MEMORANDUM OPINION AND ORDER
Petitioner was convicted of capital murder by a jury in Crawford County, Arkansas in 2002. Petitioner now seeks habeas relief on 15 separate grounds. Before the Court are Petitioner’s Petition for Writ of Habeas Corpus (Doc. 13) and Respondent’s Response (Doc. 20). Petitioner claims that his custody and pending sentence of death violate the rights аccorded to him as a United States citizen under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. He requests that this Court (1) *892 order his unconditional release, (2) order retrial by the State of Arkansas, or (3) order resentencing by the State of Arkansas. As reflected below, the Court finds that the Petition presents both exhausted and unexhausted claims for rеlief. Furthermore, the Court finds that the Petition presents exceptional circumstances that warrant dismissal of only the unexhausted claims and a stay of the remaining exhausted claims. Because a stay is an extraordinary measure, the Court finds that the stay can only be predicated upon (1) the condition that Petitioner seek prompt relief on the unexhausted claims from the State of Arkansas and (2) the condition that, once relief has been exhausted in State court, he promptly return to this Court and request that the stay be lifted as to the remaining exhausted claims.
I. FACTUAL BACKGROUND
The facts of this case were set out in detail in a previously reported decision,
Newman v. Arkansas,
II. PROCEDURAL HISTORY
Petitioner was charged with capital murder in the Circuit Court of Crawford County, Arkansas for the violent murder. After a capital murder trial that began and ended on June 10, 2002, Petitioner was convicted and sentenced to death.
Following the verdict, Petitioner attempted to waive his direct appeal, but this was denied by the Arkansas Supreme Court. Petitioner then attempted to have the mandatory direct appeal dismissed while it was pending, and this was likewise denied on January 30, 2003,
On July 30, 2003, Petitioner requested tо waive the appointment of post-conviction counsel and to abandon all post-conviction remedies. He further requested that an execution date be set as soon as possible. Crawford County Circuit Court found that Petitioner had entered a valid waiver of his rights to counsel and to seek post-conviction relief. However, the Arkansas Supreme Court reversed this order as it appeared that Petitioner could have been on psychotropic medication during the time he requested the waivers. The case was remanded to the circuit court and a mental health evaluation ordered.
After receiving a report from Dr. Charles Mallory, a рsychologist with the Arkansas State Hospital, the Crawford County Circuit Court again accepted Petitioner’s waivers and found him competent to waive his rights. On April 15, 2004, 357
*893
Ark. 39,
On September 20, 2004, federal public defenders filed a motion in Crawford County Circuit Court requesting forensic DNA testing. On February 3, 2005, the Crawford County Circuit Court held an Inquiry Hearing as to legal representation of Petitioner and concluded that the federal public defenders, Bruce Eddy and Julie Brain, had not been appointed to represent Petitioner. Therefore, the court terminated Eddy and Brain from further representation of Petitioner and dismissed all pending motions (specifically thе request for DNA testing) filed on behalf of Petitioner. The federal public defenders then filed a reconsideration motion regarding the request for forensic DNA testing and a request to proceed through Next-Friend Betty Moore. These were denied on May 2, 2005.
In the Arkansas Supreme Court, on September 21, 2004, the federal public defenders filed a Motion to Recall the Mandate and For a Stay of Execution. The Arkansas Supreme Court issued a stay and set a briefing schedule to assist with the decision to recall the mandate. Petitioner then requested the Arkansas Supreme Court to vacate its briefing schedule to allow him to proceed with his post-conviction appeal in Crawford County Circuit Court. The Arkansas Supreme Court granted the request to vacate the briefing schedule on December 9, 2004. On June 2, 2005, the Arkansas Supreme Court granted a pro se motion to dissolve Petitioner’s stay of execution. On September 8, 2005, the Arkansas Supreme Court declared the Motion to Recall the Mandate to be moot.
III. DISCUSSION
Before a federаl court will review the merits of a petitioner’s habeas claims, the petitioner must normally exhaust available state judicial remedies.
