                                                                    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should not be published and is not precedent except under the limited circumstances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.




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