UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6358


MACEO SPATES,

                Petitioner - Appellee,

           v.

HAROLD W. CLARKE, Director, VA Dept. of Corrections,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cv-00284-RAJ-TEM)


Argued:   October 29, 2013                 Decided:   December 4, 2013


Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant.      Neal Lawrence
Walters, SCOTT KRONER, PLC, Charlottesville, Virginia, for
Appellee. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General
of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Harold W. Clarke, as Director of the Virginia Department of

Corrections        (hereinafter        the        “Commonwealth”),     appeals   the

district court’s decision granting Maceo Ali Spates’s petition

for a writ of habeas corpus filed under 28 U.S.C. § 2254, on the

ground that Spates did not knowingly and intelligently waive his

Sixth Amendment right to counsel.                   Because the Virginia court’s

rejection of Spates’s constitutional claim was neither contrary

to    nor    an    unreasonable        application      of   clearly    established

federal law, as determined by the United States Supreme Court,

we reverse the district court’s decision and deny habeas relief. 1

                                             I.

                                             A.

       In October 2005, Spates was arrested and ultimately charged

in the Commonwealth of Virginia with abduction, see Va. Code

§ 18.2-47;        rape,   see    Va.    Code       § 18.2-61;   unlawful   wounding

during the commission of a felony, see Va. Code § 18.2-53; petit

larceny, see Va. Code § 18.2-96; armed statutory burglary, see

Va. Code § 18.2-90; and entering private property while wearing

a    mask,   see    Va.   Code    §    18.2-422.        He   was   provided   court-

appointed counsel.         Due to the unavailability of witnesses, the


       1
       The district court previously granted the Commonwealth’s
motion for a stay pending appeal.



                                             2
case    was    continued    on     at   least       two    occasions    to    June    2006.

Spates        thereafter        requested         two     additional        continuances,

resulting in the scheduling of what was to be a non-jury trial

for    December    5,   2006.       The       day    before    the   scheduled       trial,

however,       Spates      demanded       a       jury     trial,     forcing     another

continuance until February 12, 2007, in order to empanel a jury.

       On February 12, 2007, with the jury and witnesses present,

Spates     appeared       and     asserted        his     constitutional        right   to

discharge       counsel     and    represent            himself.      See    Faretta    v.

California, 

(1975).                    Spates’s counsel also appeared

and moved to withdraw from representation in accordance with her

client’s wishes.           Following a brief recess to allow Spates to

consult       further   with      counsel      regarding       his   decision,       Spates

pressed    his    motion    to     proceed        pro    se   with   appointed    counsel

acting as standby counsel instead.                      The trial judge granted the

motions and, reluctantly, another continuance to allow Spates to

prepare for trial.              A pre-trial motions hearing was set for

April 23, 2007, and the jury trial for May 7, 2007.

       On April 23, 2007, Spates appeared as scheduled.                           At that

time, a written “Waiver of Right to be Represented by a Lawyer”

(the “Waiver”) was executed by Spates and certified by the trial

judge.     J.A. 24.        Among other things, Spates confirmed that he

had “been advised by [the] judge . . . of the nature of the

charges in the cases pending against [him] and the potential

                                              3
punishment     for    the    offenses,”      and    that    he    “underst[oo]d      the

nature of these charges and the potential punishment for them if

[he was] found guilty.”             J.A. 24.           Spates further represented

that he understood “the manner in which a lawyer can be of

assistance” and that “in proceeding without a lawyer, [he] may

be confronted with complicated legal issues.”                         J.A. 24.   Spates

confirmed his election to waive counsel as follows:

           Understanding my rights to be represented by a
      lawyer as described above and further understanding
      the nature of the case and the potential punishment if
      I am found to be guilty, I waive all of my rights to
      be represented by a lawyer in these cases, with the
      further understanding that the cases will be tried
      without a lawyer either being hired by me or being
      appointed by the judge for me.    I waive these rights
      of my own choice, voluntarily, of my own free will,
      without any threats, promises, force or coercion.

