ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding with counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 11, 2011, petitioner filed an amended petition and a motion to stay. Respondent opposes both the filing of the amended petition and the motion to stay. Upon review of the motions, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
FACTUAL AND PROCEDURAL BACKGROUND On December 20, 2007, a jury convicted petitioner in Weaverville, CA of second degree murder and corporal injury of a cohabitant with an enhancement for assault with a firearm. Lodgment ("LD") 4 at 1. He was sentenced to twenty-five years to life. Id. at 2.
On direct appeal, petitioner raised the following grounds for relief: (1) the trial court improperly instructed the jury on mutual combat; (2) the trial court improperly instructed the jury on felony murder based on a felony which is dangerous to human life in violation of Due Process and California law; (3) the trial court erroneously permitted expert testimony on battered woman syndrome and erroneously excluded statements of the victim regarding her state of mind;
(4) the trial court erred by excluding evidence of a statement petitioner reportedly made to a defense investigator after the killing that included a reference to the victim attacking him with scissors; (5) cumulative error; (6) the upper terms were imposed erroneously on counts two and three without an adequate statement of reasons and in violation of petitioner's Sixth Amendment rights; and (7) the abstract of judgment failed to reflect that counts two and three were stayed by the trial court. LD 1.
On October 9, 2009, the California Court of Appeal, Third Appellate District, affirmed petitioner's conviction and sentence in an unpublished opinion. LD 4.
Petitioner appealed to the California Supreme Court, which denied the petition for review on January 13, 2010. LD 6. Petitioner did not appeal to the United States Supreme Court. Petitioner also did not file any applications for post-conviction relief or collateral review in the state courts.
On February 5, 2010, petitioner filed a petition for writ of habeas corpus in this court setting forth three grounds for relief: (1) the trial court improperly instructed the jury on mutual combat; (2) the trial court improperly instructed the jury on felony murder based on a felony which is dangerous to human life in violation of Due Process and California law; and (3) the trial court erred by excluding evidence of a statement petitioner reportedly made to a defense investigator after the killing that included a reference to the victim attacking him with scissors. On July 13, 2010, respondent filed an answer.
On September 15, 2010, petitioner filed a motion for a competency hearing. That motion was filed by a jailhouse lawyer who asserted that, in light of petitioner's mental capacity, petitioner would be unable to function competently in his own defense. On October 1, 2010, petitioner's state appellate counsel filed a letter also questioning petitioner's mental capacity.
On October 19, 2010, the undersigned ordered the Federal Defender to determine whether petitioner qualified for appointment of counsel pursuant to 18 U.S.C. § 2006A and, if so, whether petitioner's state appellate counsel should be appointed. The Federal Defender met with petitioner on November 30, 2010 and subsequently determined that petitioner did appear to qualify for appointment of counsel; petitioner requested that someone other than his state appellate counsel be appointed. Thereafter, the Federal Defender was appointed, but was unable to continue their representation of petitioner. On January 28, 2011, John Balazs was appointed to represent petitioner.
On April 11, 2011, petitioner, through newly appointed counsel, filed a first amended petition and a motion to stay. In the amended petition, petitioner sets forth four grounds for relief: (1) the trial court improperly instructed the jury on mutual combat; (2) the trial court improperly instructed the jury on felony murder; (3) ineffective assistance of counsel for trial counsel's failure to move to exclude testimony of witnesses, to object to privileged testimony, to object to improper jury instructions, and to object to sentencing errors; and (4) cumulative error. On April 18, 2011, respondent filed an opposition. Also on April 18, 2011, petitioner filed a reply with a request for leave to file the amended petition.
On August 29, 2011, the undersigned ordered petitioner to submit supplemental briefing concerning his mental health problems. On September 14, 2011, petitioner submitted a response to the court's order.
DISCUSSION A. Request for Leave to Amend
An application for a writ of habeas corpus "may be amended or supplemented as provided in the rules of civil procedure applicable to civil actions." 28 U.S.C. § 2242. See also Rule 11, Fed. R. Governing § 2254 Cases (providing that the Federal Rules of Civil Procedure may be applied in habeas corpus proceedings to the extent that the rules of civil procedure are not inconsistent with any statutory provision or with the rules governing habeas cases); Fed. R. Civ. P. 81(a)(4) (providing that the Federal Rules of Civil Procedure are applicable to habeas corpus proceedings). Under Federal Rule of Civil Procedure 15(a), a habeas petitioner may amend his pleadings once as a matter of course before a responsive pleading is served and may seek leave of court to amend his pleading at any time during the proceeding. Mayle v. Felix, 545 U.S. 644 (2005).
The amended petition proposes to add a claim for ineffective assistance of trial counsel. This claim is unexhausted and is presently pending before the California Supreme Court in a petition for writ of habeas corpus. See Mot. to Stay, Attach. Petitioner seeks leave to file the amended petition due to his lack of education, mental health problems, the size of the record and the complexity of the murder case. These arguments are made by petitioner's counsel, who was appointed nearly one year after the underlying petition was filed by petitioner proceeding pro se. Because leave to amend should be freely given, see Fed. R. ...