Pardo v. Vasquez

          ORDER DENYING A RHINES STAY AND GRANTING A KELLY STAY

          HONORABLE RONALD S.W. LEW United States District Judge

         I.

         INTRODUCTION

         Petitioner 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.

         II.

         PROCEDURAL HISTORY

         A. STATE COURT PROCEEDINGS

         On 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.

         Petitioner appealed his conviction in the California Court of Appeal.^[1] Id. at 2-3. The California Court of Appeal affirmed his conviction. Id. at 3.

         Petitioner filed a petition for review in the California Supreme Court.^[2] Id. The California Supreme Court denied the petition. Id.

         Petitioner has filed no habeas petition in state court challenging his 2013 conviction. Id.

         B. FEDERAL HABEAS PROCEEDINGS

         On April 6, 2016, Petitioner constructively filed^[3] 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. Id.

         On 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 ...