Jonathan X. Miller, Petitioner,
State of South Carolina, Respondent.
H. TOAL C.J.
matter is before the Court on a petition for a writ of
mandamus dated September 24, 2007. The Attorney General's
Office and the Richland County Clerk of Court have filed
15, 2004, petitioner filed a motion entitled Motion:
Emergency Writ of Habeas Corpus (2004 habeas petition) in the
circuit court. Petitioner claims he filed a motion of
dismissal in the circuit court in August 2007.
has filed a petition for a writ of mandamus in this Court in
which he alleges the Richland County Clerk of Court and the
State failed to respond to his 2004 habeas petition and his
motion of dismissal. He further claims the State failed to
set a court date for the hearing he requested. Petitioner
requests the State be ordered to set a hearing on his
Attorney General's Office filed a return indicating they
were unaware of petitioner's filings in the circuit
court, and had they been aware of the 2004 habeas petition,
they would have moved to summarily dismiss the petition as an
untimely application for post-conviction relief (PCR).
of return, the Richland County Clerk of Court acknowledges
the filing of the 2004 habeas petition. However, the Clerk of
Court maintains there is no evidence the motion of dismissal
was received. In addition, she states the petition for a writ
of mandamus was not received by her until it was sent to her
by this Court along with a request for a return.
Clerk of Court contends the 2004 habeas petition was without
merit on several procedural and substantive grounds.
Specifically, she argues the 2004 habeas petition was neither
in the form prescribed for a PCR application nor did it
contain information required for a PCR application pursuant
to S.C. Code Ann. § 17-27-50 (2003). Also, she maintains
the 2004 habeas petition amounted to an untimely PCR
addition, she argues the 2004 habeas petition, construed as a
PCR application, contained only conclusory allegations, and
would likely have been dismissed as time barred or found to
be without substantive merit. Also, the Clerk claims the 2004
habeas petition did not raise a violation which constituted a
"denial of fundamental fairness shocking to the
universal sense of justice" pursuant to Simpson v.
State, 329 S.C. 43, 495 S.E.2d 429 (1998).
Clerk argues petitioner failed to allege grounds warranting
the issuance of a writ of mandamus. She claims, because the
2004 habeas petition did not conform to requirements for a
PCR application, "it did not trigger a duty . . . to
take any particular action." In addition, she maintains
the decision when and where to set a hearing is discretionary
rather than mandatory. The Clerk further contends the 2004
habeas petition was mooted by petitioner's release from
incarceration into the Community Supervision Program because
the only purpose of a habeas corpus petition is to seek
release from the current term of incarceration.
is the highest judicial writ and is issued to compel a public
official to perform a ministerial duty, not a discretionary
duty, and only when there is a specific right to be enforced,
a positive duty to be performed, and no other available legal
remedy. Riverwoods, L.L.C. v. County of Charleston,
349 S.C. 378, 563 S.E.2d 651 (2002); City of Rock Hill v.
Thompson, 349 S.C. 197, 563 S.E.2d 101 (2002); Ex parte
Littlefield, 343 S.C. 212, 540 S.E.2d 81 (2000); Redmond
v. Lexington County Sch. Dist. No. 4, 314 S.C. 431, 445
S.E.2d 445 (1994).
the filing of a petition for a writ of habeas corpus, the
Clerk of Court should verify the document contains a case
caption, a proper county designation, and the signature of
the filing party, and should forward a copy of the petition
to the Attorney General's Office. S.C. Clerk of Court
Manual § 6.24.
petitioner failed to name the Clerk of Court as a party or
serve his petition for a writ of mandamus on her, he may not
seek mandamus relief as to her. Thompson, supra (holding a
party seeking mandamus must serve the party against whom
relief is sought). Moreover, the 2004 habeas petition became
moot upon petitioner's release from incarceration. Gibson
v. State, 329 S.C. 37, 495 S.E.2d 426 (1998) ("The
inquiry on habeas corpus is limited to the legality of the
prisoner's present detention.") (emphasis added).
Also, petitioner has not shown the Clerk failed to perform
any duty as to the motion of dismissal because the evidence
indicates the motion of dismissal was never received by the
Clerk. Accordingly, the petition for a writ of mandamus is
we take this opportunity to emphasize the Clerk of
Court's duties regarding the filing of a petition for
habeas corpus. The Clerk of Court has the ministerial duty to
verify the petition contains a case caption, a proper county
designation, and the signature of the filing party, and to
forward a copy of the petition to the Attorney General's
office. S.C. Clerk of Court Manual § 6.24. The Clerk of
Court's duty is not discretionary. The Clerk of Court
should not construe a petition for a writ of habeas corpus as
a PCR application. In addition, although a habeas corpus
petition may be flawed on a number of procedural and
substantive grounds, it is not within the Clerk of
Court's authority to refuse to perform her duty based ...