United States District Court, C.D. California
ORDER DENYING A RHINES STAY AND GRANTING A KELLY
HONORABLE RONALD S.W. LEW United States District Judge
Wilfredo Pardo (“Petitioner”) filed a pro
se Petition for Writ of Habeas Corpus
(“Petition”) pursuant to Title 28 of the United
States Code, section 2254. Petitioner has requested stays
pursuant to Rhines v. Weber, 544 U.S. 269, 161
L.Ed.2d 440, 161 L.Ed.2d 440 (2005) (“Rhines
stay”) and Kelly v. Small, 315 F.3d 1063 (9th
Cir. 2003) (“Kelly stay”). For the
reasons set forth below, the Court DENIES Petitioner’s
request for a Rhines stay but GRANTS
Petitioner’s request for a Kelly stay.
STATE COURT PROCEEDINGS
October 25, 2013, Petitioner was convicted of first degree
murder in violation of California Penal Code section 187 and
a firearm enhancement within the meaning of California Penal
Code section 12022.53 in the Riverside County Superior Court.
ECF Docket No. (“Dkt.”) 1, Pet. at 2. On November
22, 2013, Petitioner was sentenced to a term of fifty years
to life in prison.
appealed his conviction in the California Court of
Appeal. Id. at 2-3. The California Court
of Appeal affirmed his conviction. Id. at 3.
filed a petition for review in the California Supreme
Court. Id. The California Supreme Court
denied the petition. Id.
has filed no habeas petition in state court challenging his
2013 conviction. Id.
FEDERAL HABEAS PROCEEDINGS
April 6, 2016, Petitioner constructively filed the instant
Petition in this Court. Dkt. 1, Pet. Petitioner raises three
claims: (1) “Deliberation, as a calculated, careful
weighing process, is not present when a defendant fires
gunshots inside his own moving car while driving;” (2)
“Testimony about a quarrel, plus physical evidence of a
bloody struggle, is substantial circumstantial evidence of
heat of passion/provocation to warrant giving a requested
instruction;” and (3) “Chapman standard for
analysis of prejudice from jury instruction error requires
viewing the evidence in [the] light most favorable to the
proponent of the instruction.” See id. at 5-6.
Petitioner alleges he raised these three claims in his
petition for review in the California Supreme Court.
April 26, 2016, Petitioner constructively filed a Motion for
a Stay “in an effort to litigate several grounds in the
lower courts, ” but failed to identify: (1) the claims
he intended to litigate in ...