Ray Dansby v. Dexter Payne

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 19-3006
___________________________

Ray Dansby,

lllllllllllllllllllllPetitioner - Appellee,

v.

Dexter Payne, Director, Arkansas Department of Correction,

lllllllllllllllllllllRespondent - Appellant.
___________________________

No. 19-3105
___________________________

Ray Dansby,

lllllllllllllllllllllPetitioner - Appellant,

v.

Dexter Payne, Director, Arkansas Department of Correction,

lllllllllllllllllllllRespondent - Appellee.
____________

Appeals from United States District Court
for the Western District of Arkansas - El Dorado
____________

Submitted: November 16, 2021
Filed: August 25, 2022
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Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.

Ray Dansby was convicted by an Arkansas jury on two counts of capital
murder and sentenced to death. After the district court denied his second amended
petition for a writ of habeas corpus, this court vacated the dismissal of two claims and
remanded for further consideration. Dansby v. Hobbs, 766 F.3d 809, 841 (8th Cir.
2014). In the first claim, Dansby alleged that the state trial court had violated his
Sixth Amendment right to confront witnesses against him. In the second, he alleged
that the prosecution had engaged in misconduct. On remand, the district court denied
Dansby’s petition with respect to his conviction but granted relief with respect to his
sentence of death. We conclude that no relief is warranted, and therefore affirm in
part and reverse in part.

I.

This court has considered Dansby’s case before, and our discussion of the
background is drawn largely from those decisions. As summarized by the Arkansas
Supreme Court, see Dansby v. State, 893 S.W.2d 331 (Ark. 1995), the evidence at
trial showed that on the morning of August 24, 1992, Dansby arrived at the residence
of his ex-wife, Brenda Dansby, in El Dorado, Arkansas. Justin Dansby, their
eight-year-old son, was in the living room with Ronnie Kimble, Brenda’s boyfriend.
Justin was home with a cold and watching television, while Kimble was asleep on the
couch. Brenda had left earlier to buy orange juice for Justin, and when she returned
home, she was confronted by Dansby as she pulled her car into her driveway. Dansby
twice ordered her to leave her car, and she eventually complied. Justin testified at
trial that he saw Dansby hold Brenda “like a shield” before shooting her in the arm
and in the neck.

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 Greg Riggins, a neighbor from across the street, also offered an account of
Brenda’s death. According to his trial testimony, Riggins went to his front door after
hearing gunshots and witnessed Dansby and Brenda struggling with a revolver. He
then saw Dansby knock Brenda down, get the gun from her, and shoot two
consecutive rounds into her from two or three feet away. Brenda tried to rise, and
Dansby fired again, although Riggins believed the shot missed. After pausing for five
or six seconds, Dansby shot Brenda once more, and her body went flat.

Justin testified that Dansby then entered the home and shot Kimble in the chest.
Kimble nonetheless was able to retrieve his own gun from beneath the couch. Kimble
positioned himself behind the couch and attempted to return fire, but his gun
produced only “clicking noises.” Dansby chased Kimble to the back of the house,
and Justin heard about five more shots. When Justin went to investigate, he saw his
father standing over Kimble, kicking him twice and then saying something Justin
could not remember. Justin accompanied his father outside the house, where he saw
his mother, motionless, with “blood all over her neck.” Dansby and Justin walked
down the road, and after they separated, Justin called the police.

El Dorado police officers arrived at Brenda’s home to find her body outside.
They also found an injured Kimble on the floor of the back bedroom, along with a
jammed .38 automatic pistol lying under him. Kimble eventually died of his wounds
at a local hospital, but not before telling a police detective that Ray Dansby had shot
him.

Later the same day, a police officer encountered Dansby, who said, “I’m Ray
Dansby. Y’all are looking for me.” The officer then took Dansby to the police
station, where another officer advised Dansby of his rights. Dansby stated that he had
left the scene with two guns, a .32 revolver and a .38 revolver, but had disposed of
them where the police would never find them. By Dansby’s account, he had armed
himself before traveling to Brenda’s home because he knew both she and Kimble had

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handguns. Dansby explained that he had entered the front door to Brenda’s home to
find Kimble holding a handgun in his right hand “pointed down.” Dansby stated that
after an argument, “I just pulled my gun and started shooting.”

