Murray v. Koffskey

THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Ricky L. Murray, Appellant,

v.

Dawn Koffskey, Respondent.

Appeal From Greenville County

Edward W. Miller, Circuit Court Judge

Unpublished Opinion No.  2011-UP-056

Submitted February 1, 2011 – Filed
February 15, 2011

AFFIRMED

Ricky L. Murray, pro se, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John
W. McIntosh, and Assistant Attorney General Warren V. Ganjehsani, all of
Columbia, for Respondent.

PER CURIAM:  Ricky L. Murray appeals the circuit
court's denial of his petition for a writ of mandamus and dismissal of his
action, arguing the circuit court erred in: (1) denying his request for a tape
of the PCR hearing based on an impermissible form of hybrid representation; and
(2) denying his petition for writ of mandamus.  Additionally, Murray contends
his PCR appellate counsel was ineffective for failing to subpoena the court
reporter for a copy of the tape.  We affirm.[1] 

1.  As to whether the circuit court
erred in denying Murray's request for a tape of the PCR hearing based on an
impermissible form of hybrid representation:  Murray made an invalid pro se
request for the tape of the PCR hearing because the Office of Appellate Defense
represented him at that time for purposes of his PCR appeal.  Because Murray
was represented by counsel at the time of the request, any request for the tape
was required to be made by counsel.  See State v. Stuckey, 333
S.C. 56, 58, 508 S.E.2d 564, 564 (1998) ("[Because] there is no right to
hybrid representation, substantive documents filed pro se by a person
represented by counsel are not accepted unless submitted by counsel.").      

2.  As to whether the circuit court
erred in denying Murray's petition for writ of mandamus:  Murray did not
demonstrate he lacked a legal remedy to challenge the accuracy of the PCR
transcript because he could have timely made a request through his appellate
counsel under Rule 607(i), SCACR.  See Wilson v. Preston, 378
S.C. 348, 354, 662 S.E.2d 580, 583 (2008) ("To obtain a writ of mandamus
requiring the performance of an act, the petitioner must show: (1) a duty of
respondent to perform the act; (2) the ministerial nature of the act; (3) the
petitioner's specific legal right for which discharge of the duty is necessary;
and (4) a lack of any other legal remedy.").  Accordingly, the circuit
court correctly denied Murray's petition for writ of mandamus.

3.  As
to whether Murray's PCR appellate counsel was ineffective for failing to
subpoena the court reporter for a copy of the tape:  Murray's claims of ineffective
assistance of counsel are better suited for post-trial conviction relief
proceedings.  See State v. Carpenter, 277 S.C. 309, 309-10, 286
S.E.2d 384, 384 (1982) (finding claims of ineffective assistance of counsel
must be asserted under the Post-Conviction Relief  Act).     

AFFIRMED.

HUFF, SHORT, and PIEPER, JJ., concur.

[1]  We decide this case without oral argument pursuant to
Rule 215, SCACR.