
    Thomas WOODS, Petitioner-Appellant, v. Thomas POOLE, Respondent-Appellee.
    No. 05-1587.
    United States Court of Appeals, Second Circuit.
    Nov. 15, 2005.
    
      Lynn W.L. Fahey (Melissa S. Horlick, on the brief), Appellate Advocates, New York, NY, for Appellant.
    Luke Martland, Assistant Attorney General (Robin A. Forshaw, on the brief), for Eliot Spitzer, Attorney General of the State of New York, New York, NY, for Appellee.
    PRESENT: CARDAMONE, McLaughlin, and b.d. parker, jr., Circuit Judges.
   SUMMARY ORDER

Petitioner-Appellant Thomas Woods appeals from a judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge) denying his application for a writ of habeas corpus. Woods claims that his sentence as a persistent felony offender was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court dismissed the petition after finding that Woods had failed to exhaust his Apprendi claim. Familiarity with facts, procedural history and issues is presumed.

The government concedes that Woods exhausted his claim in state court, noting that “this claim was fairly presented to the state courts, and therefore was exhausted.” Viewing the record as a whole, we agree with both parties that petitioner’s claim has been exhausted. Therefore, we vacate and remand so that the district court may consider the claim. We express no views on the merits of this claim.  