At trial, prosecutors presented several pieces of evidence beyond the
eyewitness testimony of Justin Dansby and Greg Riggins. An autopsy revealed
gunshot wounds near Brenda’s left ear and on her upper chest. Similar wounds were
found on Kimble’s chest, right arm, left upper back, and behind his left ear;
superficial wounds were present on his left flank. The prosecution also presented
testimony that Dansby was scheduled to appear in court on charges of second-degree
assault and contempt of court at 9:00 a.m. on the day of the murders. State
prosecutors brought those charges after Brenda had provided them with a signed
affidavit alleging that Dansby assaulted her.

Also testifying for the prosecution was Dansby’s jail cellmate Larry McDuffie,
the boyfriend of Dansby’s half-sister. McDuffie said that Dansby admitted in jail that
he had murdered Kimble and Brenda. Dansby told McDuffie he was “just glad” that
Brenda was dead. According to McDuffie, Dansby recounted the following series of
events: Dansby first shot Kimble after they “had words” about Brenda’s refusal to
withdraw the assault charges. Kimble staggered backward into the house. Dansby
then shot Brenda as she reached into her purse. Dansby followed Kimble into the
house, and shot him several more times. When Dansby exited the house, he found
that Brenda was still alive. In response to Brenda’s pleas for mercy, Dansby
answered, “Well, b—, you done f—ed up cause I’m not gonna leave you out here in
these streets when I done killed this man inside,” and then shot her once more.

A jury convicted Dansby of two counts of capital murder, and sentenced him
to death on both counts. The Arkansas Supreme Court affirmed the conviction and
sentence. Dansby, 893 S.W.2d at 333. Dansby petitioned for postconviction relief
under Arkansas Rule of Criminal Procedure 37. The trial court denied the petition,

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and the Arkansas Supreme Court affirmed. Dansby v. State, 84 S.W.3d 857 (Ark.
2002).

Dansby filed a petition for a writ of habeas corpus in the district court under
28 U.S.C. § 2254. The district court denied relief on all claims and dismissed the
petition. The court then denied Dansby’s motion to alter or amend the judgment. The
district court granted a limited certificate of appealability, and this court expanded the
certificate to encompass all claims that the district court had determined to be
procedurally defaulted. We affirmed the district court’s decision in part, but vacated
the dismissal of two claims and remanded for further consideration of those claims.
Dansby, 766 F.3d at 841. In the first claim, Dansby alleged that the state trial court
violated his Sixth Amendment right to confront witnesses against him. In the second,
he alleged that the prosecution violated his due-process rights by withholding
material exculpatory evidence and knowingly permitting false testimony.

On remand, the district court denied relief with respect to Dansby’s conviction
but granted relief from the death sentence and ordered the State to stipulate to a
sentence of life imprisonment. The court determined that Dansby’s prosecutorial-
misconduct claim was procedurally defaulted or, in the alternative, without merit.
The court concluded, however, that the state trial court had violated Dansby’s
constitutional right to confront witnesses against him. The court ruled that the
violation was harmless with respect to Dansby’s conviction, but reasoned that “the
error had a substantial and injurious effect” on the sentence. Both parties have
appealed.

II.

The claims at issue concern the trial testimony of Larry McDuffie. Dansby
argues first that the state trial court deprived him of his Sixth Amendment right to

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confront witnesses against him by limiting his opportunity to cross-examine
McDuffie and to introduce extrinsic evidence to impeach him.

A.

The parties dispute whether our review of Dansby’s confrontation claim is
subject to the strictures of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). AEDPA limits when a federal court may grant relief on a claim that was
“adjudicated on the merits” in state court. 28 U.S.C. § 2254(d). Dansby asserts that
the Arkansas Supreme Court did not adjudicate his claim on the merits.

The Arkansas Supreme Court reviewed a ruling of the state trial court. After
Dansby was arrested for murder, he was incarcerated with McDuffie in Union
County, Arkansas. McDuffie was in jail after his arrest on a pending felony drug
charge. Before trial, the prosecution moved in limine for an order to preclude the
defense from “mentioning or attempting to elicit testimony from any witness
regarding the reason for McDuffie’s incarceration, and pending charges or attendant
matters.”

