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 rehearing has been considered by the

Court and is granted. The opinion and judgment of this court

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 District

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Judge for the Eastern District of Missouri, adopting the Report and

Recommendation of the Honorable Thomas C. Mummert, United States

Magistrate Judge for the Eastern District of Missouri.

___________

No. 95-4251

___________

Ronnie L. Anderson, *

*

Appellant, *

* Appeal from the United States

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.

Ronnie Anderson appeals from the district court's denial of

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his 28 U.S.C. § 2254 petition for writ of habeas corpus. He argues

that he received ineffective assistance of trial counsel and was

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 in

Pinelawn, Missouri. Brenda Foster, who was standing approximately
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one foot from Smith at the time of the shooting, witnessed the

murder. Foster said she saw a man, whom she later positively

identified as Anderson, walk to the front of Smith's house and

stand six or seven feet away from Smith. She then saw Anderson

pull a gun from his pocket and shoot Smith. 

At about the same time, Ray Welch was walking to Smith's house

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 an alley. One of the men, whom Welch later identified as

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 went to the home of James Miller on the

evening of August 17 looking for Anderson. Miller gave the police

permission to enter his home. Anderson was found in the bathroom,

hiding in a storage closet over the bathtub.

Anderson maintained that at the time of the shooting he was

sitting alone on the front lawn of Miller's home. He gave trial

counsel, Stormy White, the names of alibi witnesses who were across

the street from Miller's home and could verify his alibi. Ms.

White enlisted two investigators to help locate the potential alibi

witnesses. When none were found, Ms. White, along with the two

investigators and another attorney, went door to door on several

occasions in an attempt to find alibi witnesses. Again, none were

found. Ms. White drove to Royal Lake, Illinois, in an attempt to

find Anderson's sister Deborah and James Miller, whom Anderson

claimed he had been visiting on the night of the killing. Counsel

was unable to find Deborah, although she was able to find Miller 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.)

 
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On the first day of trial, Anderson 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 Anderson.

Nunnally would have testified that he was with Anderson on the

night of August 16 but that he could not be sure if he was with him

at the time of the shooting.

When Ms. White sought to endorse Nunnally as an alibi witness,

the State objected, claiming that such a late endorsement would be

prejudicial and would be in violation of Missouri discovery rules.

The court sustained the objection and denied Ms. White's request

for leave to file the out-of-time endorsement. 

Anderson was convicted of first degree murder and armed

criminal action. He was sentenced as a prior, persistent offender

to consecutive terms of life imprisonment without parole for first

degree murder and to twenty-five years' imprisonment for armed

criminal action. His motion for a new trial was denied. 

Anderson filed a timely notice of appeal. He also filed a

motion for post-conviction relief, which alleged both of the

constitutional claims presented in this action. Pursuant to

Missouri law, the direct appeal was held in abeyance until

adjudication of the motion for post-conviction relief, which was

ultimately denied. 

Anderson appealed both his conviction and the denial of postconviction relief in a consolidated appeal, claiming in part that

the trial court abused its discretion in precluding him from

calling Nunnally as an alibi witness. Both decisions were affirmed

by the Missouri Court of Appeals in an unpublished opinion.

Anderson's motion to recall the mandate was also denied. Anderson

then filed this section 2254 petition.
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II.

Anderson contends that he was denied the effective assistance

of trial counsel because of counsel'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-conviction relief is procedurally defaulted if it is not

renewed in the appeal from the denial of post-conviction relief.

Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir. 1994). See also

Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996) (a claim

presented in a motion for post-conviction relief but not advanced

on appeal is abandoned).

To avoid defaulting on a claim, a petitioner seeking habeas

review must have fairly presented the substance of the claim to the

state courts. Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir.

1995), cert. denied, 116 S. Ct. 578 (1995). The petitioner must

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 "significant

additional facts such that the claim was not fairly presented to

the state court," but closely related claims containing an

"arguable factual commonality" may be reviewed. Kenley v.

