IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMIR FATIR , aka STERLING ) HOBBS ) ) P etitioner , ) )
v. ) C.A. No. N 20 M

- 03

- 066 JRJ ) LORETTA EDWARDS and THE ) JAMES T. VAUGHN ) CORRECTIONAL CENTER ) ) ) Defendants. )
ORDER
Date Submitted: March 23 , 202 1 Date Decided: June 23 , 2021 Upon consideration of P etitioner Amir Fatir (“Fatir”)’s Petition for a Writ of
Mandamus (the “Petition”) , Defendants Loretta Edwards (“Edwards”) and The James T. Vaughn Correctional Center (“JTVCC”), ( collectively, the “Defendants’”) Motion to Dismiss, Fatir’s Response to Defendants’ Motion to
Dismiss , and Defendants’ Reply in Support of the Motion to Dismiss thereto, IT
APPEARS THAT : 1

. On Marc h 13, 2020, Fatir petitio ned for a Writ of Mandamus seeking
to have this Court order Defendants to fulfill their responsibilities as part of the2

prisoner furlough recommendation process. 1 According to Fatir , pursuant to the Department of Correction’s (“D OC”) Bureau of Prison Policy and Inmate Reference Manual, the prisoner furlough process begins with a recommendation by a Multidisciplinary Team (“MDT”) member following an evaluation and interview with the prisoner. 2 The MDT member ma y make a recommendation that a prisoner is fit for participation in the furlough program to the Institutio nal Based Classification Committee (“IBCC”). 3 The IBCC then reviews the recommendation
and advises the Central Institutional Classification Board (“CICB”) and the
Institutional Release Classifi c ation Board (“IRCB”) as to the recommendation. 4

2. Fatir claims he sought approval for a furlough from two MDT members during his yearly classification committee meeting in September 2019
and thos e MDT members recommended to the IBCC that Fatir receive a furlough. 5
Fatir further claims that one month later he was informed that Edwards, a member of the IBCC, received the MDT members’ recommendation but chose not to
forward the recommendation to the CIBC or IRCB, or otherwise take any action. 6

1 Complaint (“Compl.”) (Trans. ID 64827171) 2 Id. at 2. 3 Id. at 3. 4 Id. 5 Id. at 2; see also Petitioner’s Response to Defendants’ Motion to Dismiss (“Pet.’s Rep.”) at 1 (Trans. ID 66306621). 6 Pet.’s Rep. at 1

- 2.3

3. Fatir argues that pursuant to DOC policy Edwards must record the MDT’s recommendation that Fatir be considered for a furlough and forward the
recommendation to the CIBC and/or IRCB for consideration. 7 Fatir alludes to the possibility that his furlough recommendation was denied due to his status as a class
A felon. 8 Fatir argues that al though he is a class A felon, the current version of 11
Del. C. § 6538 prohibiting class A felons from receiving furloughs does not apply

to him because he was arrested, convicted and sentenced before the current version
was enacted. 9

4. Defendants move to dismiss the P etition, arguing that Fatir is
statutoril y ineligible to receive a furlough because he was convicted of a c lass A felony , and therefore his Petition is without merit

. 10 In the alternative, Defendants
argue Fatir cannot demonstrate he has a constitutional or legal right to receive a furlough or a particular classification within the DOC, and thus he cannot establish
the elements necessary for mandamus relief. 11

7 Id. at 4. 8 Compl. at 5. In 1978, 11 Del. C. § 6538 was amended with the addition of a provision prohibiting DOC from granting furlo ughs to an individual convicted of a class A felony. See 11 Del. C. § 6538(e). 9 Compl. at 5. 10 Defendants’ Motion to Dismiss (“Mot. to Dis.”) at 2 (Trans. ID 66125203) . Pursuant to 11 Del. C. § 6538(e), “no person serving a sentence imposed fo r a class A felony shall be permitted to participate in any furlough or furlough program under this section. 11 Del. C. § 6538(e). 11 Defendants’ Reply in Support of Motion to Dismiss (“Defs.’ Rep.”) at 4 (Trans. ID 66446600).4

