                                                                                 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.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      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         This order is not binding precedent, except under the doctrines of law of the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

                                          2
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

                                          3
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

                                            4
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

                                           5
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”).
                                            6