Picard v. Connor,
However, “[t]he question of exhaustion ‘refers only to remedies still available at the time of the federal petition;’ it requires federal courts to ask whether an applicant for federal relief could still get the relief he seeks in the state system.”
O’Sullivan v. Boerckel,
A. Mixed Petition
The United States Supreme Court has recognized that a petitioner risks losing the right to federal habeas review by application of the statute of limitations when a mixed petition is dismissed due to unexhausted claims.
Rhines v. Weber,
1. Petitioner’s Exhausted Claims
During the mandatory direct review, the Arkansas Supreme Court reviewed several claims identical to or closely related to Petitioner’s current federal habeas claims. Specifically, Petitioner has raised the following claims:
(a) That the prosecutor committed misconduct during his clоsing argument to the jury at the conclusion of the guilt phase by expressing his personal opinion that Petitioner killed the victim as a sex crime (Claim 4, Section 3, Sub-Section A);
(b) That the first statement given to law enforcement on February 15, 2001, violated his constitutional rights as Petitioner lacked the capacity to knowingly and intelligently waive his Miranda rights (Claim 5, Section 2, Sub-Section A);
(c) That allowing Pеtitioner to appear before the jury in jail clothing and physical restraints violated his constitutional rights (Claim 6); and
(d) That the admission of testimony regarding his prior assault charge and other prior crimes was irrelevant and prejudicial, in violation of his constitutional rights (Claim 11, Section 1).
These claims have met the exhaustion requirements. Petitioner аlso claims that the Court should conduct a cumulative review (Claim 15). We find exhaustion inapplicable to this claim.
A Petitioner’s Unexhausted Claims
Petitioner has not presented the following claims to the Arkansas courts:
(a) That he is actually innocent of the crime (Claim 1);
(b) That trial counsel rendered constitutionally ineffective assistance at the guilt phase (Claim 2);
(c) That trial counsel rendered constitutionally ineffeсtive assistance at the penalty phase (Claim 3);
(d) That his constitutional rights to a fair trial were violated by the State’s failure to disclose material exculpatory information, presentation of and failure to correct testimony it knew to be false, and other prosecutorial misconduct (Claim 4, except for Sub-Section A of Sеction 3);
(e) That admitting into evidence Petitioner’s statements illegally obtained violated his constitutional rights (Claim 5, except Sub-Section A of Section 2);
(f) That Petitioner’s rights to a trial by a fair and impartial jury were violated in multiple respects (Claim 7);
(g) That Petitioner is ineligible for a sentence of death as the State failed to prove beyond a reasonable doubt the aggravating circumstance that he had *895 previously committed a violent felony (Claim 9) 1 ;
(h) That permitting the jury to rehear a portion of Petitioner’s trial testimony during its deliberations violated Petitioner’s constitutional rights (Claim 10) 2
(i) That the admission of irrelevant and highly prejudicial evidence of other crimes and bad character violated Petitioner’s constitutionаl rights (Claim 11, except Section 1);
(j) That errors and omissions by appellate counsel deprived Petitioner of his constitutional right to effective assistance on appeal (Claim 12);
(k) That Petitioner’s capital trial was conducted before state judicial officers dependent upon popularly-contested electiоns (Claim 13); and
(i) That the sentencing provisions of Arkansas’s capital murder statutes violate the constitution (Claim 14).
Claim 8, that Petitioner was tried while mentally incompetent in violation of his constitutional rights, was considered and ruled upon by the Arkansas courts. However, because new evidence has been presented regarding the adequacy of the opinion of the only expert to testify regarding Petitioner’s competency to stand trial, this issue can no longer be considered exhausted. Therefore, we find Claim 8 is unex-hausted.
