United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3221SI

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Darryl Davis, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Southern District of Iowa.

*

John Thalacker, * [UNPUBLISHED]

*

Appellee. *

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 Submitted: April 18, 1997

 Filed: May 6, 1997

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Before RICHARD S. ARNOLD, Chief Judge, and FAGG and MURPHY, Circuit

Judges.

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PER CURIAM.

Darryl Davis was charged in Iowa state court with driving

while intoxicated and driving with a suspended or revoked license.

According to the arresting officer, Davis was driving and traded

places with his passenger, Heather Franzen, as the officer

approached to stop Davis’s car. Davis claimed Franzen was the

driver and subpoenaed her to testify as a material witness at his

trial. Franzen had been charged with interference with official

acts for switching places with Davis, however, and with seconddegree burglary for unrelated acts. Franzen’s prosecutor filed a

motion to quash Davis’s subpoena on the ground that Franzen would

assert her Fifth Amendment privilege against self-incrimination if

called to testify. Following a hearing, the court sustained the 
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motion to quash. The next day, a different prosecutor tried Davis,

who proceeded pro se with standby counsel, and a jury convicted

him. A few days later, Franzen pleaded guilty to third-degree

theft, and the State dismissed the interference charge. 

Davis did not directly appeal his conviction, but later filed

a state postconviction action contending his right to compulsory

process was violated when the trial court quashed Franzen’s

subpoena. The state postconviction court excused Davis’s failure

to file a direct appeal, finding Davis mistakenly believed he was

required to file appellate bonds, which he could not afford, and

Davis did not know about the plea bargain and its consummation.

The court did not find Franzen’s testimony would be favorable, but

concluded it would be “highly relevant” and “especially

significant” because she was the only eyewitness besides the

arresting officer. The court concluded the “possibility of

creating a conflict in [the] evidence . . . might create a

reasonable doubt for the jury.” Holding the prosecutors’ failure

to inform Davis about Franzen’s pending plea agreement violated

Davis’s right to compulsory process, the court granted a new trial.

The Iowa Court of Appeals reversed, finding Davis had procedurally

defaulted his compulsory process claim by failing to appeal, and

the lower court’s reasons for excusing the failure were legally

insufficient. 

Davis then filed this federal habeas action renewing his

compulsory process claim. The district court held Davis waived the

claim by failing to appeal in state court, and Davis failed to show

cause and prejudice to overcome the procedural default. The

district court saw no cause in Davis’s mistaken belief about the

bond requirement and the prosecutors’ failure to advise Davis of

Franzen’s plea negotiations. The district also court concluded 
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Davis had not shown prejudice because Davis did not show Franzen

would have testified favorably. Davis appeals.

Federal courts can consider the merits of procedurally

defaulted claims if a petitioner shows cause for the default and

actual prejudice. See Luton v. Grandison, 44 F.3d 626, 628 (8th

Cir. 1994). To establish cause, a petitioner must show some

objective factor external to the defense impeded the petitioner’s

efforts to comply with state procedural requirements. See id. To

establish prejudice, a petitioner must show the alleged errors

worked to the petitioner’s actual and substantial disadvantage,

infecting the entire trial with constitutional error. See id.

Even if Davis has shown cause, Davis loses because he has not

shown prejudice. Davis has presented no evidence reflecting the

content of Franzen’s testimony. Absent evidence that Franzen’s

testimony would have been favorable, Davis has not shown the

failure to compel Franzen’s testimony actually disadvantaged him

and infected his entire trial with error of a constitutional

magnitude. The mere possibility that Franzen’s testimony might

create a conflict in the evidence is not enough to establish

prejudice for the purpose of federal habeas review. See id.

Without showing Franzen’s testimony would be favorable, Davis

cannot prevail on the merits of his claim anyway, whether he

characterizes it as a compulsory process claim or as a due process

claim. See Pennsylvania v. Ritchie, 480 U.S. 39, 56-57 (1987) (due

process right violated when government prevents criminal defendant

from discovering favorable evidence); United States v. ValenzuelaBernal, 458 U.S. 858, 867 (1982) (right to compuslory process

violated only when criminal defendant makes plausible showing that

desired witness’s testimony would have been favorable to defense);
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United States v. Mejia-Uribe, 75 F.3d 395, 399 (8th Cir.) (same),

cert. denied, 117 S. Ct. 151 (1996).

Having considered and rejected all of Davis’s arguments, we

affirm the district court.

A true copy.

Attest:

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