                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-6463



MAYS WILSON TATE, JR.,

                                            Petitioner - Appellant,

           versus


WILLIAM PAGE TRUE, Warden, Sussex I State
Prison; GENE M. JOHNSON, Director, Virginia
Department of Corrections; JUDITH WILLIAMS
JAGDMANN, Attorney General of the State of
Virginia,

                                           Respondents - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.   Jackson L. Kiser, Senior
District Judge. (7:05-cv-00422-jlk)


Argued:   December 4, 2007              Decided:     February 13, 2008


Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
John Preston BAILEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: David Paul Mitchel, MICHAEL J. BRICKHILL, P.C., Appomattox,
Virginia, for Appellant.     Leah Ann Darron, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellees. ON BRIEF: Michael J. Brickhill, Appomattox, Virginia,
for Appellant. Robert F. McDonnell, Attorney General, Richmond,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Mays Wilson Tate, Jr. (Tate), a Virginia inmate, filed a

petition for a writ of habeas corpus in the United States District

Court    for   the   Western    District      of   Virginia,       challenging   the

validity of his convictions in the Circuit Court of Buckingham

County, Virginia.       The district court dismissed the petition, and

a timely appeal was filed with this court.                  Finding no error, we

affirm.



                                          I

       Tate was originally convicted by a jury in May, 1995, of

capital murder, first degree murder, second degree murder, use of

a firearm in the commission of a felony, breaking and entering

while armed with a deadly weapon, and grand larceny of a vehicle.

He    was   sentenced   to     three   life     terms   plus       forty-six   years

incarceration.

       On June 25, 1996, the Court of Appeals of Virginia reversed

Tate’s convictions, finding that the trial court erred in allowing

the Commonwealth to introduce too many details about other crimes

allegedly committed by Tate, and remanded for a retrial.                  See Tate

v. Commonwealth, 1996 WL 343898 (Va. App. June 25, 1996).

       In January, 1997, Tate’s retrial ended in a mistrial when it

was     discovered   that      he   was   not      taking    his    anti-psychotic




                                          3
medication. The trial court determined that Tate was not competent

to stand trial without the medication.1

     Tate was tried for a third time in October, 1997.         Tate

remained in the courtroom during the first day of trial.   However,

following a morning recess on the second day, Tate informed the

trial judge that his medication was making him too sleepy to remain

awake during the trial.2   The following exchange then took place

between Tate, his attorney, and the trial judge:

Tate:     Well, since I’m being - - have to take my medicine and I

          keep going to sleep while I’m out here, I don’t feel like

          I can help [his attorney] very much while this trial is

          going on.    So I’d like to be held in my cell until we

          start our defense.   Then I’d like to show up then and - -

          that’s what I’m requesting.

Court:    So you are requesting to be out of the courtroom while

          the Commonwealth is presenting its case?

Tate:     Yea.   I just want to be here for my defense and that’s

          it.

Court:    All right.


     1
      Tate was initially found to be incompetent to stand trial
when he was first charged in 1994. He was later determined to be
competent if appropriately medicated.
     2
      Apparently, Tate was falling asleep during the first day of
trial as well. On the morning of the second day of the trial, the
judge instructed the jury that Tate’s medication (unidentified) was
making him sleepy and not to infer that Tate was disinterested in
his trial.

                                 4
Tate:      We’ve discussed everything, went over everything several

           different times so it’s not nothing that I would miss.

Counsel:   Judge, let me just say this.   It's against my advice.   My

           request would be that he be brought back - - if the court

           grants his request that he be permitted to go back to

           Buckingham, that he be brought back here tomorrow morning

           and let him make the decision tomorrow morning depending

           on where we stand at that time.

Court:     All right. Mr. Tate, do you - - first of all, do you

           understand that it is against your lawyer’s advice not to

           be present during the presentation of the Government's

           case against you?

Tate:      Yes.

Court:     Secondly, do you fully understand that by virtue of your

           absence your lawyer may from time to time be suffering or

           laboring at a disability not being able to confer with

           you on the spot as to certain things that may arise

           during the course of this trial?

Tate:      Yes.

Court:     And are you authorizing Mr. Snook to proceed in your

           absence?

Tate:      I’ve pretty much left everything up to him anyway on

           this, all the decisions.




                                 5
Court:    All right. Well, I can say I’ve had many instances where

          the reverse of the situation has occurred.          I’ve never

          had a defendant who has requested not to be present.         Of

          course, the constitution gives you the absolute right to

          be here.     You understand that?

Tate:     Yes.

Court:    May I ask then are you waiving your . . . Sixth Amendment

          right to confrontation?

