Alvarez v. Gipson
ORDER FOR AMENDED PETITION (Illston, Susan) (Filed on 12/12/2012) (Additional attachment(s) added on 12/12/2012: # 1 Certificate of Service) (tlS, COURT STAFF).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
No. C 12-5623 SI (pr)
ORDER FOR AMENDED PETITION
CONNIE GIPSON, warden,
George Alvarez filed a petition for writ of habeas corpus last year to challenge his 2002
conviction in Monterey County Superior Court. See Alvarez v. Lopez, No. 11-373 SI. His
petition asserted claims that (1) his right to due process was violated because the evidence was
insufficient to support the verdict, (2) his right to due process was violated because a juror
engaged in misconduct, and (3) California Penal Code § 667.61 is unconstitutional After
respondent moved to dismiss the petition as untimely and procedurally defaulted, Alvarez moved
for a voluntary dismissal to exhaust state court remedies as to one or more claims. The court
granted the motion and dismissed the action on July 25, 2011.
Last month, Alvarez filed this action, with a new petition for writ of habeas corpus to
challenge the same 2002 conviction. In the 2012 petition, Alvarez asserted only one claim, i.e.,
that he is factually innocent of the kidnaping of Jane Doe # 1. He urged that the claim was based
on the "newly discovered evidence" of the California Supreme Court's decision in People v.
Brents, 53 Cal. 4th 699, 267 P.3d 1135 (Cal. 2012).
It is unclear to the court whether Alvarez intended to abandon the three claims that he
asserted in his 2011 petition or somehow thought they would automatically be considered in the
present action. Alvarez is now informed that the only claim pending in this court is the actual
innocence claim. The three claims from his 2011 petition are not before the court and will not
be considered unless he amends his 2012 petition to allege those claims. Therefore, if Alvarez
wants this court to consider those three claims, he must file an amended petition in this action
alleging those claims, as well as the actual innocence claim and any other claim he wants the
court to consider. With very few and very limited exceptions, a petitioner may file only one
federal habeas petition to challenge his conviction, and likely will face dismissal of any later-
filed petition raising new claims. See 28 U.S.C. § 2244(b).
No later than January 18, 2013, Alvarez must file an amended petition that asserts all
of his claims regarding the 2002 conviction. If he does not file an amended petition by that date,
the court will assume that he truly wishes to have the court consider only the claim that he is
Also, no later than January 18, 2013, Alvarez must file a completed in forma pauperis
application or pay the $5.00 filing fee. Failure to file the application or pay the filing fee by the
deadline will result in the dismissal of this action.
IT IS SO ORDERED.
DATED: December 12, 2012
United States District Judge
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