J.A. 24.       The trial judge also signed the Waiver, certifying

that “[u]pon oral examination, [the court] finds that [Spates],

having been advised of the rights and matters stated above and

having   understood         these   rights       and     matters,      thereafter   has

knowingly, voluntarily and intelligently waived his rights to be

represented by a lawyer.”           J.A. 24.

      On May 7, 2007, the case was called for trial as scheduled,

but   before    a    different      trial       judge.      Spates      appeared    with

standby counsel.        The witnesses and the jury were again present

and   ready    to    proceed.       At   the     inception       of   the   proceeding,

however, Spates claimed to have recently “found and retained


                                            4
counsel” who “was supposed to show up” but was not present.

J.A. 28.       Spates acknowledged that he had elected to proceed pro

se and that he had executed the Waiver, but he argued that he

did not understand the procedures and was not prepared.                         Spates

also repudiated the written representations he had made in the

Waiver.       He denied that the previous trial judge had gone “over

all of the ramifications [of self-representation] with [him],”

as reflected in the Waiver, and claimed that he “didn’t know

that [he] was signing the waiver to represent [himself].”                         J.A.

51-52.       The presiding trial judge informed Spates that new trial

counsel       would    be   allowed    to    take     over    representation     if   he

appeared, but denied Spates’s request for another continuance as

at least fifteen witnesses were present and prepared to proceed,

in addition to the jurors, attorneys, and staff.                      No new counsel

ever       appeared,   and    the    trial   proceeded.         Spates    represented

himself with standby counsel available.                       At the conclusion of

the    trial,    Spates      was    convicted    of    four    of   the   six   charges

against him, 2 and he was sentenced to a total of thirty-four

years imprisonment.




       2
       Spates was acquitted of the charges of armed statutory
burglary, see Va. Code § 18.2-90, and entering private property
while wearing a mask, see Va. Code § 18.2-422.



                                             5
                                       B.
       After trial, Spates’s standby counsel was reappointed to

represent him on direct appeal.              Spates claimed that the trial

court violated his Sixth Amendment right to counsel by denying

him counsel on the day of trial.              Spates also claimed that he

did not knowingly and intelligently waive his right to counsel

prior to the trial.         The Virginia Court of Appeals rejected both

claims and affirmed.          Noting that the right to counsel is not

without limitations, nor “a right subject to endless abuse by a

defendant,” J.A. 73-74 (internal quotation marks omitted), the

court first rejected Spates’s claim that the trial judge denied

him counsel, as follows:

            Appellant affirmatively waived his right to
       counsel as evinced by the waiver form he signed two
       weeks before trial.   By waiting until the morning of
       trial to announce he no longer wanted to represent
       himself, appellant attempted to unreasonably and
       unjustifiably delay the trial, which previously had
       been continued.    We find no error with the trial
       court’s denial of appellant’s continuance motion based
       upon his initial waiver of his right to counsel
       combined with his last minute attempt to delay the
       trial.

J.A.    74   (emphasis     added).    The    court    also   rejected   Spates’s

claim    that   he   did   not   knowingly    and    intelligently   waive   his

right to counsel prior to trial, as follows:

            At  a   February    12,  2007  hearing,  appellant
       requested to relieve his court-appointed counsel and
       proceed pro se. On April 23, 2007, appellant signed a
       waiver form waiving his right to be represented by
       counsel at trial.     The form indicates appellant was
       advised of the charges against him, of the potential
                                       6
       punishment   he  faced,    and   of   his  right   to   be
       represented by counsel. Appellant waived these rights
       “of [his] own choice, voluntarily, of [his] own free
       will,   without   any   threats,    promises,   force   or
       coercion.”   The judge also signed the form indicating
       appellant was subject to oral examination and was
       advised of his rights, understood his rights, and
       “knowingly, voluntarily and intelligently waived his
       rights to be represented by a lawyer.”        Accordingly,
       the record includes ample evidence that appellant
       freely and voluntarily waived his right to be
       represented by counsel at trial.

J.A.   74-75.       The       Supreme   Court      of   Virginia   refused     Spates’s

petition for further appeal. 3

                                             C.