Tate:     Yes.

Court:    Because you have a right to see these witnesses, to hear

          these witnesses, and to cross examine these witnesses.

          Certainly, Mr. Snook will be afforded that right to cross

          examine.     By the same token, the Sixth Amendment gives

          you the right to be here, to listen, and to confront the

          witnesses     that   are   testifying   against   you.     You

          understand that?

Tate:     Yes.

Court:    You do.      All right.    I don’t have a problem with this,

          with Mr. Tate not being present.

. . .

     During   Tate’s     absence,    the   Commonwealth   called   eleven

witnesses to testify. Tate returned on the fourth day and remained

for the duration of the trial.        The jury convicted Tate of three

counts of second degree murder, one count of breaking and entering,


                                     6
and one count of grand larceny of an automobile.   He was sentenced

to serve twenty years for each offense, to be served consecutively,

for a total of one hundred (100) years imprisonment.

     The Court of Appeals of Virginia affirmed his convictions, and

the Virginia Supreme Court denied Tate’s petition for appeal.

     In April, 2001, Tate filed a state habeas petition raising the

following claims: (1) his Sixth and Fourteenth Amendment rights to

be present at trial and confront witnesses were violated; and (2)

counsel was ineffective for waiving the opportunity to have Tate

reevaluated to determine whether he remained competent to waive his

right to be present during the presentation of the prosecution’s

case and by failing to request a continuance or move for a mistrial

because the medication Tate was required to take made him so drowsy

that it prevented him from remaining sufficiently alert to assist

counsel in the defense of his case.   The state court denied relief,

and the Virginia Supreme Court refused Tate’s petition for appeal.

     Tate then filed the underlying § 2254 petition raising the

following claims: (1) his Sixth and Fourteenth Amendment rights to

be present at trial and confront witnesses were violated; (2) the

Commonwealth interfered with his right to effective assistance of

counsel by involuntarily administering the anti-psychotic drug

Mellaril to make Tate competent to stand trial; and (3) counsel was

ineffective for waiving the opportunity to have Tate reevaluated to

ascertain that he remained competent, by failing to request a


                                7
continuance or move for a mistrial, and by failing to object on

confrontation, due process, or competency grounds to the trial

proceeding in Tate’s absence or while he was present but so drowsy

that it prevented him from remaining sufficiently alert to assist

counsel in the defense of his case.

     The district court denied relief on all of Tate’s claims.

Tate filed a timely appeal with this Court.



                                    II

     We review de novo the district court’s dismissal of Tate’s

habeas petition.    Meyer v. Branker, 506 F.3d 358, 364 (4th Cir.

2007), (citing Allen v. Lee, 366 F.3d 319, 323 (4th Cir. 2004) (en

banc)); Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir. 2002).

     “The federal habeas statute ‘dictates a highly deferential

standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt.’        Bell v.

Cone, 543 U.S. 447 (2005) (internal quotation marks and citation

omitted).      The required deference encompasses both the state

court's legal conclusions and its factual findings.”             Lenz v.

Washington, 444 F.3d 295, 299 (4th Cir. 2006).

     Under 28 U.S.C. § 2254(d), a district court may only grant

federal   habeas   relief   for   state   prisoners   when   state   court

proceedings:

     (1) resulted in a decision that was contrary to, or
     involved an unreasonable application of, clearly

                                    8
     established Federal law, as determined by the Supreme
     Court of the United States; or
     (2) resulted in a decision that was based on an
     unreasonable determination of the facts in light of the
     evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (2000).

     The   parameters   of   our   review   is   set   forth   in   Lenz   v.

Washington, 444 F.3d at 299-300, in which the court stated:

          Where the state court has adjudicated a particular
     claim on the merits, federal habeas relief is appropriate
     only in two circumstances. The first occurs if the state
     court’s judgment “resulted in a decision that was
     contrary to, or involved an unreasonable application of,
     clearly established Federal law, as determined by the
     Supreme Court of the United States.”         28 U.S.C. §
     2254(d)(1).     A decision is “contrary to” clearly
     established Supreme Court precedent if “the state court
     applies a rule that contradicts the governing law set
     forth in [the Supreme Court’s] cases” or “confronts a set
     of facts that are materially indistinguishable from a
     decision of [the Supreme Court] and nonetheless arrives
     at a result different from [its] precedent.” Williams v.
     Taylor, 529 U.S. 362, 405-06 (2000); see also Lovitt v.
     True, 403 F.3d 171, 178 (4th Cir. 2005).              “An
     ‘unreasonable application’ occurs when a state court
     identifies the correct governing legal principle from
     [the Supreme] Court’s decisions but unreasonably applies
     that principle to the facts of [a] petitioner’s case.”
     Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal
     quotation marks omitted); see also Booth-El v. Nuth, 288
     F.3d 571, 575 (4th Cir. 2002).
          The second circumstance where a federal court may
     grant habeas relief despite a state court decision on the
     merits is if the state court’s judgment “resulted in a
     decision that was based on an unreasonable determination
     of the facts in light of the evidence presented in the
     State court proceeding.”       28 U.S.C. § 2254(d)(2).
     Moreover,   in   reviewing    a   habeas   petition,   “a
     determination of a factual issue made by a State court
     shall be presumed to be correct” unless the habeas
     petitioner rebuts this presumption “by clear and
     convincing evidence.” Id. § 2254(e)(1).



