Petition for Writ of Certiorari — Kristin L. Hardy, Petitioner v. Kelly Santoro, Acting Warden

Supreme Court briefAug 21, 2019

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No. _____________________________

_______________

__________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________ __________________

KRISTIN L. HARDY

PETITIONER

KELLY SANTORO,

RESPONDENT

__________________ ___________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_______________ __________________

TRACY J. DRESSNER

Counsel of Record

2629 Foothill Blvd. #324

La Crescenta, California 91214

(818) 426-0080

tdressner@sbcglobal.net

Attorney for Petitioner

Kristin Hardy

QUESTIONS PRESENTED

(1) Whether a federal appellate court fails to provide legitimate federal

habeas review when it rejects an ineffective assistance of counsel claim solely on the

performance prong, a prong never addressed by any state court or by the district

court, based on assumptions and findings of fact that are contrary to the petitioner’s

habeas allegations, that are not supported by the record before the court, and that

have never been the subject of an evidentiary hearing.

(2) Whether trial counsel involved in pre-trial plea negotiations has an

obligation to examine his client's prior criminal history and determine his client's

maximum sentencing exposure before advising him on a pending plea offer.

LIST OF PARTIES

All parties appear on the caption of the case on the cover page.

TABLE OF CONTENTS

Page

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

Procedural Background

Factual Background

Reasons for Granting the Petition

THIS COURT SHOULD GRANT THIS PETITION TO

DETERMINE WHETHER A COURT OF APPEALS

FAILS TO PROVIDE LEGITIMATE FEDERAL HABEAS

REVIEW WHEN IT AFFIRMS THE DENIAL OF

HABEAS CORPUS RELIEF ADDRESSING ONLY THE

PERFORMANCE PRONG OF AN INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIM, A PRONG NEVER

ADDRESSED BY ANY STATE COURT OR BY THE

DISTRICT COURT, AND DOES SO BASED ON

ASSUMPTIONS AND FINDINGS OF FACT THAT ARE

CONTRARY TO THE PETITIONER'S HABEAS

ALLEGATIONS, THAT ARE NOT SUPPORTED BY THE

RECORD BEFORE THE COURT, AND THAT HAVE

NEVER BEEN THE SUBJECT OF AN EVIDENTIARY

HEARING

II.

THIS COURT SHOULD GRANT THIS PETITION

BECAUSE THE COURT OF APPEAL'S RULING THAT

AN ATTORNEY HAS NO DUTY TO DETERMINE HIS

CLIENT'S POSSIBLE SENTENCING EXPOSURE

BEFORE ADVISING THE CLIENT ABOUT THE RISKS

AND BENEFITS OF A PLEA OFFER CONFLICTS WITH

CASES FROM THIS COURT AND OTHER COURTS

Conclusion

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INDEX TO APPENDICES

APPENDIX A

Order Denying Petition for Rehearing and Petition for Rehearing En Banc by the

United States Court of Appeals, Ninth Circuit filed July 5, 2019

APPENDIX B

Unpublished Memorandum Decision by the United States Court of Appeals, Ninth

Circuit filed March 14, 2019

APPENDIX C

Unpublished Order Adopting Magistrate Judge's Report & Recommendation and

Judgment (both filed February 21, 2017), and Report and Recommendation of

United States Magistrate Judge (filed September 2, 2015)

APPENDIX D

Unpublished Order by the California Supreme Court Denying Petition for Writ of

Habeas Corpus filed August 29, 2012

APPENDIX E

Unpublished Order by the California Court of Appeal Denying Petition for Writ of

Habeas Corpus filed February 25, 2011

APPENDIX F

Unpublished Order by the Riverside County Superior Court Denying Petition for

Writ of Habeas Corpus filed December 14, 2010

APPENDIX G

Unpublished Orders by the California Supreme Court Denying Review of Appeal

filed March 10, 2011

APPENDIX H

Unpublished Decision by the California Court of Appeal, Fourth District, Affirming

Convictions but Remanding for Sentencing Issues, filed December 29, 2010

-iv-

TABLE OF AUTHORITIES CITED

Page(s)

CASES:

Bethel v. United States, 458 F.3d 711 (7th Cir. 2006)

24, 25

Brazzel v. Washington, 491 F.3d 976 (9th Cir. 2007)