       Spates thereafter filed this petition for a writ of habeas

corpus     under    28    U.S.C.     § 2254,       asserting     that   the    Virginia

court’s rejection of his claim that he did not knowingly and

intelligently       waive      his   right    to    counsel    prior    to    trial   was

contrary    to     or    an    unreasonable        application     of   Supreme   Court

precedent. 4




       3
       Although Spates did not timely file an appeal to the
Supreme Court of Virginia, he was later granted, through
Virginia post-conviction proceedings, leave to file a belated
appeal. Spates also filed a second petition for post-conviction
relief based on his Sixth Amendment claims, but the claims were
dismissed as procedurally barred because they had already been
decided on the merits in the direct appeal.
       4
       Spates did not pursue his claim that the trial judge
violated his Sixth Amendment right to counsel by refusing to
continue the trial and either reappoint counsel or wait for
retained counsel to enter an appearance.



                                             7
      For reasons that remain unclear, the district court ordered

the   Commonwealth       to    have     a    transcript         from    the    February      12,

2007,    hearing       prepared       and    submitted          for    inclusion      in     the

federal habeas court record, but did not order preparation of

the   transcript       from     the     April         23,    2007,     hearing.       Neither

transcript had been prepared or submitted by either party to the

Virginia      Court    of     Appeals       in    connection         with    its    review    of

Spates’s constitutional claim, nor did the Virginia Court of

Appeals order production of either transcript on its own accord.

      Relying     almost       exclusively            upon    the     February      12,    2007,

transcript and Spates’s attempt to revoke his waiver on May 7,

2007, the district court granted habeas relief and ordered that

Spates be retried or released from custody.                                 The court found

that the trial judge’s colloquy with Spates on February 12 was

constitutionally inadequate to ensure that Spates had waived his

right    to   counsel       knowingly        and      intelligently,          and   that     the

Virginia      Court     of     Appeals           decision      to      the    contrary       was

unreasonable.         This appeal followed.

                                             II.

                                                 A.

        Under 28 U.S.C. § 2254(d), as revised by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), our review of

the Virginia court’s decision rejecting Spates’s Sixth Amendment

waiver claim is highly deferential.                          Where, as here, a federal

                                                 8
habeas petitioner’s constitutional claim has been “adjudicated

on the merits in State court proceedings,” we may not grant

relief      unless      the     state   court’s         adjudication        “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), or “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); see also Harrington v. Richter, 

,

785   (2011).           We    must    presume          the   correctness         of    the      state

court’s      factual          findings,       unless          rebutted      by        clear       and

convincing evidence.             See 28 U.S.C. § 2254(e)(1).

      “The question under AEDPA is not whether a federal court

believes      the       state    court’s       determination          was    incorrect            but

whether that determination was unreasonable – a substantially

higher      threshold.”          Schriro      v.       Landrigan,     

,   473

(2007);      see    also      Harrington,      131       S.     Ct.   at   785.            “A    state

court’s determination that a claim lacks merit precludes federal

habeas relief so long as ‘fairminded jurists could disagree’ on

the correctness of the state court’s decision.”                             

(quoting Yarborough v. Alvarado, 

, 664

(2004)).



                                                   9
                                             B.

      The      Sixth     Amendment      guarantees      criminal         defendants      the

assistance of counsel during all critical stages of the criminal

justice      process,     as    well    as   the     implied       inverse      right    “to

proceed      without     counsel     when    [the     defendant]        voluntarily      and

intelligently elects to do so.”                   

.              The

“defendant need not himself have the skill and experience of a

lawyer in order competently and intelligently to choose self-

representation.”          

        Nonetheless, “he should be made

aware of the dangers and disadvantages of self-representation,

so that the record will establish that he knows what he is doing

and his choice is made with eyes open.”                       

(internal

quotation marks omitted).

