FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 3, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL J. MALLISH,
Petitioner - Appellant,
v. No. 16-1254
(D.C. No. 1:15-CV-02470-RM)
RICK RAEMISCH, Executive Director of (D. Colo.)
the Colorado Department of Corrections;
CYNTHIA COFFMAN, Attorney General
of the State of Colorado,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Michael Mallish seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss
the appeal.
I
Mallish was charged in Colorado state court with felony menacing, attempted
escape, criminal mischief, and harassment in connection with a domestic dispute.
During pre-trial proceedings, Mallish became convinced that the victim, the
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prosecutor, and defense counsel knew each other and were conspiring against him.
Concerned over Mallish’s paranoia, his public defender filed a sealed motion for an
out-of-custody competency evaluation. At a hearing on the motion, defense counsel
changed her request to an in-custody competency evaluation, citing “safety concerns
due to potential psychosis.” Over Mallish’s objection, the court granted counsel’s
request.
Mallish was subsequently deemed competent to stand trial. Although there is
some confusion regarding the length of time Mallish was in custody awaiting the
competency evaluation, he was credited with 74 days of confinement. Mallish later
asserted a conflict with defense counsel. After hearing from both Mallish and his
attorney, the court concluded that any personal conflict between the two did not
warrant substitution of counsel.
A jury convicted Mallish of two counts of criminal mischief, one count of
attempted escape, and one count of harassment. He was sentenced as a habitual
offender to twelve years’ imprisonment. The Colorado Court of Appeals affirmed,
and the Colorado Supreme Court denied certiorari. Mallish filed a § 2254 petition in
federal court. The district court denied relief and declined to issue a COA. Mallish
now seeks a COA from this court.
II
A petitioner may not appeal a district court order denying federal habeas relief
without a COA. § 2253(c)(1). We will grant a COA “only if the applicant has made
a substantial showing of a denial of a constitutional right.” § 2253(c)(2). To meet
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this standard, Mallish “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). If a claim was adjudicated on the merits in
state court, a petitioner must show the state court adjudication “was based on an
unreasonable determination of the facts” or “was contrary to, or involved an
unreasonable application of, clearly established Federal law.” § 2254(d)(1)-(2).
A
Mallish contends he was deprived of his Sixth Amendment right to counsel
when his public defender requested an in-custody competency evaluation. The
Colorado Court of Appeals held that Mallish’s disagreement with this request was
insufficient to establish a Sixth Amendment violation and noted that defense counsel
was obligated to inquire into Mallish’s competency.
The Sixth Amendment guarantees criminal defendants the right to “counsel
acting in the role of an advocate.” United States v. Cronic, 466 U.S. 648, 656 (1984)
(quotation omitted). However, defense counsel also has a duty to “move for
evaluation of the defendant’s competence to stand trial whenever the defense counsel
has a good faith doubt as to the defendant’s competence.” United States v.
Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998) (quoting ABA Standards for
Criminal Justice, Standard 7-4.2(c)). Thus, we have held that “defense counsel may
move for a competency determination against a client’s wishes without violating the
Fifth or Sixth Amendment.” Id. Mallish contends this rule should not apply with
respect to in-custody competency determinations but does not direct us to any clearly
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established federal law to that effect. Accordingly, he is not entitled to relief on this
claim. See § 2254(d)(1).
B
Mallish also argues that the state trial court violated his rights to substantive
and procedural due process when it ordered that he be taken into custody to undergo
a competency evaluation. We agree with the district court that these claims are moot.
A claim becomes moot “when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 396 (1980) (quotation omitted). As a result of his
conviction, Mallish was sentenced to twelve years’ imprisonment and credited for the
74 days he spent in custody awaiting the competency evaluation. Claims regarding
pre-trial detention are generally mooted by a subsequent conviction. See Murphy v.
Hunt, 455 U.S. 478, 481-82 (1982) (per curiam) (holding that appellee’s
constitutional challenge to denial of pre-trial bail was mooted by his subsequent
conviction). Although there is an exception to the mootness doctrine for claims
“capable of repetition, yet evading review,” Mallish has not demonstrated “a
reasonable expectation that [he will] be subjected to the same action again.” Id. at
482 (quotation omitted).
C
In his third claim, Mallish asserts that the trial court exceeded its authority
under Colo. Rev. Stat. § 16-8.5-105(1)(a) (2013) by sending him to a county jail
rather than to the Colorado Department of Human Services pending his competency
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evaluation. However, the district court correctly held that claims of state-law error
are not cognizable on federal habeas review. See Swarthout v. Cooke, 562 U.S. 216,
219 (2011) (per curiam) (“[F]ederal habeas corpus relief does not lie for errors of
state law.” (quotation omitted)).
D
Finally, Mallish argues that his Sixth Amendment rights were violated when
the state trial court denied him substitute counsel. A defendant seeking substitution
of counsel must show “good cause, such as a conflict of interest, a complete
breakdown of communication or an irreconcilable conflict which leads to an
apparently unjust verdict.” See United States v. Padilla, 819 F.2d 952, 955 (10th Cir.
1987) (quotation omitted). A prisoner may demonstrate ineffective assistance of
counsel by showing that “an actual conflict of interest adversely affected his lawyer’s
performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Mallish alleged a conflict with his public defender stemming from: (1) his
belief that defense counsel had a personal relationship with the victim and the
prosecutor; (2) disagreements over trial strategy; and (3) defense counsel’s request
that he undergo an in-custody competency evaluation. The Colorado Court of
Appeals reasonably concluded that Mallish did not establish good cause. Mallish’s
unfounded insistence that his attorney was conspiring with the victim and prosecutor
is insufficient grounds for relief. See Romero v. Furlong, 215 F.3d 1107, 1114 (10th
Cir. 2000) (“A breakdown in communication warranting relief under the Sixth
Amendment cannot be the result of a defendant’s unjustifiable reaction to the
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circumstances of his situation.”). Nor do disagreements over trial strategy suffice.
See United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). Finally, Mallish has
failed to rebut the state court’s finding that any conflict or breakdown stemming from
counsel’s request for a competency evaluation did not persist through trial so as to
prevent an adequate defense.1
III
For the reasons stated above, we DENY a COA and DISMISS the appeal.
Appellant’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
Mallish does not challenge the district court’s dismissal of his prosecutorial
misconduct claim or his claim that the trial court deprived him of his right to counsel
of choice when it declined to substitute privately retained counsel for the court-
appointed public defender. Therefore, we do not consider these claims. See United
States v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (claim waived if
petitioner “failed to address that claim in either his application for a COA or his brief
on appeal”).
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