Carmichael v. People, 206 P.3d 800 (Colo. 2009)

Chioino v. Kernan, 581 F.3d 1182 (9th Cir. 2009)

Crawford v. Fleming, 323 F.Supp.3d 1186 (D. Or. 2018)

25, 26

Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986)

In re Alvernaz, 2 Cal. 4th 924 (1992)

Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003)

Lafler v. Cooper, 566 U.S. 156 (2012)

People v. Duvall, 9 Cal.4th 464 (1995)

Porter v. McCollom, 558 U.S. 30 (2009)

Riggs v. Fairman, 399 F.3d 1179 (9th Cir. 2005)

27, 28

Rompilla v. Beard, 545 U.S. 374 (2005)

Strickland v. Washington, 466 U.S. 668 (1984)

Townsend v. Sain, 372 U.S. 293 (1963)

Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002)

United States v. Day, 969 F.2d 39 (3d Cir. 1992)

24, 25

-v-

TABLE OF AUTHORITIES

Page(s)

United States v. Russell, 221 F.3d 615 (4th Cir. 2000)

United States v. Wilson, 719 F. Supp.2d 1260 (D. Or. 2010)

Wait v. State, 212 So.3d 1082 (Fla. 2017)

Williams v. Taylor, 529 U.S. 420 (2000)

21, 22

Ylst v. Nunnemaker, 501 U.S. 797 (1991)

MISCELLANEOUS:

28 U.S.C. § 2254

15, 21, 22

CA Penal Code section 667(c) & (e)

Ca Penal Code section 1170.12 (c) & (e)

https://www.riverside.courts.ca.gov/publicaccess.shtml

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No. _____________________________

_______________

__________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________ __________________

KRISTIN L. HARDY

PETITIONER

KELLY SANTORO,

RESPONDENT

__________________ ___________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_______________ __________________

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth Circuit.

-1-

OPINIONS BELOW

The unpublished opinion of the Court of Appeals appears at Appendix B with

the order denying petition for rehearing at Appendix A. The unpublished opinion

(including the Report and Recommendation) of the United States District Court

appears at Appendix C. The unpublished orders of the California Supreme Court

(habeas and appeal) appear at Appendix D & G. The unpublished opinions of the

California Court of Appeal (habeas and appeal) appear at Appendix E & H. The

unpublished decision of the Riverside County Superior Court (habeas) appears at

Appendix F.

JURISDICTION

The district court had jurisdiction of petitioner's habeas corpus petition under

28 U.S.C. §2254. The district court issued a Certificate of Appealability so the

federal court of appeals had jurisdiction under 28 U.S.C. §2253(c)(1). The federal

court of appeals entered judgment on March 14, 2019. App B. A timely petition for

rehearing and rehearing en banc was denied on July 5, 2019. App A. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2254 (d):

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.

Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy the right ... to have the

assistance of counsel for his defense.”

STATEMENT OF THE CASE

PROCEDURAL BACKGROUND

On July 29, 2009, a jury convicted petitioner Kristin Hardy of one count of

assault by force likely to produce great bodily injury (CA Pen. Code § 245(a)(1)), and

one count of corporal injury to a cohabitant (CA Pen. Code § 273.5(a)). The jury

acquitted Hardy of forcible rape, forcible oral copulation, and criminal threats, as

well as two lesser included charges of battery. In a separate proceeding, the court

found that Hardy suffered two prior convictions that constituted strikes.

Pursuant to the Three Strikes law, the court sentenced Hardy to 25 years to

life for the assault conviction and imposed but stayed a sentence of 25 years to life

for the corporal injury conviction.

On December 29, 2010, the Fourth District Court of Appeal affirmed Hardy's

convictions but ordered minor modifications to his sentence. App. H. On March 18,

2011, the California Supreme Court denied Hardy's petition for review. App. G.

On December 14, 2010, the Riverside Superior Court denied Hardy's pro per

petition for writ of habeas corpus in a reasoned decision. App. F.

On February 25, 2011, the Fourth District Court of Appeal summarily denied

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Hardy's pro per state habeas petition. App. E.

On August 29, 2012, the California Supreme Court summarily denied

Hardy's pro per state habeas petition without citation. App. D.

