IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF THE 

PETITION OF DERIOUS 

JOHNSON FOR A WRIT

OF MANDAMUS

§ 

§ No. 177, 2023

§ 

§

Submitted: July 12, 2023

Decided: August 2, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

Upon consideration of the appellant’s opening brief, the appellee’s motion to 

affirm, and the record below, it appears to the Court that:

(1) The petitioner, Derious Johnson, seeks to invoke the original 

jurisdiction of this Court under Supreme Court Rule 43 and requests the issuance of 

a writ of mandamus. The State of Delaware has filed an answer and motion to 

dismiss Johnson’s petition. After careful review, we conclude that the petition must 

be dismissed.

(2) The record reflects that, in March 2003, Johnson pleaded guilty to 

escape after conviction in Criminal ID No. 0212015251. The Superior Court 

sentenced Johnson to two years of Level V incarceration, suspended after ninety

days for decreasing levels of supervision. In October 2003, a Superior Court jury 

found Johnson guilty of first-degree rape in Criminal ID No. 0304007340. The 

Superior Court sentenced Johnson, as a habitual offender under 11 Del. C. § 4214, 
2

to life imprisonment. This Court affirmed the Superior Court’s judgment on direct 

appeal.1

(3) On July 26, 2019, after the General Assembly amended 11 Del. C. § 

4214 to permit the Superior Court to modify certain habitual offender sentences, the 

Superior Court granted Johnson’s motion to modify his life sentence for first-degree 

rape. The Superior Court modified that sentence to ninety-nine years of Level V 

incarceration, suspended immediately for decreasing levels of supervision. 

(4) On October 15, 2020, the Superior Court found that Johnson had 

violated his probation. The court sentenced Johnson as follows: (i) for escape after 

conviction, one year and nine months of Level V incarceration, suspended for 

eighteen months of Level III probation; and (ii) for first-degree rape, ninety-nine 

years of Level V incarceration, suspended after successful completion of a Level V 

treatment program in DOC’s discretion for six months of Level IV DOC Discretion, 

followed by eighteen months of Level III probation. On January 27, 2021, the 

Superior Court modified the first-degree rape sentence to ninety-nine years of Level 

V inpatient drug treatment, suspended after successful completion of a Level V 

inpatient drug treatment program for six months of Level IV DOC Discretion, 

followed by eighteen months of Level III probation. 

1

Johnson v. State, 2004 WL 5579821 (Del. July 20, 2004).
3

(5) On April 11, 2023, the Superior Court found that Johnson had violated 

his probation. The court sentenced Johnson as follows: (i) for escape after 

conviction, one year and nine months of Level V incarceration, suspended after six 

months; and (ii) for first-degree rape, ninety-seven years, five months, and nineteen 

days of Level V incarceration, suspended after nine months for decreasing levels of 

supervision. Johnson’s appeal of the Superior Court’s judgment is pending in 

Johnson v. State, No. 148, 2023.

(6) On May 5, 2023, Johnson filed a petition for a writ of habeas corpus in 

the Superior Court. He alleged that he was illegally imprisoned for escape after 

conviction. On May 10, 2023, the Superior Court denied the petition, finding that 

Johnson was legally detained. Johnson did not appeal the Superior Court’s 

judgment.

(7) Instead, on May 22, 2023, Johnson filed a petition for a writ of 

mandamus in this Court. He seeks a writ of mandamus directing the Superior Court 

to review his petition for a writ of habeas corpus, hold an evidentiary hearing, and 

release him from prison. 

(8) 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) that the trial court has arbitrarily failed or refused to perform its 
4

duty.2 “[I]n the absence of a clear showing of an arbitrary refusal 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.”3 

(9) Johnson has not shown that the Superior Court arbitrarily failed or 

refused to perform a duty owed to him. The Superior Court reviewed and denied 

Johnson’s petition for a writ of mandamus. The Superior Court was not required to 

hold an evidentiary hearing on Johnson’s petition. In addition, Johnson had an 

adequate remedy in the appellate process. He could have appealed the Superior 

Court’s denial of his petition for a writ of habeas corpus, but did not do so. A writ 

of mandamus is not a substitute for a timely-filed appeal.4 

NOW, THEREFORE, IT IS ORDERED that the State’s motion to dismiss is 

GRANTED. The petition for the issuance of a writ of mandamus is DISMISSED. 

BY THE COURT:

/s/ Karen L. Valihura____

Justice

2

In re Bordley, 545 A.2d 619, 620 (Del. 1988).

3

Id.

4

In re Noble, 2014 WL 5823030, at *1 (Del. Nov. 6, 2014).