                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-7553



BRIAN DAMON FARABEE,

                                               Petitioner - Appellant,

           versus


GENE M. JOHNSON, Director      of   the   Virginia
Department of Corrections,

                                                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CA-02-960-2)


Argued:   October 26, 2004                    Decided:   April 22, 2005


Before WIDENER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.      Judge Gregory wrote a
dissenting opinion.


ARGUED: Brad Richard Newberg, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellant.    Michael Thomas Judge, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.    ON BRIEF: Jerry W. Kilgore, Attorney
General of Virginia, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Brian Damon Farabee filed a petition for writ of habeas corpus

under 28 U.S.C. § 2254, challenging his conviction and sentence on

the grounds that (1) the prosecutor failed to disclose evidence

favorable to him, (2) his prosecution violated his protection

against double jeopardy, and (3) he had been found not guilty by

reason of insanity in a prior proceeding and thus could not be

prosecuted under Virginia law.        The district court ruled that

Farabee’s claims were procedurally defaulted and dismissed the

petition.   A judge of this Court granted Farabee a certificate of

appealability to present the question whether Farabee’s mental

illness should excuse his procedural defaults.     We conclude that

Farabee cannot demonstrate that his defaults actually resulted from

his mental illness, and we therefore affirm the ruling of the

district court.



                                 I.

     Farabee has suffered from psychiatric problems since childhood

and first entered a psychiatric institution at the age of ten.

Over the last fifteen years, Farabee has received treatment in more

than twenty mental institutions. In November 1998, while a patient

at Eastern State Hospital, Farabee set fire to his bed sheets in a

suicide attempt. The Commonwealth of Virginia charged Farabee with

arson. In July 1999, after a psychiatric evaluation concluded that


                                 2
Farabee was mentally ill at the time of the arson, the state court

adjudged    Farabee    not    guilty      by    reason      of    insanity    (“NGRI”).

Pursuant to Va. Code Ann. § 19.2-182.3 (Michie 2004), the court

then ordered Farabee committed to Central State Hospital.1

      Under    Virginia      law,   the     court     that       orders   a   defendant

committed to a state mental hospital must hold a hearing twelve

months after the date of commitment to determine whether the

defendant continues to need inpatient hospitalization. Id. § 19.2-

182.5.     Based upon a psychiatric evaluation and any other evidence

presented at the hearing, the state court must (i) release the

acquitee      from   confinement       if       he   does    not     need     inpatient

hospitalization and does not meet the criteria for conditional



      1
      Under § 19.2-182.3, a trial court must commit a defendant
acquitted as NGRI if it finds that the defendant is mentally ill
and in need of hospitalization. This statute further provides that
“[t]he decision of the court shall be based upon consideration of
the following factors:

      1.      To what extent the acquitee is mentally ill or
              mentally retarded, as those terms are defined in
              § 37.1-1;

      2.      The likelihood that the acquitee will engage in
              conduct presenting a substantial risk of bodily
              harm to other persons or to himself in the
              foreseeable future;

      3.      The likelihood that the acquitee can be adequately
              controlled with supervision and treatment on an
              outpatient basis; and

      4.      Such other factors as the court deems relevant.”

Id.