The trial court ruled that charges that had been filed in the past against
McDuffie that did not result in convictions were “clearly inadmissible and should not
be referred to because the witness may not be impeached in that manner.” The court
provided that Dansby could inquire whether McDuffie had served as a confidential
informant for the El Dorado police department and whether he had been paid by the
department for information in the past.

Dansby sought additional leeway to elicit testimony designed to show
McDuffie’s bias. In a brief and at a pretrial hearing, Dansby claimed that McDuffie
had received special treatment from the State. He alleged that McDuffie had a history
of working as an informant for local police, that he had been in and out of jail three

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or four times in recent months, that the State’s treatment of previous criminal cases
against him was inconsistent with its handling of other cases, and that he was not
sanctioned for violating conditions of release.

The trial court ordered that Dansby could inquire whether McDuffie had
received promises of leniency or guarantees of immunity, but could not present
evidence about “extrinsic matters which would call upon the jury to perform a feat of
speculation or conjecture in order to relate it to [the] alleged bias.” If McDuffie
denied or failed to admit facts that tended to show bias, however, then Dansby would
be entitled to produce extrinsic evidence to rebut McDuffie’s testimony. The court
cautioned that unless there was “direct evidence of an agreement of a promise of
immunity or something along that nature,” Dansby would be “in the realm of
speculation and conjecture.”

The Arkansas Supreme Court upheld the trial court’s ruling. First, the court
determined that the trial court correctly prevented Dansby from attacking McDuffie’s
credibility based on evidence of prior criminal activity for which McDuffie had not
been convicted. Dansby, 893 S.W.2d at 338. Second, the court reasoned that the trial
court correctly allowed Dansby “to explore the area of bias” through cross-
examination but not with extrinsic evidence. Id. at 338-39. The court explained that
a defendant had the right to prove facts by extrinsic evidence only if the witness
denied or failed fully to admit pertinent facts. Id. Finally, the court opined that
Dansby’s proffered extrinsic evidence would have called for “the jury to perform a
feat of speculation or conjecture” to connect it to the alleged bias. Id. at 339.

As a starting point, we presume that a state court has adjudicated a federal
claim on the merits if the defendant presented the claim to the state court and the
court denied relief. Harrington v. Richter, 562 U.S. 86, 99 (2011). This presumption
applies even when the state court’s opinion does not expressly address the claim.
Johnson v. Williams, 568 U.S. 289, 300-01 (2013).

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 Dansby has not rebutted the presumption of adjudication. Nothing in the
opinion of the Arkansas Supreme Court suggests that it disposed of Dansby’s
confrontation claim on procedural grounds. See Kenley v. Bowersox, 275 F.3d 709,
711 (8th Cir. 2002). Nor is it likely that the court “simply overlooked” the claim.
Johnson, 568 U.S. at 300-01. In his briefing before the state supreme court, Dansby
argued that the trial court did not give adequate weight to his confrontation rights
when it limited the scope of his cross-examination. The Arkansas Supreme Court
then affirmed the trial court’s decision, stating with approval that the ruling left
Dansby free to explore “guarantees of immunity or promises of leniency,” as well as
“the area of bias.” Dansby, 893 S.W.2d at 338-39. We think it highly unlikely that
the court overlooked whether the trial court’s order adequately protected Dansby’s
confrontation rights when it considered the precise limitations that Dansby challenged
as unconstitutional.

The materials cited by the Arkansas Supreme Court reinforce our conclusion.
The court framed parts of its discussion in terms of Arkansas Rule of Evidence
608(b). Rule 608(b) provides that a party may not prove specific instances of conduct
through extrinsic evidence and may inquire into them on cross-examination only “if
probative of truthfulness or untruthfulness.” Ark. R. Evid. 608(b). But the court then
discussed Biggers v. State, 878 S.W.2d 717 (Ark. 1994), which held that a particular
application of Rule 608(b) did not violate a defendant’s constitutional right to
confrontation. Id. at 722. By relying on Biggers, the court in Dansby’s case
demonstrated that it was addressing “a question with federal constitutional
dimensions.” Johnson, 568 U.S. at 304-06. Accordingly, AEDPA governs our
review of the state court’s decision to deny relief.

B.