Hardy's federal habeas, which had been stayed pending his return to state

court for exhaustion, resumed in the district court. After the filing of the return and

the reply, the court appointed counsel for Hardy for his ineffective assistance of

counsel claim that was the subject of the state habeas petitions and which is the

subject of this petition for certiorari.

On September 2, 2015, following supplemental briefing by both sides, the

Magistrate Judge recommended that the district court deny Hardy's first amended

habeas petition. App. C.

On February 21, 2017, the district court entered an order adopting the

Magistrate Judge's Report and Recommendation and denying and dismissing the

petition. App. C. On that same date, the district court granted a certificate of

appealability on Hardy's ineffective assistance of counsel claim related to pretrial

plea negotiations.

On March 14, 2019, the Court of Appeals affirmed the denial of Hardy’s

habeas petition in an unpublished memorandum decision. App. B.

On July 5, 2019, the Court of Appeals denied Hardy’s petitions for panel

rehearing or rehearing en banc in an unpublished order. App. A.

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FACTUAL BACKGROUND

Trial Evidence1/

On August 27, 2005, Melissa Malone made a 911 call from a payphone at a

market. She told the operator, “[M]y boyfriend was beating me.” She named Hardy

as her boyfriend.

At 7:15 a.m., Officer Vicente De La Torre responded to the 911 call. When he

arrived, Malone was crying. She had a black eye and red “linear marks” on the sides

of her neck. He did not see any finger marks.2/ Photographs of Malone's injuries

were in evidence.

Malone told Officer De La Torre that Hardy came home around 3:00 or 4:00

a.m. He had been trying to phone her, and he was angry because the phone was off

the hook. He took a pink scarf, wrapped it around her neck, and strangled her with

it. Next, he choked her with his hands. He said, “I'm gonna kill you....” She lost

consciousness for a couple of seconds, but he slapped her and she came to.

Next, Hardy forced her to orally copulate him and then to have sexual

intercourse with him. Afterwards, he fell asleep. Malone thought for about an hour

about what to do, but once she decided to leave, she ran to the market.

The magistrate judge's report and recommendation copied verbatim the

statement of facts from the state court's appellate decision. App. C, quoting App. H.

Hardy also repeats those facts verbatim although he uses names to facilitate

reading and omits headings.

A paramedic who examined Malone, however, noted “[o]bvious marks from

hands around [her] neck....”

-5-

Officer De La Torre took Malone to the hospital, where a nurse performed a

sexual assault examination. Malone's right eye was bruised and swollen and there

were red marks around her neck. There was also a scratch on her wrist. She had no

injuries to her genitals, but this would be true 60 to 70 percent of the time when an

adult female reported a sexual assault.

Malone told the nurse that her boyfriend had wrapped a pink scarf around

her neck and choked her with it for 15 minutes. He also slapped her and hit her.

She “blacked out for a couple [of] seconds.” The sex consisted of intercourse and oral

copulation. It was stipulated that the DNA from sperm cells found in Malone's

vagina matched Hardy's DNA.

Hardy's mother testified that on August 27, 2005, around 7:00 or 8:00 a.m.,

Hardy had some scratches, and one of his lips was “burst or scratched.” Later that

morning, Hardy was arrested. Photos of his injuries showed a scratch on his neck

and a “busted” or bruised upper lip.

Malone later told Hardy's mother that she had punched Hardy in the face

“[o]ver a girl.” She also said that she had made up the rape charges.

In February 2006, Malone told a defense investigator that Hardy did not

force her to have sex. She had made up this allegation because she was upset about

a phone call from a girl. She also said that she had asked Hardy to choke her for

erotic purposes.

In late 2005 or early 2006, Malone gave defense counsel a letter (or

declaration) in which she said that the sex had been consensual.

-6-

In March 2006, Officer De La Torre, a deputy district attorney, and Malone

were in court together for a previous hearing. Malone told them, “Everything I said

in that letter was a lie.” She added that everything she had told Officer De La Torre

on the day of the incident was the truth.

The jury heard two phone calls that Hardy made to Malone while he was in

jail, one before and one after the previous hearing.

In the first call, on February 24, 2006, he told her to stop talking to “these

people,” adding, “[W]ould you rather me go to jail?”

He also told her, “[F]iling a false police report is only a misdemeanor, you're

going to get probation. Would you rather me go to prison or you get probation?”