                                            3
release . . . ; (ii) place the acquitee on conditional release if

he meets the criteria for conditional release, and the court has

approved a conditional release plan . . . ; or (iii) order that he

remain in the custody of the Commissioner [of the Department of

Mental Health, Mental Retardation, and Substance Abuse Services] if

he   continues   to   require   inpatient   hospitalization   based   on

consideration of the factors set forth in § 19.2-182.3.”       Va. Code

Ann. § 19.2-182.5(C).     Pursuant to this statute, the state court

that committed Farabee to Central State Hospital scheduled a

hearing for July 2000 to assess his condition, and after this

hearing Farabee remained in the custody of Central State Hospital.2

     In the spring of 2000, Farabee was involved in physical

altercations with hospital staff at Central State Hospital.           The

Commonwealth charged Farabee with two counts of malicious wounding,

and on August 25, 2000, Farabee, with the assistance of counsel,

pled guilty to these charges.     In the course of his plea colloquy,

Farabee stated that he understood the nature of the charges against

him and that he was satisfied with the efforts of his counsel.        The

prosecutor noted that Farabee had been adjudged NGRI in connection


     2
      The dissent cites the petitioner’s briefs to support its
assertion that the judge on Virginia’s Ninth Judicial Circuit Court
who initially committed Farabee for the arson charge “found that
Farabee was still mentally ill.” Post, at 14. Although Farabee
requested permission to supplement the record with a document
purporting to establish this “fact,” that request was denied.
Further, the state has not had the opportunity to challenge
Farabee’s assertion. We limit our recitation of the facts to those
actually contained in the record.

                                    4
with the 1998 arson charge but that there was no issue concerning

his competency to stand trial.           J.A. 46.         According to Farabee’s

counsel, a sanity evaluation had concluded that there was “not a

problem    with    [Farabee’s]      sanity”   at    the    time   of    the    instant

offenses.       J.A. 46-47.    A Virginia state court accepted Farabee’s

plea, specifically finding that Farabee “underst[ood] the nature of

the charges and the consequences of [his] plea[].”                     J.A. 48.   The

court then sentenced Farabee to consecutive twenty-year prison

terms but adjusted that sentence so that Farabee was required to

serve only three years and four months in prison.                 Farabee did not

appeal    his    conviction    or    sentence      on    the   malicious      wounding

charges.

     Two years later, on August 8, 2002, Farabee filed his initial

petition    for    writ   of   habeas   corpus      in    Virginia     state   court.

Farabee argued that his conviction for malicious wounding was

unlawful because he had previously been adjudged NGRI and under

Virginia law, he could not be prosecuted for any offense while

maintaining that status.         Farabee requested an evidentiary hearing

on this claim.        The court dismissed Farabee’s petition on the

ground that the claim asserted had not been presented to the trial

court or on direct appeal.          See Slayton v. Parrigan, 205 S.E.2d 680

(Va. 1974).       Farabee did not appeal the dismissal of this initial

state habeas petition.




                                         5
     On November 15, 2002, Farabee filed a second state habeas

petition.   In addition to the NGRI claim, Farabee alleged in this

petition that his conviction was unlawful because the prosecutor

failed to disclose information favorable to him and his prosecution

violated his protection against double jeopardy.         Again, Farabee

requested   an   evidentiary   hearing.    The   court   dismissed   this

petition on the grounds that it was untimely and successive under

Virginia law.    Farabee did not appeal this dismissal.

     In December 2002 -- while his second state habeas petition was

still pending -- Farabee commenced this federal habeas action under

§ 2254, attacking his conviction on the same grounds he asserted in

state court. The magistrate judge recommended that the petition be

dismissed because Farabee’s claims were procedurally defaulted.

Specifically, the magistrate judge noted Farabee’s (1) failure to

file a direct appeal of his conviction in state court, (2) failure

to appeal the dismissals of his state habeas petitions, and (3)

failure to file a separate habeas petition with the Virginia

Supreme Court.    Notwithstanding Farabee’s objections, the district

court adopted the magistrate judge’s recommendation and dismissed

Farabee’s habeas petition.     Farabee appealed this ruling and filed

an informal brief in this court.       A judge of this Court granted a

certificate of appealability on the question whether Farabee’s

mental illness should excuse his procedural defaults.




                                   6
                                     II.

      A petitioner in state custody seeking federal habeas relief

must exhaust all remedies available in state courts.             28 U.S.C. §

2254(b)(1)(A).     To satisfy this exhaustion requirement and avoid

procedural default, a petitioner “must give the state courts one

full opportunity to resolve any constitutional issues by invoking

one complete round of the State's established appellate review

process.”     O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

      To overcome a procedural default in a habeas proceeding, the

petitioner must show “cause for the default and actual prejudice as

a result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 749-50

(1991).   The Supreme Court has stated that “cause for a procedural

default must ordinarily turn on whether the prisoner can show that

some objective factor external to the defense impeded [his] efforts

to comply with the State’s procedural rule.”            Murray v. Carrier,

477 U.S. 478, 488 (1986).       Examples of such external impediments

include   a   factual   or   legal   basis   for   a   claim   that   was   not

reasonably available, interference with the defense by government

officials, or constitutionally ineffective assistance of counsel.