Under AEDPA’s standard of review, the question is whether the Arkansas
Supreme Court’s decision “was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d). Dansby asserts that the state court’s treatment of his
confrontation claim either was contrary to, or an unreasonable application of, three
Supreme Court decisions: Olden v. Kentucky, 488 U.S. 227 (1988); Delaware v. Van
Arsdall, 475 U.S. 673 (1986); and Davis v. Alaska, 415 U.S. 308 (1974). In each of
these cases, the Court held that “the trial court violated a defendant’s right to
cross-examination by excluding evidence relatively likely ‘to show a prototypical
form of bias on the part of’ a critical witness.” Sittner v. Bowersox, 969 F.3d 846,
851 (8th Cir. 2020) (quoting Van Arsdall, 475 U.S. at 680).

A decision is contrary to federal law if it (1) contradicts a rule set forth in the
Supreme Court’s cases or (2) confronts a set of “materially indistinguishable” facts
and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A
decision unreasonably applies federal law if the “state court correctly identifies the
governing legal standard but either unreasonably applies it to the facts of the
particular case or unreasonably extends or refuses to extend the legal standard to a
new context.” Munt v. Grandlienard, 829 F.3d 610, 614 (8th Cir. 2016). “To
demonstrate an unreasonable application, a prisoner must show that a state court’s
adjudication was not only wrong, but also objectively unreasonable, such that
fairminded jurists could not disagree about the proper resolution.” Zornes v. Bolin,
37 F.4th 1411, 1415 (8th Cir. 2022) (internal quotations omitted). “The more general
the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

In Olden, Van Arsdall, and Davis, the Supreme Court recognized that
“constitutional rights can trump evidentiary rules and privileges in some
circumstances.” Sittner, 969 F.3d at 851. Yet those decisions also reaffirmed the
principle that the right to cross-examine may “bow to accommodate other legitimate
interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295
(1973). In each case, the Court acknowledged that a defendant’s opportunity for

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cross-examination must be weighed against other concerns, including “harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679; see also Olden,
488 U.S. at 232; Davis, 415 U.S. at 316.

The state trial court placed three limits on Dansby’s cross-examination of
McDuffie. Two concerned the use of extrinsic evidence. To rebut McDuffie’s
testimony with extrinsic evidence, Dansby was required to establish first that
McDuffie denied facts on cross-examination that tended to show bias. Extrinsic
evidence also could not invite “the jury to perform a feat of speculation or
conjecture.” None of the cited Supreme Court decisions is contrary to this ruling.
Olden, Van Arsdall, and Davis did not even concern the use of extrinsic evidence.
Nor do they establish any principle that was applied unreasonably by the Arkansas
court in limiting the use of extrinsic evidence. Indeed, the Supreme Court “has never
held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic
evidence for impeachment purposes.” Nevada v. Jackson, 569 U.S. 505, 512 (2013)
(per curiam) (emphasis removed). Thus, the Arkansas Supreme Court did not act
contrary to, or unreasonably apply, clearly established federal law when it approved
the trial court’s limitations on the use of extrinsic evidence.

The other limitation concerned the scope of the cross-examination itself. The
trial court instructed Dansby not to question McDuffie about past charges that did not
result in convictions. The court clarified, however, that Dansby could inquire into
“evidence of guaranties of immunity or promises of leniency or any other
considerations.”

At trial, Dansby did not make use of the latitude allowed by the trial court’s
ruling. During cross-examination, McDuffie revealed that he had worked as an
informant and reached a signed agreement with law enforcement. Yet Dansby did not
develop a line of questioning about any special treatment that McDuffie may have

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received in return for his cooperation. On this point, Dansby asked only three
questions, and the trial court disallowed just one. The objectionable question
concerned why McDuffie was held in jail at the time he implicated Dansby, but that
question standing alone sought evidence about unadjudicated criminal activity that
the trial court had properly ruled inadmissible. Dansby asked no questions
concerning McDuffie’s treatment by law enforcement in the time between his release
from jail and his trial testimony. Within the limits of the trial court’s ruling, Dansby
was allowed to explore whether McDuffie continued to cooperate with law
enforcement, whether he received preferential treatment in exchange, and whether he
hoped to receive favorable treatment in return for his testimony. That Dansby did not
question McDuffie on these matters is not attributable to the court’s ruling.