Armontrout, 937 F.2d 1298, 1302-03 (8th Cir. 1991) (citation

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

consolidated appeal. Anderson alleged that by precluding

Nunnally's testimony, "the [trial] court's rulings denied

Appellant's rights . . . to the effective assistance of counsel."
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This claim asserts that the trial court prevented trial counsel

from being effective. The allegation 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 conclude

there may be an "arguable factual commonality" between Anderson's

ineffective assistance of counsel claim on appeal to the state

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

that 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 to

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 the

Missouri Court of Appeals makes mention of Ms. White's "diligent

efforts to locate witnesses on [Anderson's] behalf." As recounted

above, when the two investigators that Ms. White hired were

unsuccessful in their initial attempt to locate the witnesses, Ms.

White, the two investigators, and another attorney renewed the

effort to locate potential alibi witnesses. Given these numerous

efforts to locate alibi witnesses, Ms. White's representation of

Anderson cannot be said to have fallen "below an objective standard

of reasonableness." Strickland, 466 U.S. at 687-88. Accordingly,

Anderson's claim of ineffective assistance of counsel is without

merit. 

III.

Anderson also argues that the sanction imposed for violating

a discovery rule--preclusion of his alibi witness's testimony--
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violated the Compulsory Process Clause of the Sixth Amendment. The

district court concluded that because the discovery rules

themselves were constitutional, any perceived error in precluding

the alibi witness testimony was not of constitutional magnitude and

therefore not cognizable on habeas review. 

We disagree with the district court's conclusion that the

discovery sanction was not of constitutional magnitude. In Taylor

v. Illinois, 484 U.S. 400, 407-09 (1988), the Supreme Court noted

that although by its terms the Compulsory Process Clause confers

only the right to compel witnesses to appear through use of

subpoena power, the Clause has consistently been given a broader

interpretation. This broader interpretation necessarily

encompasses the right to present witness testimony, for the right

to compel a witness's presence in the courtroom could not protect

the integrity of the adversary process if it did not embrace the

right to have the witness's testimony heard by the trier of fact.

"The right to offer testimony is thus grounded in the Sixth

Amendment even though it is not expressly described in so many

words." Id. 

Thus, while the preclusion of alibi witness testimony can

violate the Sixth Amendment, it does not invariably do so. If the

discovery violation was "willful and motivated by a desire to

obtain a tactical advantage," it is "entirely consistent with the

purposes of the Compulsory Process Clause simply to exclude the

witness' testimony." Id. at 414-15. See also Grooms, 923 F.2d at

91 (exclusion is appropriate if the delay was result of

willfulness).

No court in this case has found, nor is there anything in the

record to indicate, that trial counsel was willful in her

noncompliance with the discovery rules. There is no evidence

tending to prove that either trial counsel or Anderson himself knew

the name of the alibi witness before the morning of trial. Thus,
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the state trial court erred in excluding Nunnally's testimony.

A finding of a violation of the Constitution does not, without

exception, mandate the grant of a writ, for a denial of Compulsory

Process can constitute harmless error. See Wright v. Lockhart, 914

F.2d 1093, 1098 (8th Cir. 1990). After a careful review of the

record, we conclude that the Compulsory Process violation was

"harmless beyond a reasonable doubt." Chapman v. California, 386

U.S. 18, 24 (1967).

The state adduced strong evidence of Anderson's guilt. Brenda

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 as

Anderson running down Greer Street and likewise saw him with a

"shiny pistol." Moreover, on the day after the murder, Anderson

was found hiding in a bathroom closet, not the expected abode of

one who has had nothing to do with a recent killing. 

Weighed against the state's evidence, Nunnally's testimony,

even if believed, would have lacked exculpatory force. Nunnally

would have testified only that he was with Anderson on the night of

the murder, not that he was with Anderson at the exact time of the

shooting. (We note that Nunnally failed to appear at Anderson's

Rule 29.15 evidentiary hearing, notwithstanding the fact that he

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 not have had any effect on the jury's verdict. Therefore,

although the preclusion of Nunnally's testimony was error, the
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error was harmless beyond a reasonable doubt. 

The judgment is affirmed.

A true copy.

Attest:

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