Id.   To establish actual prejudice, the petitioner “must show not

merely that the errors . . . created a possibility of prejudice,

but that they worked to his actual and substantial disadvantage,


                                      7
infecting his entire [proceeding] with error of constitutional

dimensions.” Id. at 494. (internal quotations and emphasis omitted).

     Assuming that profound mental illness may constitute cause to

excuse a procedural default in certain circumstances, see Thomas v.

Cunningham, 313 F.2d 934, 937 (4th Cir. 1963); cf. United States v.

Sosa,   364   F.3d    507,   512     (4th    Cir.     2004),    Farabee     has    not

demonstrated that any mental illness actually caused his procedural

defaults.     Although Farabee points to facts suggesting that he

suffered    from    mental   illness    at        particular    points     after   his

conviction,    those    facts   do    not        establish   that    his   condition

rendered him unable to exhaust his state court remedies during the

appropriate periods.

     First,        Farabee   points         to     the   fact       that    he     was

institutionalized from September 2000 to November 2000, the period

during which he was required to file a direct appeal from his

conviction.    According to Farabee, this fact is “direct evidence”

of his “mental incompetence at the time he was supposed to be

appealing his conviction.” Appellant’s Br. at 10-11. We disagree.

Although it is certainly true that Farabee was institutionalized

during the relevant period, that fact alone does not establish

Farabee’s mental condition or describe his capacity to comply with

procedural requirements in state habeas litigation.                  Indeed, under

Virginia law, it is entirely possible that Farabee remained in the

custody of Central State Hospital simply because he continued to


                                        8
require inpatient hospitalization based on the likelihood that he

would engage in conduct posing a risk of injury to himself or

others.   See Va. Code Ann. § 19.2-182.5(C).3   Moreover, the record

shows that Farabee was examined and found to be both sane at the

time of the malicious wounding offenses -- in the spring of 2000 --

and competent to stand trial in August 2000.4    Given the fact that

Farabee was institutionalized during those periods as well, the

dissent’s claim that the fact of institutionalization establishes

cause for a procedural default is simply untenable.

     Second, Farabee points to the fact that on March 14, 2001 --

during the time in which he should have been preparing a separate

habeas petition for the Supreme Court of Virginia -- he attempted

suicide by lacerating his arms and eating glass and batteries.   At

most, this fact establishes that Farabee was in no condition to

prepare or file the petition on that date or in the several days

before and after that date.   Farabee had two years from the date of


     3
      It is simply not the case, as the dissent suggests, that a
person committed to a mental hospital in Virginia must remain
insane throughout the duration of his commitment.       Given the
specific provisions of § 19.2-182.3, the mere fact of continued
commitment does not establish the nature or characteristics of the
individual’s particular condition, much less his ability to
understand and appreciate the requirements of state and federal
habeas litigation.
     4
      During Farabee’s August 2000 guilty plea proceedings, his
trial counsel represented to the court that “there is not a problem
with the sanity,” J.A. 46, and further stated that he had “a sanity
evaluation that says there wasn’t a problem with the sanity at the
time of these offenses,” J.A. 47, i.e., while Farabee was committed
to Central State Hospital.

                                  9
his conviction to file a habeas petition with the state supreme

court, and evidence of his condition on one particular day does not

establish that he was unable to prepare and file that petition

throughout the two-year period allowed by law.

