* Pursuant to Local Rule 47.5, the court has determin ed that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20439

_____________________

EARNEST EDWARD DACUS,

Petitioner-Appellee,

versus

LAWRENCE COLEMAN,

Respondent-Appellant.

________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-91-1079)

________________________________________________

March 25, 1996

Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM: *

At issue is the habeas relief granted Earnest Edward Dacus

following remand from our court. We REVERSE

.

I.

Dacus was convicted in 19 84 for delivery of a controlled

substance. An undercover police officer testified that, on June

18, 1983, she observed Dacus sell a "paper" of cocaine in a bar.

The undercover officer then purchased the cocaine with a marked $50

bill and left. After the contents of the "paper" field-tested

positive for cocaine, officers returned, executed a search warrant,

and arrested Dacus upon his being identified by the undercover- 2 -

officer. The marked bill was not found either on Dacus or in the

bar.

Dacus' trial defense was mistaken identity. Although Dacus'

attorney stated during voir dire that Dacus would call Melvin Kemp

as a witness to support that theory, Dacus rested without doing so.

During the charge conference, Dacus' attorney requested a 20-minute

recess to allow time for Kemp to arrive to testify. The judge

refused, but stated that Kemp would be allowed to testify if he was

present. After closing argument, Dacus' attorney requested that

the now present Kemp be allowed to testify. The judge refused.

Upon the jury finding Dacus guilty, th e court suspended

imposition of a six year sentence and placed Dacus on probation.

Dacus discharged the probationary term in early 1994.

Subsequent to a direct appeal and seeking state habeas relief,

Dacus sought federal habeas relief in 1991; summa ry judgment was

granted against him. One claim on appeal from that judgment was

that the trial judge abused his discretion by refusing to reopen

the case after closing argument to allo w Kemp to testify or to

e arlier wait for him to arrive rather than proceed to charge the

jury, and that this rendered the trial fundamentally unfair. Our

court found this claim procedurally barred, but remanded the case

for the district court to determine whether Dacus had made a

colorable showing that refusal to address the merits of this claim

would result in a fundamental miscarriage of justice. D acus v.

Coleman

, 92-2478 (5th Cir. 1994) (unpublished). The district court

was directed to consider whether a confession by another person1 Appellant contends also that the district court a bused its

discretion by refusing to rule on whether the Harris County

Attorney or the Texas Attorney General was responsible under Texas

law for representing appellant. But, the issue was not preserved

for review, because the Attorney General failed to appeal to the

district court the magistrate jud ge's denial of his motion to

withdraw. S ee, e.g., United States v. Renfro

, 620 F.2d 497 ( 5th

Cir.), cert. denied , 449 U.S. 921 (1980).

- 3 - (James Ben) a nd Kemp's testimony were sufficiently credible to

support Dacus' claim of factual innocence, and whether not allowing

Kemp to testify was error. Id

.

After an evidentiary hearing on remand, the magistrate judge

recommended granting relief. Over the appellant's objections, the

district court accepted the recommendation.

II.

At issue are whether Dacus has made a sufficient showing of

factual innocence to satisfy the "fundamental-miscarriage-ofjustice" exception to the procedural default doctrine and, if so,

whether the refusal to allow Kemp to testify rendered the trial

fundamentally unfair. 1 We review the district court's findings of

fact only for clear error; its conclusions of law and mixed

questions of law and fact are reviewed de novo

. B oyd v. Scott

, 45

F.3d 876, 879 (5th Cir. 1994), cert. denied

,

__ U.S.

__, 115 S. Ct.

1964 (1995).

A.

The Supreme Court has explained that when a habeas petitioner

d emonstrates that the constitutional error at issue has probably

resulted in the conviction of one who is actually innocent, then

failure to consider the procedurally defaulted habeas claim would- 4 -

result in a fundamental miscarriage of justice. S ee Sawyer v.

Whitley

, 945 F.2d 812, 816 (5th Cir. 1991) (discussing Supreme

Court's explanation of actu al innocence exception in M urray v.

Carrier , 477 U.S. 478 (1986)), affirmed, 505 U.S. 333 (1992). In

this respect, our court d irected the district court to consider

whether Ben's confession and Kemp's testimony were sufficiently

credible to support Dacus' claim of factual innocence.

As noted, the findings on factual i nnocence are entitled to

stand unless clearly erroneous. S ee Saahir v. Collins

, 956 F.2d

1 15, 120 (5th Cir. 1992) (applying clearly erroneous standard of

review to district court's finding on factual innocence). The

district court accepted the magistrate judge's recommendation,

which included credibility findings regarding Ben and Kemp's postremand testimony. Although the district court did not make an

explicit finding as to Dacus' showing of factual innocence, this

finding is implicit. The undercover officer did not testify at the

post-remand h earing; Ben testified that he was misled by his

attorney (who represented both Dacus and Ben) into si gning a

confession, which he did not possess the ability to read, but the

magistrate judge found his testimony lacked credibility; and Kemp

testified that it was Ben who was selling cocaine on the day in

issue , and the magistrate judge found this testimony credible.

These credibility determinations are not clearly erroneous.

Therefore, we consider the merits of Dacus' claim.- 5 - B.

Dacus contends that his trial was rendered fundamentally

unfair by the judge's refus al to reopen the case or to earlier

delay to await Kemp. This legal question is subject to d e novo

review.

Needless to say, "the writ of habeas corpus is not granted to

correct every error committed by a trial court". K irkpatrick v.

Blackburn

, 777 F.2d 272, 278 (5th Cir. 1985), cert. denied

, 476

U.S. 1178 (1986). Dacus must demonstrate that the error violated

his right to due process secured by the Fourteenth Amendment, but

"due process is violated only if the court's action denies a

defendant a fundamentally fair trial". Id

.

Dacus asserts that the trial court's rulings concerning Kemp's

testimony ren dered his trial fundamentally unfair by denying him

the benefit of testimony that would have "bolstered and reaffirmed

[his] testimony given at trial that [Dacus] did not sell drugs to

the undercove r officer". The substance of the contention is

essentially that the judge's actions operated to erro neously

exclude Kemp's testimony. "Erroneous exclusion of evid e nce is

fundamentally unfair if the evidence was material in the sense that

it was crucial, critical, and highly significant." Porretto v.

Stalder , 834 F.2d 461, 465 (5th Cir. 1987).

We can be concerned only with the testimony that Kemp would

have given at trial had he been given the opportunity to testify.

We conclude, based on the district court's factual findings, that

Kemp would not have testified that Ben committed the crime rather- 6 -

tha n Dacus and, therefore, the testimony would have been merely

cumulative to Dacus' testimony that he was not the seller.

The magistrate judge found that Kemp did not observe the sale

to the undercover officer, and would have testified that he never

saw Dacus selling drugs t hat day, but that Kemp "didn't want to

finger his friend, James Ben". In fact, the magistrate judge found

that Kemp believed that his friendship with Ben motivated him to be

late to the trial. These findings were accepted by the district

court. Based on these findings, we conclude that, at most, all

Kemp would have added, had he testified, would have been testimony,

cumulative to Dacus', that he did not believe Dacus was selling

drugs on the day in issue.

The testimony was not the type of crucial , critical, and

highly significant evidence, the erroneous exclusion of which could

violate due process. "Thus any error inherent in withholding this

evidence from the jury ... did not violate due process minimums."

Billiot v. Maggio , 694 F.2d 98, 101 (5th Cir. 1982).

III.

For the foregoing reasons, the grant of habeas relief is

REVERSED.