5. In his response to Defendants’ Motion to Dismiss, Fatir claims that with respect to the applicability of 11 Del. C. § 6538, prisoners must be considered for furloughs according to the particular version of the statute in effect at the time the prisoner’s offense was committed, not at the time of sentencing. 12 Fatir also
claims that the JTVCC staff failed to adher e to the furlough process and procedures
as set forth in the Inmate Reference Manual 13 and that he has a liberty interest in being considered for a furlough

. 14

6. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court
shall accept all well

- pleaded allegations as true and make all reasonable inferences
in favor of the non

- moving party. 15 In deciding a motion to dismiss a petition for a writ of mandamus, the Court “must consider the standards a party must meet in obtaining the writ.” 16

12 Id. at 2. 13 Id. at 8. Fatir claims that Edwards unilaterally blocked the MTD’s furlough recommendation for Fatir in violation of the Bureau of Prison Policy which requires that the IBCC be comprised of at least 3 individual staff members. Id. 14 Id. at 9. Fatir expressl y states that his Petition does not seek a particular classification or approval for a furlough, but merely to be afforded the process of a through and complete consideration for furlough according to DOC policy. Id. 15 Ramunno v. Cawley , 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk , 396 A.2d 967, 968 (Del. 1978); see also Allen v. Coupe , 2016 WL 676041, at *2 (Del. Super. Feb. 18, 2016) (“Delaware courts have consistently followed the standards of Superior Court Civil Rule 12(b)(6) wh en considering motions to dismiss writ of mandamus petitions.”) (internal citations omitted). 16 Shah v. Coupe , 2014 WL 5712617, at * 1 (Del. Super. Nov. 3, 2014).5

7. It is well

- settled Delaware law that the issuance of a writ of mandamus is not a right but is a matter of judicial discretion. 17 In order for the writ to issue, the petitioner must demonstrate that : ( 1) he has a clear right to t he performance of the duty ; ( 2) no other adequate remedy is available ; and ( 3) the agency has arbitrarily failed or refused to perform its duty. 18

8. W ith respect to internal DOC policy, it is well established that the administration of state prisons fa lls under the auspices of the executive branch. 19

9

. Fatir was convicted and sentenced f or First Degree Murder, a class A felony , in 1976 and was re

- sentenced to life without parole in 1980, following the Delaware Supreme Court’s decision in State v. Spen ce . 20 When Fatir was first sentenced in 1976, 11 Del. C. § 6538 did not contain a provision barring class A felons from receiving furloughs. In 1980, when Fatir was resentenced, the statute had been amended to include said prohibition. Fatir re ceived the MDT furlough recommendation in September 2019.

17 Washington v. Dep't of Correction , 2006 WL 1579773, at *2 (Del. Super. May 31, 2006 ). See a lso Shah , 2014 WL 5712617, at *1. 18 Morton v. Jennings , 2021 WL 2355232, at *2 (Del. Super. June 8, 2021) (internal citations omitted). 19 Desmond v. Phelps , 2011 WL 7144241, at *2 (Del. Super. Nov. 4, 2011). 20 State v. Spence , 367 A.2d 983 (Del. 1976) (ove rturning Delaware’s Mandatory Death Penalty statute).6

10. Fat ir provides no support for the claim that the version of a statute in
effect at the time an offense i s committed must apply to his furlough request. In fact, this Court has previously held contrary to Fatir’s assertion . In State v. Serfuddin El , this Cou rt considered a similar petition for writ of mandamus from a prisoner who was convicted of second

- degree murder as it was defined before the
revisions to the Delaware Criminal Code came into effect on July 1, 1973. 21
Because the offense of second

- degree m urder was defined as a class A felony after the prisoner’s conviction, he argued that the DOC could not deny him work release or furloughs. 22 Th e Court found that the differences between the two versions of the offense were “of no practical consequence” a nd therefore the prisoner’s
conviction would be treated as a class A felony , barring him from receiving furloughs

. 23 In addition, the Court in Serfuddin El reiterated that the Delaware General Assembly’s purpose in amending 11 Del. C. § 6538 was to prohibit the DOC from granting furloughs to class A felons. 24

11. Considering the Delaware General Assembly’s intent in amending § 6538, the Court reaches the same conclusion here. As of 19 78 , when § 6538 was amended, the DOC has been st atutorily prohibited from granting furloughs to

21 State v. Serfuddin El , 2009 WL 74128, at *2 (Del. Super. Jan. 7, 2009). 22 Id. 23 Id. at 3. 24 Id.7

individuals convicted of a class A felony. 25 When he began the furlough recommendation process in 2019, the DOC was statutorily prohibited from granting Fatir a furlough.