“I know what I did was wrong,” he stated; “... I'm owning up to my

responsibility.”

In addition, he said, “[I]t's gonna have to go to prelim and I want you to be

ready. I want you to get that letter from my mom.3/ Don't forget, read over

everything. Memorize it like it's a movie script.”

In the second call, on April 18, 2006, Hardy said, “What I did was foul, it was

fucking wrong. It was stupid, it was sick.” He told Malone: “Go [into] hiding,

something[,] either that or call you an attorney and tell them you have a problem in

your hands, you got scared in ... making some false accusations. I know, the

accusations are real, but babe, just try to help me....”

Hardy's mother testified that defense counsel showed her the letter that

Malone had written, but she denied ever having a copy in her possession.

-7-

Between January and July 2007, Stephen Cline, Hardy's then-counsel, had a

number of phone calls and one meeting with Malone She told him that the sex had

been consensual. She had made up the sexual assault allegations because she was

angry. The pink scarf was used as part of the sex; “they had done this kind of thing

before....”

Hardy had hit her, she said, but she had started it, and she had hit him as

well. She explained that, in the jailhouse phone calls, they had been talking solely

about the domestic violence allegations.

Malone said she had lied at the preliminary hearing because the district

attorney's office told her, “You have to tell the story you told initially or you could

lose your child. You could go to jail for perjury....”

Roughly around March 2008, a defense investigator had a conversation with

Malone at court. Malone told the investigator that she had lied to the police about

the rape allegations. She also said she was afraid to change her story because a

prosecution investigator had threatened to charge her with perjury, which could

mean that she would go to jail and lose custody of her child. She did not say that

she was lying about the physical abuse.

At trial, Malone testified that she and Hardy had been living together since

June 2005. On the night of August 26-27, 2005, she was jealous because he had

been flirting with some women on a chat line. At 3:00 a.m., 4/ she woke up because

Although Malone did not mention it on direct, cross, or redirect, on recross, she

(continued...)

-8-

Hardy came into the bedroom. He asked, “Why didn't you answer the phone? I was

trying to call.” According to Malone, he was not angry. She realized that the phone

was off the hook.

They argued. During the argument, Hardy hit her in the eye with his fist,

giving her a black eye. She hit him back, causing his cut lip.

Hardy put a pink scarf around her neck and tightened it, causing red marks.

It hurt, but she testified that it did not make it hard to breathe. She did not lose

consciousness (though she admitted telling Officer De La Torre that she did). She

was hitting Hardy and “trying to push him off.”

After Hardy removed the scarf, he put his hands around her neck and

squeezed. She testified that he was not applying much pressure. The squeezing

lasted for less than a minute. It did not make it hard to breathe (though she

admitted telling Officer De La Torre that it did). Malone fell on the bed and

pretended to pass out so Hardy would take his hands off her neck. He slapped her,

but “not a hard slap, just like a pat to make sure I didn't pass out.”

After the argument, they had consensual sex, including both intercourse and

oral copulation (though she admitted telling Officer De La Torre that it was not

(...continued)

testified that Hardy had already hit her twice that night. First, when she and

Hardy initially got home, “I was cussing at him, and ... he was calm, and he hit me,

and then I hit him in his face.” Next, after Hardy went to sleep, Malone answered a

phone call from one of the women from the chat line. Malone yelled at Hardy; “[h]e

jumped, and then his hand hit [her] face.”

-9-

consensual).5/

Malone stayed in the apartment for about an hour, until Hardy was sound

asleep. She then went to the closest liquor store and called 911. About a week later,

she learned that she was pregnant with Hardy's child.

Malone testified that she lied to Officer De La Torre and the sexual assault

nurse because she was angry. What she said in the letter that she gave defense

counsel was “[w]hat really happened.”

According to Malone, she had contacted the prosecution several times to try

to “set the record straight.” Around the time of the preliminary hearing, however,

when she was at court, a man “came out of nowhere” and said he was “an advocate

of the judge....” He knew about the letter. He told her that if she changed her story,

she would go to jail for filing a false police report (or for perjury) and her child

would be taken away from her. As a result, she felt “pressured” to stick with the

story she had originally told Officer De la Torre.6/

[Hardy testified on his own behalf.] According to Hardy, on the night of the

incident, he was worried because Malone was not answering the phone. When he

got home, he found that it had been off the hook; he was not angry.