S. New Evidence Not Considered by State Courts
The statute of limitations had run by the time Petitioner filed his habeas petition in this Court. Petitioner moved to equitably toll the time between the running of the statute and the filing of thе petition. In that regard, evidentiary hearings were held on the issue of equitable tolling of the statute of limitations, ultimately finding that equitable tolling was warranted in an order dated January 24, 2008,
During the evidentiary hearings on the issue of equitable tolling on November 8, 2007 and November 27, 2007, we examined the question of whether Petitioner was afforded a full and fair comрetency hearing at the time he waived post-conviction proceedings. During these hearings, new evidence was presented that the sole witness at Petitioner’s state competency hearings, Dr. Charles Mallory, a forensic psychologist employed by the Department of Human Services, Arkansas State Hospital, incorreсtly graded the test he administered to Petitioner (resulting in a higher intelligence quotient score), used improper tests to determine Petitioner’s competency, and improperly administered Petitioner’s tests. The Order issued January 24, 2008 describes this evidence (Doc. 78).
Petitioner has also presented additional evidence not considered by the Arkansas courts regarding the reasonableness of Petitioner’s legal decisions at the time of his trial and appeals, as well as evidence not considered by the state courts regarding Petitioner’s actual innocence claim. (Docs. 84, 89).
B. Comity Requires the Exhaustion of the Unexhausted Claims.
Comity requires that Petitioner exhaust his unexhausted claims so that State courts have a fair opportunity to address Petitioner’s claims in light of the above new evidence. Furthermore, there is ad *896 ditional evidence that has not been considered by State courts, and the State courts should have the opportunity to review this evidence in light of Petitioner’s claims.
The Arkansas Supreme Cоurt has addressed the issue of newly discovered evidence of incompetency at trial and declined to issue a writ of
error coram nobis. See Echols v. Arkansas,
Although the entirety of Petitioner’s unexhausted claims do not deal directly with the new evidence regarding Petitioner’s competency, we nevertheless find that the State should have the opportunity to address all of the unexhausted claims, as well as the previously exhausted competency claim in light of the above-discussed new evidence. We believe that the State courts are in the best position to weigh the proffered new evidence and decide whether they will now consider it and review Petitioner’s unexhausted claims.
C. Petitioner has Good Cause for Failing to Exhaust
At this point, the statute of limitations has run. If the Petition is now dismissed, Petitioner would be unable to re-file it in federal court after exhausting the unexhausted claims.
See Rhines v. Weber,
Petitioner has shown that he was mentally impaired at the time he waived all waivable appeals to the state courts and waived his right to appellate counsel. We find that Petitioner’s mental impairment and questionable competence at the time he should have filed his state appeals is an exceptional circumstance that constitutes good cause for his failure to exhaust his claims. His unexhausted claims involve evidence never before considered by state courts and are potentially meritorious. Furthermore, we find that there is no indication that Petitioner has engaged in intentionally dilatory litigation tactics.
IV. CONCLUSION
For the sake of comity, and before we can decide Petitioner’s claims, Arkansas courts must be permitted to review the newly discovered evidence regarding Dr. Mallory’s testimony that Petitioner was competent, as well as the additional new evidence proffered by Petitioner.
This Court finds this case presents exceptional circumstance as contemplated by the Eighth Circuit. Therefore, the proper disposition of this mixed petition is to (1) dismiss the unexhausted claims so that the State may properly have the first opportunity to rule on claims effected by the newly discovered evidence; (2) hold all other exhausted claims in abeyance; and (3) predicate the stay upon the twin conditions that *897 Petitioner promptly seek relief from the Staté and then promptly return to this Court (if necessary) to diligently prosecute his petition here.
Therefore, we order that (1) the unex-hausted claims should be and hereby are DISMISSED and that (2) the remainder of the claims should be and hereby are STAYED on two conditiоns: (a) that Petitioner affirmatively seek relief on his unex-hausted claims with the State of Arkansas within thirty days of the date of this Order, and (b) that Petitioner act within thirty days of the full exhaustion of the dismissed claims at the State level to seek to have the stay lifted by this Court on the remaining claims.