United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3221SI

_____________ Darryl Davis, * * Appellant, * Appeal from the United Sta tes * District Court for the v. * Southern District of Iowa. * John Thalacker, * [UNPUBLISHED] * Appellee. *

_____________ Submitted: April 18, 1997 Filed: May 6, 1997

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

_____________
PER CURIAM.
Darryl Davis was charged in Iowa state court with drivin g while intoxicated and driving with a suspended or revoked license. Acc ording to the arresting officer, Davis was driving and trade d pl aces with his passenger, Heather Franzen, as the office r approached to stop Davis’s car. Davis claimed Franzen was th e driver and subpoenaed her to testify as a material witness at his tri al. Franzen had been charged with interference with officia l acts f or switching places with Davis, however, and with second

degree 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 pri vilege against self-incrimination if called to testify. Following a hearing, the court sustained the-2-

motion to quash. The next day, a different prosecutor triedDavis, who proceeded pro se with standby counsel, and a jury convicte d him. A few days later, Franzen pleaded guilty to third-degre e theft, and the State dismissed the interference charge.
Davis did not directly appeal his conviction, but later filed
a stat e postconviction action contending his right to compulsor y proc ess 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, an d Davis did not know about the plea bargain and its consummation
. The court did not find Franzen ’s testimony would be favorable, but conclu ded it would be “highly relevant” and “especiall y signif icant” because she was the only eyewitness besides th e arre sting officer. The court concluded the “possibility o f creating a conflict in [the] evidence . . . might create a reasonable doubt for the jury.” Holding the prosecutors’ failure to i nform Davis about Franzen’s pending plea agreement violate d Davis’s right to compulsory process, the court granted a new trial. The Iowa Court of Appeals reve rsed, finding Davis had procedurally def aulted his compulsory process claim by failing to appeal, an d the lo wer court’s reasons for excusing the failure were legall y insufficient.
Davis then filed this federal habeas action renewing hi s compulsory process claim. The district court held Davis wai ved the claim by failing to appeal in state court, and Davis failed to show cause and prejudice to overcome the procedural default. Th e district court saw no cause in Davis’s mistaken belief about th e bon drequirement and the prosecutors’ failure to advise Davis o f Franzen’s plea negotiations. The district also court concluded-3-

Davis had not shown prejudice because Davis did not show Franze n would have testified favorably. Davis appeals.

Feder al courts can consider the merits of procedurall y defaultedclaims if a petitioner shows cause for the default an d actual p rejudice. See Luton v. Grandison , 44 F.3d 626, 628 (8t h Cir. 1994). To establish cause, a petitioner must show som e objective factor external to the defense impeded the petitioner’s efforts to comply with state p rocedural requirements. See id. To es tablishprejudice, a petitioner must show the alleged error s work ed 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 sho wnprejudice. Davis has presented no evidence reflecting th e cont ent of Franzen’s testimony. Absent evidence that Franzen’ s testim onywould have been favorable, Davis has not shown th e fa ilure to compel Franzen’s testimony actually disadvantaged hi m and in fected his entire trial with error of a constitutiona l magn itude. The mere possibility that Franzen’s testimony migh t create a conflict in the evidence is not enough to establis h prejudice for the purpose of federal habeas review. See id.
Without showing Franzen’s test imony would be favorable, Davis cannot prevail on the merits of his claim anyway, whether h e characterizes it as a compulso ry process claim or as a due process claim. See Pennsylvania v. Ritchie , 480 U.S. 39, 56-57 (198 7) (due process right violated when go vernment prevents criminal defendant from discovering favorable evi dence); United States v. ValenzuelaBer nal , 458 U.S. 858, 867 (1982) (right to compuslory proces s violated only when criminal de fendant makes plausible showing that desired witness’s testimony wo uld have been favorable to defense);-4-

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, w e affirm the district court.
A true copy.

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