       Other evidence suggests that Farabee was able to prosecute his

state appeals.         A Virginia court found Farabee competent prior to

the entry of his guilty plea, even after the prosecutor alerted the

court to the fact that Farabee had been adjudged NGRI in a prior

proceeding.       That court made a specific finding that Farabee

“underst[ood] the nature of the charges and the consequences of

[his] plea[].”          In his initial state habeas petition, Farabee

challenged the lawfulness of his detention in a Department of

Corrections facility in light of his NGRI status.               According to

Farabee, he could only be detained in a state mental health

facility.       Farabee further noted that he had asserted similar

claims in a civil rights complaint under 42 U.S.C. § 1983.                In

connection      with    this   initial   state   habeas   petition,   Farabee

specifically requested a “plenary hearing.” J.A. 73. Farabee then

filed a second state habeas petition, asserting in addition to the

NGRI    claim    two     federal   constitutional     claims.      Farabee’s

allegations made specific reference to relevant Virginia statues

and federal constitutional provisions, and he offered reasons why

these claims were not offered in his first petition.            Farabee also

requested an evidentiary hearing in connection with this state


                                         10
habeas action.     In sum, it is clear from the record that during the

periods when Farabee was required to file a direct appeal, prepare

a petition for the state supreme court, and appeal the dismissal of

his initial habeas petition, he was able to prosecute his state

habeas actions in important respects.

      Moreover,    Farabee’s    conduct    of    this   federal   litigation

suggests that he was competent to participate in habeas proceedings

during the period when he should have appealed the dismissal of his

second state habeas petition. Farabee filed his § 2254 petition in

December 2002, before the state court dismissed his second state

habeas    petition.       In   the   district    court,   Farabee   filed   a

substantive    §   2254    petition    alleging    various   constitutional

violations in terms and with a degree of specificity indicating

careful preparation by a prison inmate.           He also filed objections

to the magistrate judge’s report and recommendation and upon the

district court’s dismissal of the petition initiated this appeal

and filed an informal brief.          All of this evidence suggests that

Farabee’s condition was not uniform over time and that there were

times when he was able to prosecute this litigation.              Given this

evidence, we conclude that Farabee has failed to demonstrate that

any   mental   illness     actually     caused    his   several   procedural

defaults.5


      5
      Because we find that Farabee cannot demonstrate cause to
excuse his defaults, we need not consider the question whether he
can demonstrate actual prejudice.

                                      11
     The dissent wonders what more we require from Farabee.                We

require    nothing   more   than   a   showing   that   his   mental   illness

actually caused his procedural defaults.           It is not enough for a

petitioner to show that there existed at the time of his procedural

defaults certain conditions external to the defense; the petitioner

must show that those external conditions actually “impeded [his]

efforts to comply” with procedural requirements and thus caused his

default.     Murray, 477 U.S. at 488.            Farabee has presented no

evidence    establishing,    for   instance,     that   his   mental   illness

interfered with his ability to appreciate his litigation position

or to make rational decisions concerning the litigation during the

entirety of the relevant time periods, see Holt v. Bowersox, 191

F.3d 970, 974 (8th Cir. 1999), so that he was unable to consult

with counsel, file pleadings, or otherwise comply with state

procedural requirements, see Malone v. Vasquez, 138 F.3d 711, 719

(8th Cir. 1998); see also Smith v. Newsome, 876 F.2d 1461, 1465

(11th Cir. 1989) (assuming that “a pro se habeas petitioner who

lacked the mental capacity to understand the nature and object of

habeas proceedings and to present his case for habeas relief in a

rational manner” could establish cause to excuse a procedural

default).    In the absence of such evidence, and considering the

fact that Farabee was able, despite his mental illness, to comply

with certain procedural requirements in habeas litigation, we

cannot say that the district court erred when it ruled that Farabee


                                       12
had   not   demonstrated   cause   to    excuse   his   several   procedural

defaults.



                                   III.

      Farabee has asserted that his mental illness constitutes cause

to excuse his several procedural defaults, but he has failed to

offer any evidence to connect his mental state to those defaults.

Because Farabee has not shown that any mental illness actually

caused his failure to exhaust available state court remedies, we

affirm the district court’s dismissal of Farabee’s habeas petition.



                                                                    AFFIRMED




                                    13
GREGORY, Circuit Judge, dissenting:

     Because Farabee has provided sufficient evidence of his mental

incapacity, I respectfully dissent.     As the majority recognizes,

Farabee has been in and out of mental institutions –- mostly in --

since he was ten.    Indeed, he was institutionalized when he (1)

committed the offense for which he was convicted, (2) pleaded

guilty, and (3) should have prepared and filed his direct appeal.