Malone testified that the pink scarf was not used during the sex-“[t]hat was

completely separate....” After being reminded, however, of her earlier statements,

she testified that it was used.

The trial court took judicial notice that a private attorney, not employed by

either the prosecution or the defense, had been appointed to advise Malone

regarding her rights, and it so instructed the jury.

-10-

At that point, they had consensual sex, including both intercourse and oral

copulation. Malone wanted “kinky sex”; at her request, Hardy put first a scarf and

then his hands around her neck. That “must have been” what caused the marks on

Malone's neck. She was never unconscious.

After that, Hardy phoned the chat line. This made Malone angry, and they

got into an argument. Hardy stopped it by going to sleep. He awoke because Malone

punched him in the face, which caused his “busted lip.” At first, he did not know

who had hit him. In self-defense, he started throwing punches; one of them hit

Malone and presumably caused her black eye.7/ She kept trying to hit him, so he

grabbed her wrists to restrain her. A further argument ensued. Eventually, Hardy

went back to sleep.

When Hardy heard that the police wanted to talk to him, he contacted them

voluntarily.

In the jailhouse conversations, when he said what he did was wrong, he

meant “his relationship with other women and the injury to [Malone's] eye.”

Plea Offer Evidence

When Hardy was first charged in this case in August 2005, the felony

On direct, Hardy testified that first, someone hit him; then, he threw a couple

of punches; and then, he heard Malone scream (inferably when one of the punches

connected). That was when he realized she was the person who hit him. On cross,

however, he testified, “she screamed while she was striking me. I hadn't hit her yet

when she screamed.” He admitted knowing who was hitting him. When the

prosecutor pointed out the contradiction and asked which version was the truth, he

said, “Whichever one. I guess you could say the first one.”

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complaint alleged that he had a prior robbery conviction in 2003 for which he served

a state prison sentence. That allegation would potentially add one-year to Hardy’s

sentence. The prosecution amended that complaint on October 25, 2005, and alleged

that the 2003 robbery conviction was also a serious felony that constituted a strike

under California’s Three Strikes law. That allegation would potentially result in the

doubling of Hardy’s sentence plus an additional five-year term.

Although Hardy was arrested on August 27, 2005, his preliminary hearing

was not held until March 23, 2006. During that intervening time, Hardy’s then

attorney, Riverside Deputy Public Defender Stuart Sachs, engaged in plea

negotiations with the prosecution. On December 2, 2005, the prosecution and the

defense jointly sought and received a trial continuance for “further investigation (ª

to consider offer ) (offer 4 yrs @ 80% was made by D.A.).”

On December 21, 2005, the court held a Marsden hearing.8/ Sachs told the

court he had been trying to resolve the case since October. At the time of the

hearing, Sachs had an offer from the prosecutor for Hardy to plead guilty to corporal

injury to a cohabitant in exchange for a low term sentence of two years, doubled to

four years for the strike, for which Hardy would serve 80% time. Sachs had counteroffered a plea to false imprisonment for the low term of 16 months doubled to 32

months, but the prosecutor refused to go lower than the four years at 80%.

Sachs noted that although he believed the case was triable, he was “doing

A Marsden hearing arises when a defendant seeks to replace appointed

counsel. See People v. Marsden, 2 Cal.3d 118 (1970).

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everything he could” to get it resolved. The court noted that Hardy’s exposure at

trial “as I’m sure Mr. Sachs explained to you,” would be “very high” if Hardy lost at

trial. The court advised Hardy to listen to Sachs, “a very experienced lawyer,”

because any offers made after the preliminary hearing were not likely to be as good.

Two months later the court held another Marsden hearing. Sachs reported

that they remained stuck in plea negotiations with the prosecution fixed on the four

year (two years doubled) deal. In the meantime, the prosecution had sought

continuances of the trial to talk to the alleged victim, Melissa Malone, who had

since recanted. The court declined to relieve Sachs as counsel, but granted Hardy’s

request to represent himself.