1 2

. To the extent Fatir claims an ex post facto violation, the Court finds that denial of furlough according to 11 Del. C. § 6538(e) does not violate the ex post facto clause. 26 “A law violates the ex post facto prohibition when it changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” 27 In Distefano v. Watson , two prisoners challenged a
1986 amendment to 11 Del. C. § 6537 , which barred individuals convicte d of class A felonies and class B felony sex offenses from participating in any program or engaging in any visitation beyond the confines of a secured penal institution within the first 10 years of said sentence. 28 The prisoners claimed the new version of 11
Del. C. § 6537 could not operate retroactively, and thus could not apply to them because when they were convicted and sentenced, prior to the amendment’s enactment, they would have been eligible to participate in programs and visitations

25 See Henson and Taylor v. Sullivan , 1985 WL 189322, at *1 (Del. Super. Dec. 4, 1985). 26 Distefano v. Watson , 566 A.2d 1, 5 (Del. 1989). T o the extent Fatir alleges his constitutional rights were violated when Edwards unilaterally denied his recommendation, rather than putting the recommendation before a three

- person IBCC pursuant to the Bureau of Prison Policy , the Court finds no merit in this argument. Fatir is statutorily barred from receiving a furlough, and therefore the MDT should not have recommended him for a furlough and under no circumstance could a full IBCC ha ve chosen to forward the recommendation to the CIBC or IRCB. 27 Id. (internal citations omitted). 28 Id. at 2.8

u nder the stat ute

. 29 The Delaware Sup reme Court, relying in part on a decision by the United States District Court of Delaware, held that the statute at issue is “an
administrat ive law which regulates the Department of Correction’s internal affairs,
and is not a law annexed to the crime.” 30 For this reason, applying the then current
version of 11 Del. C. § 6537 to the prisoners did not violate the constitutional prohibition against ex post facto laws. 31

1 3

. The same reasoning applies here. 11 Del. C. § 6538 prescribes the DOC’s authority to permit prisoner participation in furloughs; § 6537 does the same but applies to prisoner participation in external programs and visitations.
There is no discernible , functional difference between § 6537 and § 6538 for purposes of an ex post facto analysi s; both sections deal with the DOC’s internal affairs and prisoner classifications and neither involve elements of punishment attached to the prisoner’s initial conviction. 32 Therefore, applying the current version of § 6538 to Fatir’s furlough request do es not violate the constitutional prohibition on ex post facto laws. 33

29 Id. at 3. 30 Id. at 6 (citing Marvel v. Ryan , 1987 WL 61190 (D.Del. Aug. 13, 1987)). 31 Id. 32 Distefano , 566 A.2d at 5 ( internal citations omitted). 33 Fatir unsuccessfully brought an action under 42 U.S.C. § 1983 in the United States District Court of Delaware for alleged ex post facto clause violations as to the denial of furloughs to class A felons. 33 There, the Court found the claim failed because it “do[es] not fall under the provisions of the ex post facto ...clause.”9

1 4

. The Court has no authority to compel an act which the Delaware Legislature has expressly prohibited. The purpose of 11 Del. C. § 6538(e) is to
limit the DOC ’s authority as it relates to issuing furloughs to individuals convicted of a class A felony. As a n individual convicted of a class A felony, Fatir is barred from receiving a furlough under any circumstance. For this reason, Edwards’ decision not to pass the recommendation through the chain of command at DOC
was warranted and Defendants ’ Motion to Dis miss must be granted.
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants ’
Motion to Dismiss is GRANTED

. 

# Jan R. Jurden

___________________ _________ Jan R. Jurden, President Judge
Original to Prothonotary cc: Amir Fatir (SBI #137010 ) Kenneth L. Wan, DAG