidnapping in the First Degree. Winn was
represented at trial by the respondent, John Edinger, Esquire, a lawyer with the

Office of the Public Defender.           Following his conviction, the Superior Court

sentenced Winn to forty-seven years at Level V incarceration followed by a period

of probation. This Court affirmed his convictions and sentence on direct appeal. 1

Since that time, Winn has filed multiple unsuccessful petitions seeking

postconviction relief.2

         (3)    On July 28, 2015, Winn filed a petition for a writ of mandamus

requesting the Superior Court to issue a declaratory judgment holding, among

other things, that his former counsel violated the constitution by failing to provide

him with a copy of notes from one of the State’s witnesses who testified at his

2002 trial. The Superior Court summarily dismissed the petition on the ground

that it was plain on the face of Winn’s petition that he was not entitled to relief.

The Superior Court found that, in essence, Winn was alleging ineffective

assistance of counsel and that the issue previously had been raised in other

unsuccessful proceedings. This appeal followed.

         (4)    In his opening brief on appeal, Winn acknowledges that Edinger no

longer has a copy of the notes that he seeks. Winn asks this Court to declare that

Edinger violated his constitutional rights by failing to provide Winn with a copy of

1
    Winn v. State, 2003 WL 1442468 (Del. Mar. 19, 2003).
2
 See, e.g., Winn v. State, 2015 WL 8710303 (Del. Dec. 11, 2015) (affirming the denial of
Winn’s fourth petition for postconviction relief).


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the notes earlier and to order Edinger to pay him $250,000 in compensatory

damages and $500,000 in punitive damages. Alternatively, Winn asks this Court

to order a new trial.

          (5)    A writ of mandamus is an extraordinary remedy issued by the

Superior Court to compel an administrative agency or public official to perform a

duty.3 As a condition precedent to the issuance of the writ, the petitioner must

demonstrate that: 1) he has a clear right to the performance of the duty; 2) no other

adequate remedy is available; and 3) the administrative agency or public official

has arbitrarily failed or refused to perform its duty. 4 Mandamus will not issue to

compel the performance of a discretionary act.5

          (6)    Winn’s petition fails for multiple reasons. First, even if Edinger still

had a copy of the notes, Winn cannot establish that Edinger has a nondiscretionary

duty to provide the notes to him.6 Moreover, because Winn acknowledges that

Edinger no longer has the notes, Winn cannot establish that Edinger arbitrarily

refused to give him a copy. Moreover, to the extent Winn asks this Court to

declare that Edinger was ineffective for failing to provide him with a copy of the


3
    Clough v. State, 686 A.2d 158, 159 (Del. 1996); 10 Del. C. § 564.
4
    Id.
5
    In re Bordley, 545 A.2d 619, 620 (Del. 1988).
6
 See State v. Winn, 2004 WL 3030023 (Del. Super. Dec. 23, 2004) (holding that, “while it is a
good practice, there is no requirement that counsel share discovery material with the
defendant.”), aff’d, 2005 WL 3357513 (Del. Dec. 8, 2005).


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notes at trial, that issue already has been resolved against him.7 He cannot use a

writ of mandamus to relitigate an issue that has already been decided.

          NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                      BY THE COURT:
                                      /s/ Leo E. Strine, Jr.
                                      Chief Justice




7
    Id.


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