      The      Supreme    Court,       however,     has     never       “prescribed      any

formula or script to be read to a defendant who states that he

elects to proceed without counsel.”                   Iowa v. Tovar, 

,

88 (2004).       Rather, “[t]he information a defendant must possess

in order to make an intelligent election . . . will depend on a

range     of    case-specific          factors,      including          the    defendant’s

education       or     sophistication,       the    complex        or    easily    grasped

nature of the charge, and the stage of the proceeding.”                                  Id.;

see   also     Johnson     v.    Zerbst,     

,    464       (1938)   (“The

determination of whether there has been an intelligent waiver of

the   right     to     counsel     must     depend,    in    each       case,     upon   the

                                             10
particular        facts          and   circumstances          surrounding          that        case,

including        the    background,           experience,        and       conduct        of    the

accused.”); United States v. Gallop, 

, 109 (4th Cir.

1988) (“While the Faretta Court recognized the absolute right of

a defendant to represent himself as long as that decision is

made knowingly, intelligently, and voluntarily, it did not lay

down   detailed         guidelines          concerning        what    tests      or    lines     of

inquiry     a    trial       judge     is    required      to    conduct         to    determine

whether         the         defendant’s           decision           was        ‘knowing        and

intelligent.’”).             In the context of a guilty plea, for example,

the Court has held that “[t]he constitutional requirement is

satisfied when the trial court informs the accused of the nature

of    the   charges         against      him,     of    his    right       to    be    counseled

regarding his plea, and of the range of allowable punishments

attendant upon the entry of a guilty plea.”                            

.    “As to waiver of trial counsel,” the defendant “must be

warned specifically of the hazard ahead.”                              

see

also Patterson v. Illinois, 

, 298 (1988) (noting

that   because         of    “the      enormous      importance        and      role    that     an

attorney        plays       at     a   criminal        trial,”       the     “most     rigorous

restrictions”          are       imposed    “on      the   information          that    must     be

conveyed to the defendant . . . before permitting him to waive

his right to counsel.”).



                                                11
     Finally,     because    Faretta      sets    forth   a     general    rule

governing such waivers of counsel, we must remain particularly

mindful of the leeway state courts have in applying the Faretta

rule.     “‘[T]he more general the rule’ at issue – and thus the

greater    the   potential   for   reasoned      disagreement    among    fair-

minded judges – ‘the more leeway state courts have in reaching

outcomes in case-by-case determinations.’”            Renico v. Lett, 

, 776 (2010) (alteration omitted) (quoting 

); see also 

.                   For

similar reasons, a federal habeas court’s reliance upon circuit

court precedent interpreting or expanding such a general Supreme

Court rules is severely constrained.             See Marshall v. Rodgers,

, 1450 (2013).

     Although an appellate panel may, in accordance with
     its usual law-of-the-circuit procedures, look to
     circuit precedent to ascertain whether it has already
     held that the particular point in issue is clearly
     established by Supreme Court precedent, it may not
     canvass circuit decisions to determine whether a
     particular rule of law is so widely accepted among the
     Federal Circuits that it would, if presented to this
     Court, be accepted as correct.

(citations omitted); see also Parker v. Matthews,

, 2155-56 (2012) (“[C]ircuit precedent does not

constitute ‘clearly established Federal law, as determined by

the Supreme Court,” and “therefore cannot form the basis for

habeas relief under AEDPA.”).        We are not at liberty to upset a

state court adjudication on a constitutional claim based upon

                                     12
requirements that we might recommend to or even impose upon our

own district courts, so long as the state court’s application of

the   general   rule    was       a    reasonable     one     in     light   of    the

controlling Supreme Court mandate.