The trial court recognized, on the one hand, the need to curb speculation and
to avoid improper impeachment based on charges that did not result in convictions.
On the other, the court considered Dansby’s right to elicit probative evidence of
favorable treatment of McDuffie by law enforcement or the State. The court balanced
these interests by permitting Dansby to inquire into the sources of McDuffie’s
potential bias so long as he did not ask about past charges that did not result in
convictions. If McDuffie failed to testify truthfully, then Dansby could rebut his
testimony by presenting relevant extrinsic evidence. The Arkansas Supreme Court
did not contravene, or unreasonably apply, the decisions in Olden, Van Arsdall, and
Davis by concluding that the balance struck by the trial court was permissible under
the Sixth Amendment. Accordingly, Dansby’s claim regarding the Confrontation
Clause does not justify relief.

III.

Dansby next alleges that the prosecution withheld material exculpatory
evidence, in violation of the rule in Brady v. Maryland, 373 U.S. 83 (1963), and
knowingly permitted McDuffie to testify falsely, in violation of Dansby’s right to due

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process. See Napue v. Illinois, 360 U.S. 264 (1959). These allegations are closely
related. Dansby contends that the State concealed various unwritten inducements that
the prosecution had offered to McDuffie in exchange for his testimony. These
alleged inducements included a favorable sentencing recommendation in McDuffie’s
pending felony drug case and non-enforcement of the conditions of his pretrial
release. Dansby points to a statement purportedly signed by McDuffie in 2005,
recanting his trial testimony and accusing the prosecution of directing him to testify
in a manner that he told the authorities was not true.

The district court concluded that Dansby had procedurally defaulted his
Brady–Napue claim. Alternatively, the court decided that the claim was without
merit. We agree that the claim is defaulted, and need not address the merits.

A.

Dansby argues that we should proceed directly to the merits because the State
has waived its right to raise procedural default as a defense. Dansby contends that
the State waived the defense by failing to present it adequately in response to
Dansby’s second amended habeas petition.

Dansby first presented his Brady–Napue claim in the second amended petition.
The State responded by incorporating any arguments that it made in opposition to
Dansby’s first claim in his two previous petitions. In its earlier responses, the State
had asserted that Dansby’s first claim “was grounded solely in state law, and for that
reason is defaulted.” The first claim in Dansby’s original and first amended petitions,
however, concerned the Confrontation Clause, not Brady or Napue. This court
concluded that the State’s incorporation of a previous argument on procedural default
was insufficient to give Dansby notice of its position that the Brady–Napue claim, in
particular, was procedurally defaulted. Dansby, 766 F.3d at 824-25.

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 The State now concedes that it forfeited an assertion of procedural default as
to the Brady–Napue claim but denies that it strategically waived the defense. “A
waived claim or defense is one that a party has knowingly and intelligently
relinquished; a forfeited plea is one that a party has merely failed to preserve.” Wood
v. Milyard, 566 U.S. 463, 470 n.4 (2012). A federal court retains discretion to
address procedural default if the State inadvertently failed to present the issue. King
v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (en banc). In this case, the State’s
attempt to raise a procedural-default argument through incorporation by reference,
though ineffectual, did not signal its intent to waive the defense. Instead, it showed
only that the lawyers made a mistake in fashioning the response. The district court
had discretion to address procedural default after giving the parties proper notice.
Dansby, 766 F.3d at 824; King, 266 F.3d at 821-22.

B.

A petitioner has procedurally defaulted a claim if he did not present the claim
in state court and there are no remaining state remedies available. Skillicorn v.
Luebbers, 475 F.3d 965, 976 (8th Cir. 2007). Dansby did not raise his Brady–Napue
claim in state court, but he asserts that the claim is not defaulted because he has
available to him a state remedy: the writ of error coram nobis. This writ permits the
Arkansas Supreme Court to reinvest jurisdiction in a state circuit court to consider
certain “errors of the most fundamental nature,” including the State’s withholding of
material evidence. Howard v. State, 403 S.W.3d 38, 43 (Ark. 2012).

