Bethel v. Warden Ohio State Penitentiary
Filing
176
DECISION AND ORDER DENYING PETITIONER'S RENEWED MOTION TO PROCEED PRO SE ON HIS MOTION TO STAY 175 . Signed by Magistrate Judge Michael R. Merz on 7/13/2021. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ROBERT BETHEL,
Petitioner,
:
Case No. 2:10-cv-391
- vs District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
DAVID BOBBY, Warden,
:
Respondent.
DECISION AND ORDER DENYING PETITIONER’S RENEWED
MOTION TO PROCEED PRO SE ON HIS MOTION TO STAY
This capital habeas corpus case is before the Court on Petitioner’s renewed Motion for
Leave to Proceed pro se on a motion to stay these habeas corpus proceedings pending the outcome
of his currently-pending successive petition for post-conviction relief in the Franklin County Court
of Common Pleas (ECF No. 175).
The Magistrate Judge has previously denied Bethel leave to proceed pro se on a motion to
stay on the ground that he is represented in this capital habeas corpus case by counsel and allowing
him to file the motion pro se would condone hybrid representation (ECF Nos. 168, 171). Bethel
has objected to that decision and his Objections (ECF Nos. 169, 172) are pending before District
Judge Barrett for decision.
As a general matter, a party represented by counsel may not file papers pro se. 28 U.S.C.
§ 1654 provides that “parties may plead and conduct their own cases personally or by counsel.”
The disjunctive “or” in the statute means that a litigant must choose between proceeding pro se
1
and proceeding with the assistance of counsel. United States v. Jimenez-Zalapa, 2007 WL
2815563 (W.D. Tenn. 2007)(Breen, D.J.); see also United States v. Mosely, 910 F.2d 93, 97-98
(6th Cir. 1987); United States v. Vampire Nation, 451 F.3d 189 (3rd Cir. 2006); see also McKaskle
v. Wiggins, 465 U.S. 168 (1984), holding there is no constitutional right to hybrid representation.
Bethel argues allowing him to proceed pro se on a motion to stay would not be condoning
hybrid representation because he is not represented by his counsel in this case on his successive
post-conviction petition in Franklin County. That does not solve the hybrid representation issue.
The hybrid representation doctrine applies to cases, not to claims within cases. Because his
counsel in this case have decided, for whatever reason1, not to file a motion to stay, that decision
is binding on Bethel.
The renewed Motion is DENIED.
July 13, 2021.
s/ Michael R. Merz
United States Magistrate Judge
1
In prior decisions, the Magistrate Judge had hypothesized various reasons why counsel may have made that decision.
Counsel have not disclosed their reasons, but those reasons are protected from disclosure by attorney work product
doctrine and/or client confidentiality and loyalty requirements which the Court will not undermine by asking for
reasons.
2
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