At no time during these plea negotiations did Sachs advise Hardy that he

had an uncharged prior conviction for assault that could be alleged as a second

strike raising Hardy’s sentence exposure to 25 years to life. Indeed, Sachs advised

Hardy that he could probably win at trial on all the charges except corporal injury

to a cohabitant and opined that even that charge might be defensible on a selfdefense theory. Thus, Sachs told Hardy that his maximum sentencing exposure was

nine years calculated as the high term of four years for the corporal injury count

doubled to eight years because of the prior strike, plus one year for having served a

prior prison term. Although Hardy had previously told Sachs he would accept the

four year offer, Hardy turned down the offer believing his chances at prevailing at a

trial were good and his sentencing risk not that great.

Two days after the second Marsden hearing, Hardy and Malone spoke on the

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phone in a call that was taped by the jail. During that call Hardy told Malone that

if she didn’t say anything he could beat the charges.

The next month the preliminary hearing was held, and Malone testified

consist with her initial report to the police and contrary to her signed recantation.

After the preliminary hearing, the prosecution filed an information that alleged just

the one robbery strike alleged in the earlier amended felony complaint.

On April 18, 2006, Hardy and Malone spoke again in a recorded phone call.

Hardy repeatedly told Malone that they took the deal off the table and if he was

convicted, he would be facing 37 years in jail.

In August 2006, the prosecution amended the information to add allegations

involving a second prior conviction strike: an assault with a deadly weapon

(straight edge razor and chair) in January 2001. That new allegation made Hardy’s

case a possible Three Strikes case with a minimum sentence of 25 years to life. See

Penal Code section 667 (c) & (e)(2)(A) and section 1170.12(c)(2)(A).

Although Hardy’s subsequent attorneys attempted to negotiate another plea

offer following this amendment, no acceptable offers were made and Hardy went to

trial. The jury acquitted Hardy of the two sex charges as well as the threats charge

but convicted him of assault and corporal injury to a cohabitant. In a court trial, the

court found that Hardy suffered two prior strike convictions. After the court denied

Hardy’s motion to strike one of his strike priors, the court sentenced Hardy

pursuant to the Three Strikes law to 25 years to life for the assault conviction and

stayed a sentence of 25 years to life for the corporal injury conviction.

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REASONS FOR GRANTING THE PETITION

THIS COURT SHOULD GRANT THIS PETITION TO DETERMINE

WHETHER A COURT OF APPEALS FAILS TO PROVIDE

LEGITIMATE FEDERAL HABEAS REVIEW WHEN IT AFFIRMS

THE DENIAL OF HABEAS CORPUS RELIEF ADDRESSING ONLY

THE PERFORMANCE PRONG OF AN INEFFECTIVE ASSISTANCE

OF COUNSEL CLAIM, A PRONG NEVER ADDRESSED BY ANY

STATE COURT OR BY THE DISTRICT COURT, AND DOES SO

BASED ON ASSUMPTIONS AND FINDINGS OF FACT THAT ARE

CONTRARY TO THE PETITIONER'S HABEAS ALLEGATIONS,

THAT ARE NOT SUPPORTED BY THE RECORD BEFORE THE

COURT, AND THAT HAVE NEVER BEEN THE SUBJECT OF AN

EVIDENTIARY HEARING

The federal court of appeals failed to provide Hardy the federal habeas corpus

review he is entitled to under 28 U.S.C. § 2254. In his state and federal habeas

petitions, Hardy argued that his attorney provided ineffective assistance of counsel

when he failed to investigate Hardy's criminal history during plea negotiations. As

detailed above, although counsel encouraged Hardy to take the four-year plea offer,

he never advised Hardy that his prior conviction for assault could be alleged as a

second strike raising Hardy's sentence exposure to 25 years to life if he was

convicted of any count. Without that knowledge, Hardy turned down a four year

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offer. The prosecution subsequently alleged a second strike but, by that time, the

prosecution would no longer honor the earlier offer. Hardy went to trial and

convicted of only two of the five counts against him, but he was sentenced to 25

years to life because of his two prior strikes.

Hardy raised this ineffective assistance of counsel claim in state habeas

petitions in the superior court, the appellate court, and the California Supreme

Court. In each court, Hardy alleged that his attorney violated his duty to

investigate Hardy’s maximum sentencing exposure and requested an evidentiary

hearing on that ineffective assistance of counsel claim. Indeed, in his reply to the

state’s informal response in the superior court, Hardy specifically sought an

evidentiary hearing to determine why his attorney had not advised him that he was

possibly facing a sentence of 25 years to life if he was convicted of any of the five

charges against him.

