United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING MOTION TO WITHDRAW [#30] AND STRIKING
MOTIONS TO DISMISS [#29, #32]
Page Hood Chief Judge
October 20, 2017, a Complaint was sworn against Defendant
Maurice Boraders and Macy Kissy Hood. On the same day,
Defendant was arrested and Otis Culpepper was appointed to
represent Defendant. A detention hearing was held on October
23, 2017, at which Defendant was represented by retained
attorney Randall Up shaw. A consent order of detention was
entered that day - allegedly, upon the advice of counsel. On
October 30, 2017, November 30, 2017, and January 30, 2018,
stipulated orders to continue were entered.
March 6, 2018, an Information was filed against Defendant. On
that date, Melonie Bates appeared for Defendant in front of
Judge Stephen Murphy. On the advice of counsel, Defendant
waived Indictment and acknowledged the Information. Defendant
indicates that he first learned that day of his rights under
the Speedy Trial Act. On March 21, 2018, a notice of jury
trial was entered, setting the trial for April 17, 2018.
April 2, 2018, Defendant filed a pro se Motion to
Dismiss [#29] alleging: (1) ineffective assistance of
counsel; and (2) violation of his speedy trial rights because
it was more than 100 days between the day of his arrest and
initial appearnace and the date the information was filed
against him. On April 5, 2018, Randall Upshaw filed a Motion
to Withdraw as Counsel (“Motion to Withdraw”)
[#30]. The Motion to Withdraw identifies only Mr. Upshaw as
the counsel seeking to withdraw, even though Ms. Bates is
also from his office. On April 17, 2018, Defendant filed a
duplicate pro se Motion to Dismiss [#32]. On April
18, 2018, the Court held a hearing regarding the three
Motion to Withdraw [#30]
Upshaw states that “there has been a breakdown in the
attorney-client relationship to the extent that [Mr.] Upshaw
is no longer able to represent Defendant” and that
“factors have arisen . . . which make it impossible to
adequately represent Defendant.” Dkt. 30, PgID 51. On
the record, Mr. Upshaw outlined the efforts he had made with
Defendant, including having visited him twice, talked to
Defendant telephonically, and negotiating a possible Rule 11
plea agreemen on Defendant's behalf. Mr. Upshaw indicated
that he did not feel Defendant listened to him. Mr. Upshaw
asserts that Defendant will not be prejudiced in any manner.
At the hearing, Mr. Upshaw indicated that the Motion to
Withdraw also was intended to encompass and apply to Ms.
the Court asked Defendant if he agreed with Mr. Upshaw's
request to withdraw as counsel, Defendant agreed with Mr.
Upshaw's request and confirmed he desired a new attorney.
Defendant indicated that he did not think Mr. Upshaw was
working as he should on Defendant's behalf, did not
adequately communicate with Defendant, and did not
appropriately respond to Defendant's family.
Government took no position regarding the Motion to Withdraw.
Court finds that there has been an irreconcilable breakdown
of the attorney-client relationship, grants the Motion to
Withdraw, and terminates the legal representation of
Defendant by Mr. Upshaw and Ms. Bates.
Motion to Dismiss [#29 and #32]
Motions to Dismiss must be stricken. Defendant was
represented by counsel when he filed both Motions to Dismiss.
It is well-established law in the Sixth Circuit that a
criminal defendant cannot proceed with hybrid representation,
whereby he asserts both the right to proceed pro se
and the right to counsel - he must choose one or the other.
See, e.g., United States v. Mosely, 810 F.2d 93, 97
(6th Cir. 1987) (citing United States v. Conder, 423
F.2d 904, 908 (6th Cir.), cert. denied, 400 U.S. 958
only possible exception to that rule would be if the Court
permits a form of hybrid representation. Mosely, 810
F.2d at 97-98. Defendant did not file a motion to proceed
pro se or by hybrid representation. Defendant
expressly states that he is “not acting in a hybrid
fashion with attorney Randall P. Upshaw or Melonie K.
Bates.” See Dkt. No. 29, PgID 38. The Court
has not determined, and does not determine, that hybrid
representation is appropriate or necessary at this stage of
the proceedings. The Court orders that the Motions to Dismiss
[#29 and #32] filed by Defendant be stricken from the docket.
The Court's order to strike is without prejudice to the
arguments made in the Motions to Dismiss based on
ineffectiveness of counsel and the Speedy Trial Act.