United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 95-4251EMSL Ronnie L. Anderson, * * Appellant, * * Appeal from the United States vs. * District Court for the * Eastern District of Missouri. Michael Groose, et al., * * Appellees. *

Appellant's petition for rehea ring has been considered by the Court and is granted. The opinion and judgment of this cour t entered on November 6, 1996, are vacated and the attached opinion is being filed in its stead.

February 6, 1997

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.The Honorable George F. Gunn, Jr., United States Distric t 1 Judge for the Eastern District of Missouri, adopting the Rep ort and Recomm endationof the Honorable Thomas C. Mummert, United State s Magistrate Judge for the Eastern District of Missouri. ___________ No. 95-4251

___________ Ronnie L. Anderson, * * Appellant, * * Appeal from the United State s v. * District Court for the * Eastern District of Missouri
. Michael Groose, Jeremiah W. * (Jay) Nixon, * * Appellees. *

___________ Submitted: September 11, 1996 Filed: February 6, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

___________ WOLLMAN, Circuit Judge.

Ronn ie Anderson appeals from the district court's denial o f 1 his 28 U.S.C. § 2254 petition for writ of habeas corpus. He argues tha t he received ineffective assistance of trial counsel and wa s denied the right to present a defense under the Compulsory Process Clause of the Constitution. We affirm.

I.

At about midnight on August 16, 1989, Alvin Smith, aged 17 , was shot and killed as he sat on the front porch of his home i n Pinelawn, Missouri. Brenda Fo ster, who was standing approximately-2-

on e foot from Smith at the time of the shooting, witnessed th e murder. F oster said she saw a man, whom she later positivel y identified as Anderson, walk to the front of Smith's house an d stand six or seven feet away from Smith. She then saw Anderso n pull a gun from his pocket and shoot Smith.
At about the same time, Ray Welch was walking to Smith's hou se to get money from him for pizza. Welch heard gunshots and a woman's scream. He then saw two men running towards him and flee into a n alley. One of the men, whom Welch later identified a s Anderson, was carrying a gun.
After Foster identified Anderson from police photos as the man she saw shoot Smith and Welch identified Anderson as the man he saw with a gun, the police wen t to the home of James Miller on the evening of August 17 looking f or Anderson. Miller gave the police permission to enter his home. Anderson was found in the bathroom, hiding in a storage closet over the bathtub.

Andersonmaintained that at the time of the shooting he wa s sittin g alone on the front lawn of Miller's home. He gave tria l counsel, Stormy White, the names of alibi witnesses who were across th e street from Miller's home and could verify his alibi. Ms
. White enlisted two investigators to help locate the potentia l alibi witne sses. When none were found, Ms. White, along with the tw o inv estigators and another attorney, went door to door on severa l occasions in an attempt to fin d alibi witnesses. Again, none were found. Ms. White drove to Royal Lake, Illinois, in an attempt to fi nd Anderson's sister Deborah and James Miller, whom Anderso n claimed he had been visiting o n the night of the killing. Counsel was unable to find Deborah, although she was able to find Mi ller on her second trip to Royal Lake. (Counsel determined that Miller's testimony would not have provided an alibi and would in fact have been damaging to Anderson's defense.)-3-

On the first day of trial, And erson told Ms. White that a man named Brian Nunnally could verify his alibi. Ms. White contacted Nunnally, who said he was willing to testify on behalf of An derson. Nunnallywould have testified that he was with Anderson on th e night of August 16 but that he could not be sure if he was w ith him at the time of the shooting.
When Ms. White sought to endorse Nunnally as an alibi witnes s, the State objected, claiming t hat such a late endorsement would be prejudicial and would be in vi olation of Missouri discovery rules. The court sustained the objection and denied Ms. White's reques t for leave to file the out-of-time endorsement.

Anders onwas convicted of first degree murder and arme d criminal action. He was sente nced as a prior, persistent offender to consecutive terms of life i mprisonment without parole for first de gree murder and to twenty-five years' imprisonment for arme d criminal action. His motion for a new trial was denied.

Ander sonfiled a timely notice of appeal. He also filed a motion for post-conviction relief, which alleged both of th e consti tutional claims presented in this action. Pursuant t o Mis souri law, the direct appeal was held in abeyance unti l adjudi cationof the motion for post-conviction relief, which wa s ultimately denied.
Anderson appealed both his conviction and the denial of postconviction relief in a consolidated appeal, claiming in part that the tr ial court abused its discretion in precluding him fro m calling Nunnally as an alibi witness. Both decisions were a ffirmed bythe Missouri Court of Appeals in an unpublished opinion
. Anderson's motion to recall th e mandate was also denied. Anderson then filed this section 2254 petition.-4- II.

Anderson contends that he was denied the effective assistance of trial counsel because of co unsel's failure to adequately pursue alibi witnesses. The district court concluded that this claim was procedurally barred, as it was not presented to the Missouri Court of Appeals in the consolidated appeal.
A claim that is presented to the state court on a motion for post-convictionrelief is procedurally defaulted if it is no t ren ewed in the appeal from the denial of post-conviction relief
. Lowe-Beyv. Groose , 28 F.3d 816, 818 (8th Cir. 1994). See als o Reese v. Delo , 94 F.3d 1177, 1181 (8th Cir. 1996) (a clai m presented in a motion for post-conviction relief but not advanced on appeal is abandoned).