The writ of coram nobis, however, is unavailable if Dansby failed to exercise
due diligence in petitioning for relief. The Arkansas Supreme Court has “consistently
held” that if a petitioner delays in pursuing relief, and lacks a valid excuse for that
delay, the court may deny his petition “on that basis alone.” Henington v. State, 556
S.W.3d 518, 523 (Ark. 2018). “Due diligence requires that (1) the defendant be
unaware of the fact at the time of trial; (2) the defendant could not have, in the

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exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact,
the defendant did not delay bringing the petition.” Id.

By his own account, Dansby was aware before trial that McDuffie’s testimony
supposedly was false. He asserts, however, that this awareness had no practical value
without evidence to prove its falsity or knowledge of the agreement between
McDuffie and the State. That contention rings hollow, because Dansby did not take
reasonable steps to develop the evidence before trial. In the document furnished to
Dansby’s counsel in April 2005, McDuffie stated:

Nobody representing Ray ever talked to me about the case, either before
the trial or at anytime until now. I was really surprised by that, I was
waiting on the trial lawyers to come talk to me so I could tell them what
I knew but they never contacted me.

McDuffie’s expressed willingness to share “what [he] knew” before the trial shows
that Dansby, through due diligence, could have uncovered evidence of McDuffie’s
supposed agreement with the State by interviewing him before the trial. See Thomas
v. State, 241 S.W.3d 247, 250 (Ark. 2006) (per curiam).

In any event, after McDuffie’s purported recantation in April 2005, Dansby had
the information that he needed to petition for a writ of error coram nobis. Yet he
waited six years before bringing the statement to this court’s attention. Even now,
after another decade has passed, Dansby has not sought coram nobis relief. In light
of this delay, we conclude that the Arkansas Supreme Court would decline to reinvest
jurisdiction in a circuit court to hear Dansby’s claim. See id. (declining to reinvest
jurisdiction when the petitioner waited “more than five years” without good cause
before seeking coram nobis relief); see also Gordon v. State, 588 S.W.3d 342, 347
(Ark. 2019) (affirming the denial of a petition for the same reason).

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 To avoid this conclusion, Dansby asserts that “pursuit of a claim in federal
court satisfies the diligence requirement for coram nobis relief.” He relies on
Newman v. State, 354 S.W.3d 61 (Ark. 2009), where the Arkansas Supreme Court
made a fact-specific determination that a prisoner and his counsel acted diligently by
pursuing a claim in federal court. Id. at 67-68. In that unusual case, the prisoner’s
counsel attempted to initiate state proceedings under Arkansas Rule of Criminal
Procedure 37 on the prisoner’s behalf. These efforts were thwarted by the prisoner,
who was incompetent at the time, so his counsel pursued relief in federal court
instead. Id. at 68-69. Once federal habeas proceedings were initiated, the prisoner
placed his newly discovered evidence front and center. See id. at 64; Newman v.
Norris, 597 F. Supp. 2d 890, 895 (W.D. Ark. 2009). Although Newman did not
petition for a writ of coram nobis in state court before pursuing his claim through a
federal petition for habeas corpus, he diligently presented the newly discovered facts
in a judicial forum.

Dansby, by contrast, possessed McDuffie’s recantation for years without
pressing it in any court. Six months after obtaining the recantation, Dansby filed a
motion to expand the record in the district court that did not mention McDuffie’s
written statement. Several years passed before he finally raised it. Without good
cause for his delay, we conclude the Arkansas Supreme Court would not permit a
state circuit court to entertain a petition for the writ of error coram nobis. Because
Dansby has not alleged that any other state remedies are available to him, his claim
is procedurally defaulted.

C.

A petitioner who has defaulted his claim may not present that claim through a
habeas corpus petition unless he establishes both cause and prejudice. Clemons v.
Luebbers, 381 F.3d 744, 750 (8th Cir. 2004). Dansby cannot show either.

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 To show cause, Dansby must demonstrate that his failure to comply with the
state procedural rule was attributable to “some objective factor external to the
defense.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Because the State’s
suppression of evidence is both a factor external to the defense and an element of a
Brady claim, the claim sometimes may provide its own cause to excuse a procedural
default. Hall v. Luebbers, 296 F.3d 685, 699 (8th Cir. 2002). But that rule obtains
only where the State’s suppression of evidence is the reason for the petitioner’s
default. See Henry v. Ryan, 720 F.3d 1073, 1082-83 (9th Cir. 2013). A petitioner has
not shown cause if he “had evidentiary support for his claim” before his default, id.,
or if the evidence was “reasonably available through other means.” Zeitvogel v. Delo,
84 F.3d 276, 279-80 (8th Cir. 1996).

