                                        ___________

                                        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:   November 6, 1996
                                        ___________

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


WOLLMAN, Circuit Judge.


      Ronnie Anderson appeals from the district court's1 denial of 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




       1
       The Honorable George F. Gunn, Jr., United States District
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.
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 post-
conviction 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), cert. denied, 115 S. Ct. 674 (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, 44 F.3d 704, 708 (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.   In other words, "the federal claim should not include
`significant additional facts such that the claim was not fairly presented
to the state court,' although we will review closely related claims which
contain at least an `arguable factual commonality.'"         Id. (citations
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."      This claim asserts that the trial court prevented trial
counsel




                                     -4-
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 witness.       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--violated the
Compulsory Process Clause of the Sixth Amendment.                  The




                                           -5-
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, the state trial court erred in excluding
Nunnally's testimony.




                                       -6-
     A finding of a violation of the Constitution does not necessarily
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), cert. denied, 498 U.S. 1126 (1991).     To justify habeas
relief, the error must have had a "`substantial and injurious effect or
influence in determining the jury's verdict.'"   Brecht v. Abrahamson, 113
S. Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)).   The preclusion of the alibi witness's testimony must have
resulted in "actual prejudice."   Brecht, 113 S. Ct. at 1722 (citing United
States v. Lane, 474 U.S. 438, 449 (1986)).


     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, identified Anderson as
the man she saw shoot and kill Smith.         In addition, Ray Welch also
identified Anderson as the man he saw carrying a gun soon after the
shooting.   Moreover, Anderson was found hiding in a bathroom closet, not
the expected abode of one who has had nothing to do with a recent killing.


     In contrast, the proposed alibi testimony from Nunnally, even if
believed, would have been nebulous at best.   Nunnally would have testified
only that he was with Anderson on the night of the murder, not that he was
with him at the moment of the shooting.


     Given the weight of the evidence and the weakness of the proposed
alibi defense, it is unlikely that Nunnally's testimony would have had any
effect on the jury's verdict.     Therefore, we conclude that although the
preclusion of Nunnally's testimony was error, the error was harmless.


     The judgment is affirmed.




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A true copy.


     Attest:


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




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