Breverman

*414 MEMORANDUM *

Scott Breverman appeals the district court’s dismissal with prejudice of his petition for habeas corpus on the merits. In addition, Breverman alleges two procedural errors: (1) the district court’s refusal to consider his ineffective assistance of counsel claim because it was first raised in the traverse; and (2) the district court’s denial of his request to stay federal proceedings to allow him to exhaust his ineffective assistance claim in state court. We affirm the district court’s ruling as to Breverman’s claims it considered on the merits but reverse the decision not to consider the ineffective assistance claim.

1. The sole issue originally raised by Breverman in his federal habeas petition is that the state trial court erred by failing sua sponte to instruct the jury on the “heat-of-passion” theory of voluntary manslaughter as a lesser included offense. The district court properly rejected this argument. Only in capital cases is a court constitutionally required to instruct the jury on lesser included offenses supported by the evidence. Beck v. Alabama, 447 U.S. 625, 638 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980); Windham v. Merkle, 163 F.3d 1092, 1106 (9th…