Alvarez v. Gipson

Filing 3

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).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GEORGE ALVAREZ,

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United States District Court
For the Northern District of California

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No. C 12-5623 SI (pr)

Petitioner,

ORDER FOR AMENDED PETITION

v.
CONNIE GIPSON, warden,
Respondent.
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George Alvarez filed a petition for writ of habeas corpus last year to challenge his 2002

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conviction in Monterey County Superior Court. See Alvarez v. Lopez, No. 11-373 SI. His

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petition asserted claims that (1) his right to due process was violated because the evidence was

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insufficient to support the verdict, (2) his right to due process was violated because a juror

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engaged in misconduct, and (3) California Penal Code § 667.61 is unconstitutional After

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respondent moved to dismiss the petition as untimely and procedurally defaulted, Alvarez moved

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for a voluntary dismissal to exhaust state court remedies as to one or more claims. The court

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granted the motion and dismissed the action on July 25, 2011.

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Last month, Alvarez filed this action, with a new petition for writ of habeas corpus to

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challenge the same 2002 conviction. In the 2012 petition, Alvarez asserted only one claim, i.e.,

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that he is factually innocent of the kidnaping of Jane Doe # 1. He urged that the claim was based

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on the "newly discovered evidence" of the California Supreme Court's decision in People v.

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Brents, 53 Cal. 4th 699, 267 P.3d 1135 (Cal. 2012).

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It is unclear to the court whether Alvarez intended to abandon the three claims that he

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asserted in his 2011 petition or somehow thought they would automatically be considered in the

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present action. Alvarez is now informed that the only claim pending in this court is the actual

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innocence claim. The three claims from his 2011 petition are not before the court and will not

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be considered unless he amends his 2012 petition to allege those claims. Therefore, if Alvarez

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wants this court to consider those three claims, he must file an amended petition in this action

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alleging those claims, as well as the actual innocence claim and any other claim he wants the

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court to consider. With very few and very limited exceptions, a petitioner may file only one

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federal habeas petition to challenge his conviction, and likely will face dismissal of any later-

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filed petition raising new claims. See 28 U.S.C. § 2244(b).

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No later than January 18, 2013, Alvarez must file an amended petition that asserts all

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of his claims regarding the 2002 conviction. If he does not file an amended petition by that date,

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the court will assume that he truly wishes to have the court consider only the claim that he is

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actually innocent.

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Also, no later than January 18, 2013, Alvarez must file a completed in forma pauperis

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application or pay the $5.00 filing fee. Failure to file the application or pay the filing fee by the

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deadline will result in the dismissal of this action.

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IT IS SO ORDERED.

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DATED: December 12, 2012
SUSAN ILLSTON
United States District Judge

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