                                    9
                                         III

     Tate first alleges that he was deprived of his right to be

present    at   trial   by    the   State’s    administration     of    the   anti-

psychotic drug, Mellaril. On the second day of trial, Tate, noting

that he had difficulty remaining alert during voir dire on the

previous day, requested that he be permitted to remain outside the

courtroom during the prosecution’s case. The trial court conducted

a colloquy with Tate to ensure that his waiver of his right to be

present was knowing and voluntary.

     It is clear that a defendant may waive his right to be present

during a trial.     United States v. Lawrence, 161 F.3d 250 (4th Cir.

1998).     Tate argues, however, that he was not competent to waive

his right to be present due to the effects of the anti-psychotic

drug.    The mere fact that a defendant is taking Mellaril does not

establish that he is incompetent or incapable of understanding or

waiving his constitutional rights.             See Burkett v. Angelone, 208

F.3d 172, 192 (4th Cir. 2000).

     The facts in the record are sufficient to support the state

court’s finding that the waiver was competently made. At the trial

judge’s request, Tate was examined by a psychiatrist the week

before trial to assess his competency to stand trial. The examiner

found Tate to be competent, noting that Tate was “much more

succinct    and   clear      in   his   thinking”   than   when   the    examiner

conducted an evaluation several months before and deemed him


                                         10
competent.      The trial judge observed that Tate was “absolutely”

competent to stand trial.

       In an affidavit, Tate’s trial counsel stated that “when [Tate]

was on his medications he was able to understand what was happening

and to make decisions with some degree of intelligence.”            At the

colloquy during which Tate requested to be excused from a portion

of the trial, Tate’s trial attorney stated that he “ha[d] not found

[Tate] to be irrational or illogical or psychotic or delusional or

anything else in [his] discussions with [Tate] . . . or anything

that suggests . . . that [Tate] was not competent to make a

decision.”      Courts have placed emphasis on the fact that defense

counsel has concluded that a defendant is competent.           Hernandez v.

Ylst, 930 F.2d 714, 718 (9th Cir. 1991)(“While the opinion of

Hernandez’s counsel certainly is not determinative, a defendant’s

counsel    is    in   the   best   position    to   evaluate   a   client’s

comprehension of the proceedings”);           United States v. Clark, 617

F.2d 180, 186 (9th Cir. 1980)(fact that defendant’s attorney

considered defendant competent to stand trial was significant

evidence that defendant was competent).

       Tate was brought back into court on the third day of the

trial.    He reiterated his request to be absent from the courtroom

for the prosecution’s case and was permitted to be absent for the

day.     It is notable that Tate returned to the courtroom for the

fourth and fifth day of trial, and, even though he was still on his


                                     11
medication, there is no hint in the record that he was unable to

remain alert.

     For these reasons, we find no error in the district court’s

dismissal of this claim.



                                IV

     Tate next contends that the State’s administration of his

medication interfered with his right to the effective assistance of

counsel. In essence, Tate claims that due to the administration of

the medication, he was too sleepy to assist his counsel.

     The district court dismissed this claim on exhaustion grounds,

stating as follows:

          In his second claim, Tate alleges that the
     Commonwealth interfered with his right to effective
     assistance of counsel by “involuntarily administering”
     the anti-psychotic drug Mellaril in order to make Tate
     competent to stand trial. Upon reviewing the record, I
     agree with the respondents that Tate did not properly
     present this claim as part of his state habeas
     proceedings, and that this claim is procedurally
     defaulted.
          In order to seek federal habeas review of a state
     court conviction, a petitioner must first exhaust
     available state court remedies.     28 U.S.C. § 2254(b).
     State courts must be “provided a full and fair
     opportunity to review earlier state court proceedings.”
     Whittlesey v. Circuit Court for Baltimore County, 897
     F.2d 143, 145 (4th Cir. 1990).      As the United States
     Court of Appeals for the Fourth Circuit explained in
     Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994)
     (internal citations omitted), “the exhaustion requirement
     demands that the petitioner do more than scatter some
     makeshift needles in the haystack of the state court
     record. The ground relied upon must be presented face-up
     and squarely; the federal question must be plainly
     defined.”