The superior court, in the only "reasoned" decision, denied the petition based

on a lack of prejudice:

The petitioner fails to establish prejudice in this case.

Petitioner has failed to establish a reasonable probability

that a more favorable outcome would have resulted but

for the complained about deficiencies of the attorney. In re

Cox (2003) 30 Cal.4th 974. App. F.

Both the state appellate court and the California Supreme Court summarily denied

(without comment or citation) Hardy’s habeas petitions containing this ineffective

assistance of counsel claim. App. D & E. Thus, the superior court denial based

solely on the prejudice prong was the operative opinion for federal habeas review by

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the district court and the court of appeals. Ylst v. Nunnemaker, 501 U.S. 797, 806

(1991).

If a federal habeas claim involves ineffective assistance of counsel and there

is a state court finding on the merits of only one of the two prongs, then the AEDPA

does not apply to the prong that was not adjudicated on the merits, and federal

review of that prong is de novo. Porter v. McCollom, 558 U.S. 30, 39 (2009).

The district court, without holding an evidentiary hearing, ruled that the

superior court's denial of Hardy’s ineffective assistance of counsel claim based on a

finding of no prejudice was not contrary to, or an unreasonable application of,

clearly established United States Supreme Court law nor was it based on an

unreasonable determination of facts based on the record before it. App. C. The

district court opted not to decide the performance prong because it found the state

court's finding of no prejudice to be reasonable. App. C.

Thus, when Hardy’s case arrived at the court of appeals, no prior court

--neither the state courts nor the district court– had ever addressed the merits of

the performance prong of Hardy’s ineffective assistance of counsel claim.

Nevertheless, despite the requirement of de novo review, and despite the failure of

both the state court and the district court to hold an evidentiary hearing and make

factual findings, the court of appeals found counsel’s performance to be reasonable

based on assumptions, factual findings never made in any court, and facts not

supported by the record before the court.

Specifically, the court relied on five “facts” or assumptions for which there is

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no support in the record:

First, the court wrote, “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.” App. B, at 3. Based on that statement

as well as a question asked at oral argument, it appears the court assumed that a

“chart report” was a rap sheet.9/ There is nothing in the record that supports such

an assumption. Indeed a search of every state and federal court database in

Westlaw for the phrase “chart report,” revealed not a single a reference to “chart

report” in any criminal case.10/ Thus, there is no basis for the court to have assumed

that Hardy’s attorney unsuccessfully sought a copy of Hardy’s rap sheet from the

prosecutor during the plea negotiation stage.

Second, the court wrote, “The California Department of Corrections did not

mail Hardy’s prison records until after Hardy rejected the plea offer.” App. B, at 3.

The mailing of the prison records was irrelevant. Both the prosecutor and Hardy’s

While discussing the chronology of plea negotiations during a pre-trial hearing,

Hardy’s attorney said,:

At the same time I emailed [the prosecutor] can you

please give me the chart report. She has not now been

able to obtain that. She said she would take the 32 month

offer to the supervisor. Nothing was done. ... .

There is nothing in the context of counsel’s statement that supports that he asked

the prosecutor for a rap sheet or for anything related to Hardy’s criminal history. If

the court felt that phrase was important, the appropriate procedure would be to

remand for an evidentiary hearing to determine what counsel was talking about.

10/

Every reference to a “chart report” involved a medical context.

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attorney could have searched Hardy’s criminal history by looking them up in the

Riverside County courthouse or in their own offices. Neither trial counsel nor the

prosecutor needed prison records to determine whether Hardy had prior convictions

and what those prior convictions entailed.

Third, the court wrote, “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.” App. B, at 3. The record is

equally devoid of evidence showing that Hardy’s counsel would not have had access

to information about Hardy’s prior convictions either through the Riverside County

courthouse or through the Riverside County Public Defender’s Office where Hardy‘s

attorney worked.11/ In fact, the Riverside County Public Defender represented

Hardy in a probation revocation proceeding arising from the very conviction that

was the basis for the second strike allegation that Hardy’s attorney failed to

discover. At best, the resolution of what Hardy’s counsel knew or could have known

or should have known should be resolved in an evidentiary hearing and not be

resolved by the court with no record-based facts to support the court’s assumptions.