      Applying these principles to the case before us, we have no

trouble   concluding        that       the      Virginia     Court    of     Appeals’

adjudication    of   Spates’s         Sixth      Amendment    waiver       claim   was

neither   contrary     to   nor       an   unreasonable      application      of   the

controlling Supreme Court precedent, and that the district court

erred in relying upon circuit precedent to conclude otherwise. 5

      5
       We note the Commonwealth’s objection to the district
court’s decision to supplement the record on federal habeas
review with a transcript that was not submitted to the Virginia
court for its consideration on appeal and, in light of the
Supreme Court’s decision in Cullen v. Pinholster, 

(2011), we share the Commonwealth’s concern.      As Spates
points out, Cullen involved mitigation evidence that was first
created in a federal evidentiary hearing, whereas the February
12 transcript could have been (but was not) submitted to the
Virginia Court of Appeals.    Nevertheless, the district court’s
consideration of the February 12 transcript did in fact result
in precisely what AEDPA seeks to avoid -- a “[f]ederal court[]
sitting in habeas [operating as] an alternative forum for trying
facts and issues which a prisoner made insufficient effort to
pursue in state proceedings.”      

    The district
court’s sua sponte decision to reach for evidence not submitted
to it or to the last state court that considered the matter,
although not as extreme as the situation in Cullen, thus seems
at least inconsistent with the spirit of Cullen and the
deference we owe to the procedural rules and substantive
judgments of state courts.        In the end, however, it is
unnecessary for us to resolve this dispute in the Commonwealth’s
favor because, even considering the February 12 transcript, it
is clear that Spates’s Sixth Amendment claim fails under AEDPA,
and that the district court erred in concluding otherwise.


                                           13
       In   Faretta,    the    Supreme       Court,   in     concluding         that    the

petitioner was sufficiently aware of the consequences of his

choice,     pointed    to    several    case-specific        facts       that   actually

parallel many of those in the instant case.                        Specifically, the

Court noted as follows:

       [W]eeks    before    trial,   Faretta   clearly    and
       unequivocally declared to the trial judge that he
       wanted to represent himself and did not want counsel.
       The record affirmatively shows that Faretta was
       literate, competent, and understanding, and that he
       was voluntarily exercising his informed free will.
       The trial judge had warned Faretta that he thought it
       was a mistake not to accept the assistance of counsel,
       and that Faretta would be required to follow all the
       “ground rules” of trial procedure.

.                 In light of these findings, the

Court additionally noted the lack of any “need [to] assess[] how

well   or    poorly    Faretta    had    mastered      the    intricacies         of    the

hearsay rule and the California code provisions . . . .                          For his

technical     legal    knowledge,       as    such,   was    not    relevant       to    an

assessment     of     his    knowing    exercise      of    the    right    to    defend

himself.”     

clearly and unequivocally represented to the

trial judge on February 12 that he wanted to proceed pro se.

See J.A. 140 (“I want to represent myself, which is my right.”);

J.A.   143    (“I     want   to   represent       myself,     but    I    want     to    be

prepared”).      The trial judge warned Spates that the case would

involve “a jury trial [with] a lot of legal issues and legal


                                             14
points that lawyers go to law school and gain experience in to

learn,” J.A. 129, and that his choice to represent himself was

“probably the most unwise thing that he could do,” J.A. 137.

Spates was informed that he would “be required to know when to

make an objection, [and] the basis of the objection,” that he

would     have    “to        pick     the     jury,”      and    would    “need       to     know

everything       that    the        lawyers    know,”         J.A.   139-40,    and    he     was

warned that he would not “be given any extra slack in this,”

J.A. 140.        Although Spates pushed mightily (and successfully)

for a continuance at that time, Spates never expressed a desire

to retain substitute counsel until May 7, 2007, the scheduled

date for trial, when he again sought to force delay by revoking

his   waiver      and    asking        for     a    continuance.          Although         Spates

claimed at that time that he did not understand the procedure

and   could      not    effectively           represent        himself,    “his    technical

legal knowledge . . . was not relevant to an assessment of his

knowing exercise of the right to defend himself,” 

, either when he invoked that right on February 12,

or when he confirmed the waiver on April 23.                           The district court

erred in ruling otherwise.

      As the district court observed, the trial judge did not

address     Spate’s          education        or    background       on   the     record      on

February 12.       However, Faretta imposes no requirement that such

an    assessment        be    discussed        on       the    record,    and   the        record

                                                   15
otherwise fully supports the Virginia court’s conclusion that

Spates was “literate, competent, and understanding.”                                  

