     Case: 13-40376      Document: 00512709587         Page: 1    Date Filed: 07/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 13-40376                                FILED
                                  Summary Calendar                          July 23, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
CHAD ANDREW ISENBERGER,

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:12-CV-113


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Chad Andrew Isenberger, Texas prisoner # 1435299, is serving a 40-year
sentence for aggravated sexual assault of a child. He filed a 28 U.S.C. § 2254
petition alleging he had received ineffective assistance of trial and appellate
counsel. The district court considered and rejected all of Isenberger’s claims
except the one alleging that trial counsel was ineffective for putting



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40376      Document: 00512709587     Page: 2   Date Filed: 07/23/2014


                                   No. 13-40376

Isenberger’s wife Dorette on the stand to testify at his trial. The district court
sua sponte dismissed that claim as unexhausted, and we granted a certificate
of appealability on that ruling.
         Isenberger asserts that he raised the claim regarding counsel’s decision
to have his wife testify in his state application for postconviction relief. The
respondent agrees with Isenberger’s assertion. The record indicates that the
substance of Isenberger’s claim was indeed raised before the state habeas
court.     Accordingly, the district court erred in dismissing the claim as
unexhausted.      See Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
Accordingly, we VACATE the district court’s judgment dismissing Isenberger’s
claim of ineffective assistance as unexhausted, and we REMAND this matter
for further proceedings on that sole claim.




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