Kristin L. Hardy v. Kelly Santoro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN L. HARDY,
Petitioner-Appellant,
v.
KELLY SANTORO,
Respondent-Appellee.
No. 17-55243
D.C. No. 11-00948-GW (JEM)
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted February 4, 2019
Pasadena, California
Before: GOULD and NGUYEN, Circuit Judges, and BENITEZ,** District Judge.
Kristin Hardy appeals the district court’s denial of his petition for habeas
corpus under 28 U.S.C. § 2254. We affirm.
Following a trial by jury, Hardy was sentenced to 25-years-to-life in prison
under California’s Three Strikes Law for convictions of aggravated assault and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Roger T. Benitez, Senior United States District Judge for
the Southern District of California, sitting by designation.
FILED
MAR 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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inflicting corporal injury on a cohabitant. Hardy argues his counsel rendered
ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).
Specifically, Hardy claims that, if his attorney had discovered Hardy’s second prior
strike conviction and advised him of the resulting 25-years-to-life sentencing
exposure, he would have accepted the prosecution’s more lenient four-year plea
offer.
To demonstrate ineffective assistance of counsel and warrant habeas relief,
a petitioner must show both (1) his attorney’s performance was deficient and (2)
resulting legal prejudice. See Strickland, 466 U.S. at 687. On this record, Hardy
has not shown the first prong—that his attorney’s “representation ‘fell below an
objective standard of reasonableness’” as measured by “prevailing professional
norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S.
at 688). The record reflects that Hardy’s counsel requested Hardy’s chart report
from the District Attorney, who did not obtain the report until after Hardy rejected
the four-year plea offer. Likewise, the California Department of Corrections did
not mail Hardy’s prison records until after Hardy rejected the plea offer. The
record is devoid of evidence showing that, in Riverside County, Hardy’s counsel
would have had access to Hardy’s rap sheet prior to advising Hardy to accept the
four-year plea offer. Moreover, there is no evidence showing that Hardy’s counsel
knew of Hardy’s second strike until after the four-year plea offer expired.

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Thus, Hardy’s counsel’s performance did not fall below “an objective
standard of reasonableness” where he relied upon the information known to him
and the prosecution at the time of the preliminary hearing—that Hardy had a single
strike—and repeatedly advised Hardy to accept the four-year plea offer, a
favorable offer for a single strike offender. See Strickland, 466 U.S. at 688.
Because a showing on both Strickland prongs is required for habeas relief, the
district court correctly denied Hardy’s petition.
AFFIRMED.

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