Alvarez v. Gipson

Filing 7

ORDER ON INITIAL REVIEW (Illston, Susan) (Filed on 5/20/2013)

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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 ON INITIAL REVIEW

v.
CONNIE GIPSON, warden,

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Respondent.
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INTRODUCTION

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George Alvarez, an inmate now at the Valley State Prison, filed this pro se action for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. He later filed an amended petition for writ

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of habeas corpus. His amended petition is now before the court for review pursuant to 28 U.S.C.

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§2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District

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Courts.

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BACKGROUND

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The amended petition provides the following information: Alvarez was convicted in

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Monterey County Superior Court of forcible rape, kidnapping for rape, robbery, and burglary

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with use of a weapon. On an unstated date, he was sentenced to 31 years to life in prison. He

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appealed. His conviction was affirmed by the California Court of Appeal in 2002. His petition

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for review was denied by the California Supreme Court. Later, Alvarez filed unsuccessful

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habeas petitions in state court. He then filed this action.

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DISCUSSION

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order

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directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. §

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2243. Under Rule 4 of the Rules Governing Section 2254 Cases In The United States District

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Courts, a district court may also order the respondent to file another pleading where neither

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summary dismissal nor service is appropriate.

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The amended petition alleges the following claims: (1) Alvarez is actually innocent of the

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charged kidnapping; (2) his right to due process was violated because there was insufficient

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evidence to support the robbery conviction; (3) his right to due process was violated by a juror's

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misconduct; (4) his right to due process was violated because there was insufficient evidence to

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support the imposition of the enhancement under California Penal Code § 667.61.

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The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became

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law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ

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of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital

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state convictions or sentences must be filed within one year of the latest of the date on which:

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(1) the judgment became final after the conclusion of direct review or the time passed for

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seeking direct review; (2) an impediment to filing an application created by unconstitutional

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state action was removed, if such action prevented petitioner from filing; (3) the constitutional

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right asserted was recognized by the Supreme Court, if the right was newly recognized by the

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Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate

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of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C.

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§ 2244(d)(1). Time during which a properly filed application for state post-conviction or other

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collateral review is pending is excluded from the one-year time limit. See id. § 2244(d)(2).

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The petition in this action was filed more than a year after petitioner's conviction became

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final, and may be untimely under the AEDPA's one-year limitation period. This apparent

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procedural problem should be addressed before the court reaches the merits of the claims raised

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in the petition. If the petition is time-barred, the litigants and court need not expend resources

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addressing the claims in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing

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Section 2254 Cases In The United States District Courts, respondent must either (1) move to

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dismiss the petition on the ground that it is untimely, or (2) inform the court that respondent is

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of the opinion that a motion to dismiss is unwarranted in this case.

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CONCLUSION

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Good cause appearing therefor,

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1.

The clerk shall serve by certified mail a copy of this order, the petition and the

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amended petition upon respondent and respondent's attorney, the Attorney General of the State

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of California. The clerk shall also serve a copy of this order on petitioner.

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2.

Respondent must file with the court and serve upon petitioner, on or before

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July 26, 2013, a motion to dismiss the petition or a notice that respondent is of the opinion that

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a motion to dismiss is unwarranted.

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If petitioner wishes to oppose the motion to dismiss, he must do so by filing an

opposition with the court and serving it upon respondent on or before August 23, 2013.

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4.

Respondent may file and serve a reply on or before September 6, 2013.

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5.

The motion will be deemed submitted as of the date the reply brief is due. No

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hearing will be held on the motion. If respondent notifies the court that a motion to dismiss is

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unwarranted or the motion to dismiss is decided against respondent, the court will then

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determine whether to require an answer to the petition.

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IT IS SO ORDERED.
DATED: May 20, 2013
SUSAN ILLSTON
United States District Judge

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