Chad Isenberger v. William Stephens, Director , 575 F. App'x 548 ( 2014 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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