On July 21, 1999, Judge Samuel T. Powell of Virginia’s Ninth

Judicial Circuit Court found Farabee Not Guilty by Reason of

Insanity.   J.A. 28-29.   This Order explicitly holds that Farabee

“remains under the jurisdiction of this court and shall not be

released from custody and inpatient hospitalization without further

Order of the court.”      J.A. 29.    As Virginia admitted at oral

argument, this order has not been lifted.     Rather, shortly before

his plea hearing, Judge Powell apparently found that Farabee was

still mentally ill and will remain committed after serving his jail

sentence.   See   Appellant’s Br. at 4, 11 n.4; Reply Br. at 3, 12.1

Throughout his commitment Farabee was given powerful anti-psychotic

drugs with serious side effects.2     Moreover, during the time when

Farabee should have prepared his subsequent legal papers, he was


     1
      The majority notes that Judge Powell’s 2000 order is not in
the record. Ante at n.2. Yet given the plainly quoted language of
the July 21, 1999 order, Virginia squarely shoulders the burden of
showing that the order of mental illness has been lifted. It has
not, of course, shown this.
     2
      Despite knowing that Farabee was a mental patient, the
sentencing judge never once inquired about Farabee’s medications
nor noticed the Ninth Judicial Circuit’s recent decision to
continue Farabee’s commitment. See J.A. 39-51.

                                 14
sent to the prison’s psychiatric unit because he attempted suicide

by eating glass and batteries and slitting his wrists.

      I do not know what more the majority wants from Mr. Farabee.

The majority concedes that mental incapacity may constitute cause

to   excuse   procedural    default.        Ante   at    8   (citing      Thomas   v.

Cunningham, 313 F.2d 934, 937 (4th Cir. 1963) and United States v.

Sosa, 364 F.3d 507, 512 (4th cir. 2004)).               The majority, however,

finds that “Farabee has not demonstrated that any mental illness

actually    caused   his   procedural       defaults.”       Id.      I   disagree.

Farabee’s     procedural   problems     all    arise     from   his    failure     to

directly appeal his sentence.         But during the time he had to file

this appeal he was committed to Central State Hospital.                   Thus, the

majority would have us believe Virginia’s extraordinary proposition

that a person it deems of insufficiently sound mind to live outside

of a mental institution or, for example, transfer title in land, is

simultaneously sane enough to properly prosecute appeals.3

      Next, the majority concludes that Mr. Farabee’s most recent

suicide attempt “[a]t most . . . establishes that Farabee was in no



      3
      In the majority’s words, the claim is that Farabee could have
been kept committed simply because of the possibility that “he
would engage in conduct posing a risk of injury to himself or
others.” Ante at 8. But a prisoner’s showing of adjudged insanity
or involuntary commitment should at least set a strong, but perhaps
rebuttable, presumption of “profound mental incapacity.”       This
would again shift the burden to the state –- plainly in a better
position than a mental patient –- to establish that its ward was
somehow simultaneously competent to prosecute appeals but too
mentally ill to circulate with society.

                                       15
condition to prepare or file the petition on that date or in the

several days before and after that date.”                   Id. at 9.      This, of

course, discounts the baseline fact that before, during, and

apparently after his suicide attempt Farabee was adjudicated too

mentally ill to warrant punishment by a Virginia Circuit Court

judge.      The    majority’s    final     argument    is    that    Farabee   could

prosecute his appeals “in important respects.”                 Ante at 11.       But

this is textbook bootstrapping:             I fail to see why the fact that

Farabee filed some procedurally improper briefs counts as evidence

that he was sane enough to not excuse filing other procedurally

improper briefs.

     Virginia cannot be allowed to have it both ways:                      it cannot

keep a man committed and simultaneously claim that he is perfectly

competent to timely represent himself in appellate proceedings

within their courts.         Such overreaching is simply a symptom of the

sad conflation of prison and involuntary commitment for treatment

of   mental   illness.          Virginia      essentially     keeps    Farabee      in

inescapable       no-man’s   land,   calling     him   too    sane    to   excuse    a

procedural error but not sane enough to live outside a mental

hospital.     I can only conclude that such an approach violates

Farabee’s due process rights.            Accordingly, I dissent.




                                         16