    The trial judge had ample opportunity to observe Spates

during the colloquy on February 12.                        Moreover, Spates’s comments

reveal that he was fully capable of grasping the issues related

to   self-representation.             There       is        also     no    indication      that

Spates’s appointed counsel believed that he was incapable of

representing        himself    or    that    Spates          did     not    understand      the

demands      and   dangers    of     proceeding            without    counsel.        On    the

contrary, counsel acknowledged Spates’s right to do so, conveyed

the differences of opinion that led to the demand, and moved to

withdraw      as    counsel    of    record      and        be     appointed    as   standby

counsel instead.

       The   transcript       from    the   May        7    proceeding       also    confirms

that, while Spates may have regretted his earlier choice, he was

fully    capable     of   understanding          his       right     to    counsel   when    he

waived it.         The Virginia court viewed Spates’s efforts that day

as an “attempt[] to unreasonably and unjustifiably delay the

trial,    which     previously       had    been       continued.”           J.A.    74;    see

n.46 (“The right of self-representation

is not a license to abuse the dignity of the courtroom.                              Neither

is it a license not to comply with relevant rules of procedural

and substantive law.”).              That determination is fully supported



                                            16
by the record, and the district court erred in substituting its

contrary findings for those of the state court.

      Pointing primarily to the February 12 transcript, Spates

argues and the district court concluded that the trial court’s

Faretta inquiry was constitutionally insufficient.                     But that is

not the end of the story.                Spates clearly represented in the

April 23 Waiver that he had been informed of the charges against

him and the potential punishments he faced if convicted, and he

was   again    warned   that   he   may       be   confronted   with   complicated

legal issues.       The trial judge certified that she conducted an

oral examination of Spates, that he had been advised him of the

charges, punishments, and rights set forth therein, and found

that Spates “knowingly, voluntarily and intelligently waived his

rights    to   be   represented     by    a    lawyer.”    J.A.   24. 6    As   the


      6
       We can summarily dispose of Spates’s argument that the
trial court “believed it was putting the waiver issue to rest
[on February 12] and [that] nothing further would remain to be
done regarding it,” Spates Brief at 26, as well as his
unsupported allegation that “all that took place on [April 23]
with respect to self-representation was that Spates signed the
waiver form,” Spates Brief at 29.      There is no evidence to
support these suppositions, nor any legal basis upon which we
could reject the Virginia court’s decision based upon them. See
Parke v. Raley, 

, 29-30 (1992) (explaining that in
habeas corpus actions and other collateral challenges, “there is
no principle of law better settled, than that every act of a
court of competent jurisdiction shall be presumed to have been
rightly done, till the contrary appears”) (internal quotation
marks and alteration omitted); Johnson v. Zerbst, 

,
468 (1938) (“When collaterally attacked, the judgment of a court
carries with it a presumption of regularity. Where a defendant,
(Continued)
                                          17
Commonwealth points out, we are not at liberty to ignore the

April   23    Waiver      based       upon    the   February       12    colloquy   that

preceded     it,    nor   may    we    make    credibility     determinations       and

findings     of    fact   that    contravene        those   made    by    state   courts

which are supported by the record.

     Here, there was more than sufficient evidence upon which

the Virginia Court of Appeals could reasonably conclude that

Spates was “made aware of the dangers and disadvantages of self-

representation,” “that he kn[ew] what he [was] doing,” and that

“his choice [was] made with eyes open.”                     

(internal quotation marks omitted).                     And “[b]ecause it is

not clear that the [Virginia Court of Appeals] erred at all,

much less erred so transparently that no fairminded jurist could

agree with that court’s decision,”                   Bobby v. Dixon, 

, 27 (2011) (per curiam), we must reverse the district court’s

grant of habeas relief.

                                                                               REVERSED




without counsel, acquiesces in a trial resulting in his
conviction and later seeks release by the extraordinary remedy
of habeas corpus, the burden of proof rests upon him to
establish that he did not competently and intelligently waive
his constitutional right to assistance of counsel.”) (footnote
omitted).



                                             18