UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
2

Unpublished opinions are not binding precedent in this circuit.
3

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
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

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. 
5

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.
6

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,
7

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
8

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
9

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).
10

III

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

present at trial by the State’s administration of the antipsychotic 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
11

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
12

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.”
13

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.
14

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
15

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