                                12
          Contrary to Tate’s assertions, his second claim was
     not clearly presented as a ground for relief in his state
     habeas petition. While Tate contends that the state
     petition contained sufficient facts to assert a claim of
     state interference with effective assistance of counsel,
     a habeas petitioner “cannot simply apprise the state
     court of the facts underlying a claimed constitutional
     violation.” Id. at 994. Instead, “the petitioner must
     also explain how those alleged events establish a
     violation of his constitutional rights.” Id. It was not
     until Tate filed his response to the respondents’ motion
     to dismiss that he asserted that the Commonwealth
     interfered with his right to effective assistance of
     counsel by administering the Mellaril.      Even if this
     assertion was construed as an additional claim, the claim
     still would not have been properly before the state
     habeas court. A petition, like any other pleading, may
     not be amended without leave of court.      See Virginia
     Sup.Ct. R. 1:8.    Thus, the state habeas court lacked
     jurisdiction to adjudicate any new claim raised by Tate's
     response to the respondents’ motion to dismiss.       See
     Mallory, 27 F.3d at 995.
          Since Tate failed to properly raise his second claim
     in his state habeas petition, the claim is procedurally
     defaulted. If Tate now attempted to raise the claim, it
     would be barred by Virginia Code § 8.01-654(B)(2). As a
     result, the court may not review the claim unless Tate
     demonstrates “cause for, and resulting prejudice from,
     the default or that he has suffered a fundamental
     miscarriage of justice.” Fisher v. Angelone, 163 F.3d
     835, 852 (4th Cir. 1998). Since Tate has not made either
     showing, his second claim must be dismissed.

Tate v. True, 2006 WL 208588, *4 (W.D. Va. January 26, 2006).

     Having conducted a thorough and independent review of the

record in this case, we agree with the district judge’s reasoning

and conclusion.   As such, we find no error in his dismissal of this

claim.




                                 13
                                          V

     Finally, Tate contends that his counsel was ineffective in (1)

failing to object to trial proceedings in Tate’s absence; (2)

failing to raise any objection to the trial proceeding while Tate’s

faculties were seriously affected by his medication; (3) refusing

an   on-the-spot    psychological         review;      and    (4)    treating    the

medication issue as he did.

     As   noted    by    the   district       court,   the   state   habeas     court

determined that Tate’s allegations failed to satisfy the test set

forth in Strickland v. Washington, 466 U.S. 668 (1984).                  The state

habeas    court   noted    that   it   was     unclear   how   Tate    would     have

benefitted from another psychiatric evaluation at trial, since he

was taking his anti-psychotic medication and since he had recently

been found competent to stand trial.              The court also noted that it

was unclear how Tate would have benefitted from a motion for a

continuance or mistrial. Rather, it determined that a mistrial was

not in order, since the trial court extensively questioned Tate

before permitting him to remain outside of the courtroom, in an

attempt to determine whether Tate was voluntarily and knowingly

waiving his right to be present at trial.               Additionally, the state

habeas court emphasized that Tate’s trial counsel was able to

communicate with him and that Tate’s trial counsel did not question

his competency.         In an affidavit submitted to the state habeas

court, Tate’s trial counsel stated that he believed Tate understood


                                        14
what was happening at trial, and that there was never a time when

counsel needed to consult with Tate during his absence.               Tate’s

counsel also stated that his client was “largely indifferent” when

he spoke with Tate each night about the evidence presented during

trial.    Counsel explained that Tate’s decision to remain in his

cell made sense at the time, since counsel could explain to the

jury that the medication caused Tate’s sleepiness.

     The district court concluded that the state habeas court’s

decision did not involve an unreasonable application of federal law

or an unreasonable determination of the facts and dismissed this

claim.    The record demonstrates that Tate was competent to stand

trial, and that he knowingly and voluntarily waived his right to be

present at trial and confront witnesses.             Consequently, Tate’s

trial    counsel   was   not   ineffective   for   failing   to   request   an

additional competency evaluation, move for a mistrial, or object to

the trial proceeding in Tate’s absence. Accordingly, we find no

error in the dismissal of this claim.



                                                                    AFFIRMED




                                     15