Dansby could have learned about McDuffie’s information by interviewing him
before trial, and, at the latest, Dansby possessed the facts necessary to seek relief
when he obtained McDuffie’s recantation in 2005. At that point, Dansby could have
filed a petition in state court, or, at the very least, presented the new evidence in his
federal habeas corpus proceeding. His failure to do so is attributable to him, rather
than some external cause, and is therefore insufficient to excuse the procedural
default.

Even if Dansby could show cause, he also would have to establish prejudice
by demonstrating that the allegedly suppressed McDuffie evidence is material to his
conviction or sentence. Banks v. Dretke, 540 U.S. 668, 698-99 (2004). That is, there
must be “a reasonable probability that, had the evidence been disclosed, the result of
the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70
(2009).

Dansby argues that the evidence was material because it would have allowed
him to undermine the credibility of McDuffie’s trial testimony. See Napue, 360 U.S.
at 269. But while Dansby says that McDuffie’s testimony was “unique,” the record

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at the guilt phase shows otherwise. The most damaging portions of his testimony
were cumulative of other evidence. See Strickler v. Greene, 527 U.S. 263, 293-96
(1999). Eyewitnesses described how Ray Dansby shot both Brenda Dansby and
Ronnie Kimble. Justin Dansby testified repeatedly that neither victim drew a gun
before suffering a gunshot wound. Justin heard Dansby fire about five shots at
Kimble as he tried to flee. According to Riggins, Dansby killed Brenda as she lay
defenseless on the ground. Forensic evidence showed that Brenda and Kimble each
suffered multiple gunshot wounds. Before he died, Kimble identified Ray Dansby
as his killer. Dansby himself told police that after an argument, he “just pulled [his]
gun and started shooting.” As we observed in a previous decision, “there was
substantial evidence apart from McDuffie’s testimony that permitted a jury to infer
that Dansby killed the victims in a premeditated and deliberate manner.” Dansby,
766 F.3d at 817.

As to the sentence, McDuffie’s testimony again was not as significant as
Dansby suggests. During the penalty phase, the jury concluded that the evidence
supported three aggravating circumstances. Two of those are undisputed and
unrelated to McDuffie’s testimony: that Dansby had (1) committed a prior violent
felony, and (2) created a risk of death or injury to someone other than the victims. As
to the third aggravating circumstance—that the murders were “committed in an
especially cruel or depraved manner”—McDuffie’s testimony bore only on the
disjunctive alternative of depravity. Cruelty was established by testimony showing
that Dansby intended to and did inflict mental anguish upon his victims by leaving
them at least briefly uncertain as to their ultimate fate. Ark. Code Ann. § 5-4-604(8);
see Anderson v. State, 108 S.W.3d 592, 608 (Ark. 2003). The jury also found that
Dansby’s evidence did not support the existence of any mitigating factor. We see no
material connection between McDuffie’s testimony and the suggested mitigating
factors, which concerned Dansby’s personal life and characteristics, criminal history,
moral culpability, or subsequent cooperation with police. Where an error is alleged
to have impacted only one of multiple aggravating factors, the absence of any

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mitigating factors strongly suggests that any error was harmless. See Jones v. State,
10 S.W.3d 449, 455 (Ark. 2000).

We therefore conclude that Dansby’s claim based on Brady and Napue is
procedurally defaulted, and that he has not demonstrated cause and prejudice to
overcome the default. We need not address whether the district court properly
deemed McDuffie’s recantation incredible without holding an evidentiary hearing,
because no hearing is required where the petitioner’s allegations, even if true, fail to
overcome a procedural default. See Amos v. Minnesota, 849 F.2d 1070, 1072 (8th
Cir. 1988); Moormann v. Ryan, 628 F.3d 1102, 1114 (9th Cir. 2010).

* * *

For these reasons, we affirm the district court’s denial of relief on Dansby’s
conviction, but reverse the grant of relief with respect to the sentence. The case is
remanded with directions to dismiss the second amended petition for writ of habeas
corpus.
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