                      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.
                              ___________

                              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'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.)


                                  -2-
      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.




                                     -3-
                                       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."

                                       -4-
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--

                                   -5-
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,

                                        -6-
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

                                      -7-
error was harmless beyond a reasonable doubt.


     The judgment is affirmed.


     A true copy.


          Attest:


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




                                 -8-
