Mallish v. Raemisch
662 F. App'x 584
10th Cir.2016Background
- Mallish was charged in Colorado with multiple offenses arising from a domestic dispute; a public defender represented him.
- Defense counsel, concerned about Mallish’s paranoia and potential psychosis, filed for a competency evaluation and amended the request to an in-custody evaluation over Mallish’s objection; he received 74 days’ credit for that pretrial custody.
- Mallish was found competent, tried, convicted of criminal mischief, attempted escape, and harassment, and sentenced as a habitual offender to 12 years.
- He raised federal habeas claims: (1) Sixth Amendment violation by counsel’s request for an in-custody competency exam; (2) due process violations from being taken into custody for the exam; (3) state-law error in where he was housed pending evaluation; and (4) denial of substitute counsel.
- The Colorado courts affirmed; Mallish’s § 2254 petition was denied by the district court and he sought a COA to appeal.
Issues
| Issue | Mallish’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether counsel’s request for an in-custody competency evaluation violated the Sixth Amendment | Counsel’s request deprived him of counsel acting as advocate; he objected to in-custody exam | Defense counsel may move for competency evaluation in good-faith doubts; such motions do not violate Sixth Amendment | Denied — no clearly established law forbids in-custody competency motions; counsel acted within duty to seek evaluation |
| Whether ordering in-custody evaluation violated due process (substantive/procedural) | Forcible pretrial custody for exam deprived him of due process | Subsequent conviction and credited custody moots pretrial detention claim; no expectation of repetition | Moot — claims mooted by conviction; not capable-of-repetition showing |
| Whether trial court exceeded state statutory authority by sending him to county jail rather than state DHS for evaluation | State statute allegedly required placement with state DHS | State-law error not cognizable on federal habeas | Denied — federal habeas does not review state-law errors |
| Whether trial court erred denying substitution of counsel (Sixth Amendment) | Claimed conflicts: counsel conspiring with victim/prosecutor, strategy disputes, and counsel’s competency request | Alleged conflicts were unfounded or strategic; no showing of actual conflict or breakdown preventing adequate defense | Denied — no good cause or actual conflict shown; state court decision reasonable |
Key Cases Cited
- United States v. Cronic, 466 U.S. 648 (U.S. 1984) (defendant’s right to counsel requires counsel acting as advocate)
- United States v. Boigegrain, 155 F.3d 1181 (10th Cir. 1998) (defense counsel may seek competency evaluation over client objection when in good faith)
- Slack v. McDaniel, 529 U.S. 473 (U.S. 2000) (standard for certificate of appealability review)
- Murphy v. Hunt, 455 U.S. 478 (U.S. 1982) (subsequent conviction generally moots pretrial detention challenges)
- Swarthout v. Cooke, 562 U.S. 216 (U.S. 2011) (federal habeas does not lie for state-law errors)
- Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (ineffective assistance from an actual conflict requires showing adverse effect on counsel’s performance)