United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 28, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-40348
Summary Calendar
ERVIN JOSEPH KENNERSON,
Petitioner-Appellee,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,
Respondent-Appellant..
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. 3:00-CV-642)
_________________________________________________________
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
We affirm the district court for the following reasons:
1. For the reasons stated in the magistrate’s report and recommendation
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
and the district court’s opinion and order, we agree that, under
principles of clearly established federal law, the state trial court’s
refusal to reopen the trial prior to closing arguments so that Kennerson
could present the testimony of Michael Pratt violated his constitutional
right to call witnesses in his defense. Gilmore v. Taylor, 508 U.S. 333,
343 (1993); Chambers v. Mississippi, 410 U.S. 284, 294 & 302
(1973); Washington v. Texas, 388 U.S. 14, 19 (1967); see also
Roussell v. Jeanne, 842 F.2d 1512, 1515-16 (5th Cir. 1988).
2. We also agree that grave doubt exists as to whether the state court’s
error “had a substantial and injurious effect” on the verdict. O’Neal v.
McAninch, 513 U.S. 432, 435 (1995).
3. Lastly, we agree that the state habeas court’s necessary conclusions
otherwise, in it’s denial of habeas, were either contrary to, or an
unreasonable application of, clearly established federal law. The
district court correctly granted Kennerson’s petition for habeas relief.
28 U.S.C. § 2254(d)(1).
AFFIRMED.
2