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2011-UP-056 - 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Unpublished Opinion No.  2011-UP-056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.