To avoid defaulting on a claim, a petitioner seeking habea s review must have fairly presented the substance of the claim to the state co urts. Krimmel v. Hopkins , 56 F.3d 873, 875-76 (8th Cir
. 1995), c ert. denied , 116 S. Ct. 578 (1995). The petitioner mus t present to the federal court the same factual arguments and legal theories that were presented to the state court. Id. at 876. In other words, the federal claim cannot contain "significan t additional facts such that the claim was not fairly presented t o th e state court," but closely related claims containing a n "a rguable factual commonality" may be reviewed. Kenley v
. Armont rout , 937 F.2d 1298, 1302-03 (8th Cir. 1991) (citatio n omitted).
We have some question whether this claim was fairly presented on appeal in the state court. There is merely one vague reference to a claim of ineffective assistance of counsel in Anderson' s co nsolidated appeal. Anderson alleged that by precludin g Nunnally's testimony, "the [trial] court's rulings denie d Appellant's rights . . . to the effective assistance of counsel."-5-

This c laim asserts that the trial court prevented trial counse l from being effective. The all egation in this action, on the other hand, is that trial counsel herself was ineffective. These are two distinct legal theories, with distinct factual arguments.
Giving Anderson the benefit of the doubt, however, we conclu de there may be an "arguable factual commonality" between Anderson's ineffective assistance of counsel claim on appeal to the stat e court and his ineffective assistance claim in this action.

To succeed on an ineffective assistance of counsel claim , Anderson must show that Ms. White's performance was deficient and th at the deficiency prejudiced his defense. Strickland v
. Washington , 466 U.S. 668, 687 (1984).
This is not a situation in which counsel made no effort t o contact alibi witnesses. See Grooms v. Solem , 923 F.2d 88, 90 (8th Cir. 1991) (it was unreasonable for counsel to not make some effort to contact alibi witnesses). Indeed, Anderson's brief to th e Mis souri Court of Appeals makes mention of Ms. White's "diligen t efforts to locate witnesses on[Anderson's] behalf." As recounted above, when the two investigators that Ms. White hired wer e unsuccessful in their initial attempt to locate the witnesses, Ms. Wh ite, the two investigators, and another attorney renewed th e effort to locate potential alibi witnesses. Given these numerous effort s to locate alibi witnesses, Ms. White's representation o f Anderson cannot be said to have fallen "below an objective s tandard of reasonableness." Stricklan d , 466 U.S. at 687-88. Accordingly, Anders on's claim of ineffective assistance of counsel is withou t merit.

III.
Anderson also argues that the sanction imposed for violating a discovery rule--preclusion of his alibi witness's testimony---6-

violated the Compulsory Process Clause of the Sixth Amendmen t. The di strict court concluded that because the discovery rule s themselves were constitutional, any perceived error in precluding the alibi witness testimony was not of constitutional magnit ude and therefore not cognizable on habeas review.

We disagree with the district court's conclusion that th e discovery sanction was not of constitutional magnitude. In Taylor v. Illinois , 484 U.S. 400, 407-09 (1988), the Supreme Court noted tha t although by its terms the Compulsory Process Clause confer s onlythe right to compel witnesses to appear through use o f sub poena power, the Clause has consistently been given a broade r interpretation. This broader interpretation necessaril y encompasses the right to present witness testimony, for the right to compel a witness's presence in the courtroom could not protect the inte grity of the adversary process if it did not embrace th e right to have the witness's testimony heard by the trier of fact. "The right to offer testimony is thus grounded in the Sixt h Amendment even though it is not expressly described in so man y words." Id.

Th us, while the preclusion of alibi witness testimony ca n violate the Sixth Amendment, i t does not invariably do so. If the dis coveryviolation was "willful and motivated by a desire t o obtain a tactical advantage," it is "entirely consistent with the purpos es of the Compulsory Process Clause simply to exclude th e witness' testimony." Id. at 4 14-15. See also Grooms , 923 F.2d at 91 (exclusion is appropriate if the delay was result o f willfulness).
No court in this case has foun d, nor is there anything in the record to indicate, that trial counsel was willful in he r non compliance with the discovery rules. There is no evidenc e tending to prove that either trial counsel or Anderson himse lf knew the name of the alibi witness before the morning of trial. Thus,-7-

the state trial court erred in excluding Nunnally's testimony.
A finding of a violation of the Constitution does not, witho ut exception, mandate the grant o f a writ, for a denial of Compulsory Process can constitute harmless error. See Wright v. Lockha rt , 914 F.2d 1093, 1098 (8th Cir. 1990). After a careful review of th e record, we conclude that the Compulsory Process violation wa s "harml ess beyond a reasonable doubt." Chapman v. California , 38 6 U.S. 18, 24 (1967).
The state adduced strong evidence of Anderson's guilt. Bren da Foster, who was standing only one foot from the victim at the time of the murder, and six or seven feet from the perpetrator , testified that she saw a man, later identified by her as Anderson, pull a "long silver gun" from his pocket and then fire it at Smith. Foster testified that she heard another shot after that and thought she heard two more shots. She then saw Anderson running down Greer Street. Ray Welch also saw a man that he later identified a s Andersonrunning down Greer Street and likewise saw him with a "shinypistol." Moreover, on the day after the murder, Anderso n was foun d hiding in a bathroom closet, not the expected abode o f one who has had nothing to do with a recent killing.
Weighedagainst the state's evidence, Nunnally's testimony , eve nif believed, would have lacked exculpatory force. Nunnall y would have testified only that he was with Anderson on the n ight of the murder, not that he was wi th Anderson at the exact time of the shooting. (We note that Nunnally failed to appear at Anderson' s Rule 2 9.15 evidentiary hearing, notwithstanding the fact that h e had been endorsed as a witness.)
Given the weight of the state's evidence and the weakness of the proposed alibi defense, we conclude that Nunnally's testimony would no t have had any effect on the jury's verdict. Therefore , although the preclusion of Nunnally's testimony was error, the-8-

error was harmless beyond a reasonable doubt.
The judgment is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.