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Andrade v. Yates

January 6, 2009


The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation


Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254(a). Before this Court are Petitioner's amended application for a writ of habeas corpus*fn1 (Doc. 18), Respondent's Answer (Doc. 28), and Petitioner's Traverse (Doc. 35). For the reasons discussed below, Petitioner's application will be DENIED.



On April 15, 2005, a Madera County Superior Court jury convicted Petitioner the following felony offenses: (1) fleeing from a pursuing peace officer while in a motor vehicle, a felony violation of Cal. Veh. Code § 2800.0(a); (2) resisting arrest by force or violence, in violation of Cal. Penal Code § 69; and, (3) assault with a deadly weapon or by force likely to cause great bodily injury on a peace officer, in violation of Cal. Penal Code § 245(c). Petitioner was found to have two prior serious felony convictions, in violation of Cal. Penal Code §§ 667(a)(1) and (b)(1). Petitioner was sentenced to serve an indeterminate sentence of thirty-one years to life in state prison for these offenses.*fn2


Petitioner filed a direct appeal of the judgment and conviction before the California Court of Appeal for the Fifth Appellate District. In its decision affirming the judgment, the Court of Appeal summarized the relevant facts as follows:

On the afternoon of April 12, 2004, Madera County Deputy Sheriff Chris Swanson was on patrol in his marked sedan. At 3:00 p.m. Deputy Swanson attempted to pull over [Petitioner] to make a traffic stop on Road 426. Swanson initially turned on the rotating blue and red overhead lights on his patrol vehicle. [Petitioner] did not pull over and Deputy Swanson then activated the siren. [Petitioner] ignored these signals and continued driving his 1991 Ford Mustang on Road 426. When [Petitioner] made a left turn, Swanson followed him onto Spook Lane. The latter was a narrow, winding mountainous roadway with no center line.

As Deputy Swanson continued his pursuit, he noted that [Petitioner] was driving at 35 miles per hour, too fast for road conditions. At one point, smoke emanated from the tires of the Mustang when [Petitioner] locked the brakes. [Petitioner] eventually made a right turn into a driveway off Spook Lane. He continued up the bumpy dirt driveway and then "rammed through a chain-link gate." [Petitioner] drove to the front yard of the house. "[T]here was enough room out front for him to try to turn back to the right and circle back out the driveway." [Petitioner] then applied power as he "tried" to make a turn back out to the right, and Swanson believed [Petitioner] "was going to run from that location." Swanson had stopped his patrol car on the right side of the parking area at the residence. As [Petitioner] turned around in the driveway and applied power, he went into a "power slide," "gravel spitting out ... the rear of his car" and collided the front passenger side of his Mustang into the front passenger side of the patrol vehicle.

Deputy Swanson got out of his patrol car, pointed his service weapon at [Petitioner], and ordered [Petitioner] to turn off the engine of the Mustang. [Petitioner] refused to comply, revved the motor of the Mustang, and attempted to put the car into gear. As he did so, smoke emanated from the engine compartment and [Petitioner's] sole passenger, Angela Coy, got out of the vehicle. Deputy Swanson extended his left hand and attempted to grab [Petitioner's] left arm. When Swanson was unable to grab [Petitioner], he placed his service firearm on the roof of the Mustang, used both of his hands, and attempted to pull [Petitioner] from the vehicle.

Deputy Swanson's efforts to remove [Petitioner] from the Mustang were unsuccessful. He next placed his firearm in the holster and noticed that [Petitioner] was still attempting to put the Mustang into gear. Swanson then struck [Petitioner] in the face and head with his right fist in an effort to stop [Petitioner] from fleeing. After Deputy Swanson hit [Petitioner] between five and seven times, [Petitioner] leaned his body over, put his feet up against the driver's side door, and attempted to push off from the driver's door. In doing so, [Petitioner] sought to escape through the open passenger door. When Swanson grabbed one of his feet, [Petitioner] said, "I give up." Deputy Swanson was then able to pull [Petitioner] out of the Mustang and handcuff him. Swanson placed [Petitioner] under arrest, searched the passenger compartment of the Mustang, and found a billy club between the driver's seat and the driver's door.

Andrade, 2007 WL 257963 at *2 (footnotes omitted).


On January 31, 2007, the California Court of Appeal affirmed Petitioner's conviction and modified his sentence. On April 11, 2007, the California Supreme Court summarily denied Petitioner's petition for review. Respondent has admitted that Petitioner exhausted his federal ...

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