Fourth, the court wrote, “There is no evidence showing that Hardy’s counsel

knew of Hardy’s second strike until after the four-year plea offer expired.” App. B,

11/

For a very nominal fee, Riverside County criminal case histories are available

on-line to the public: https://www.riverside.courts.ca.gov/publicaccess.shtml. Surely

if criminal case information is so easily available to the public, then Riverside

County criminal defense counsel must have access to their clients’ criminal history,

at least their prior history in Riverside County.

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at 3. That was exactly the point. Counsel should have looked into Hardy’s criminal

history and determined whether he had additional prior convictions that might

subject him to enhanced sentencing, such as another strike, but counsel did not do

so.

Fifth, the court concluded: “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.” App. B, at 3. This assumes,

without any factual basis, that the prosecutor did not know about Hardy’s second

strike at the time of the plea offer. An evidentiary hearing would likely prove that

assumption to be untrue. More importantly, this statement begs the essential

question of whether counsel could have and should have known that Hardy had a

second strike.

In finding that counsel’s performance was reasonable, the court failed to

acknowledge or apply the pleading requirements for California state habeas

proceedings and the well-established rules for holding evidentiary hearings in

habeas cases where the AEDPA does not apply. Under California law, a state

habeas petitioner's burden is "to plead sufficient grounds for relief, and then later to

prove them." People v. Duvall, 9 Cal.4th 464, 474 (1995) (emphasis in original). The

reviewing court then asks whether, assuming the petition’s factual allegations are

true, the petitioner would be entitled to relief. Id. at 474-475.

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In this case, Hardy specifically alleged in his state habeas petitions that his

attorney should have investigated and learned of Hardy’s possible second strike so

he could accurately advise Hardy about his potential maximum sentencing

exposure. Further, Hardy clearly and explicitly sought an evidentiary hearing to

determine what his attorney knew and should have known. Nevertheless, no state

court ordered an evidentiary hearing and no factfinding took place; the state courts

simply never addressed the performance prong of Hardy’s ineffective assistance of

counsel claim.

Likewise, although the district court never held an evidentiary hearing, that

court also never addressed the performance prong of Hardy’s ineffective assistance

of counsel claim.

The court of appeals, as the first court to consider the performance prong,

should have remanded the case for an evidentiary hearing if it doubted the

truthfulness of Hardy’s allegations. Significantly, respondent never proffered any

evidence that disputed Hardy’s allegation that his attorney could have and should

have investigated his prior criminal history.

The AEDPA generally bars an evidentiary hearing for habeas corpus

proceedings in federal court except under a few limited circumstances. 28 U.S.C.

§ 2254(e)(2). However, that bar applies only "If the applicant has failed to develop

the factual basis of a claim in State court proceedings." A petitioner meets this

condition only if "there is a lack of diligence, or some greater fault, attributable to

the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000).

-21-

"Diligence require[s] in the usual case that the prisoner, at a minimum, seek an

evidentiary hearing in state court in the manner prescribed by state law." Id. at

437. Absent a showing of a lack of due diligence, a petitioner will be excused from

showing compliance with the balance of the requirements of 28 U.S.C. § 2254(e)(2).

Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003).

Hardy met his pleading burden in his state habeas petitions by explaining

the factual and legal bases for his claim. Any failure to develop the facts more

adequately in state court cannot be attributed to him.

In a case such as this where Hardy alleged facts which, if true, would entitle

him to relief, there are material facts in dispute, and the state court has failed to

hold an evidentiary hearing, the federal court must hold an evidentiary hearing to

develop the facts and resolve factual disputes. Townsend v. Sain, 372 U.S. 293,

312-314 (1963), overruled in part on other ground by Keeney v. Tamayo-Reyes, 504

U.S. 1 (1992).

Here, the court affirmed the district court’s denial of Hardy’s habeas petition

based on factual assumptions that are not supported by the record and which are

directly contrary to Hardy’s allegations in his habeas petition. If the court disputed

Hardy’s allegations, then the proper resolution was to remand this case to the

district court for an evidentiary hearing on counsel’s performance. This Court

should grant certiorari because the court’s handling of Hardy’s petition is outside

the parameters of how this Court has defined federal habeas corpus review.

-22-

II.

THIS COURT SHOULD GRANT THIS PETITION

BECAUSE THE COURT OF APPEAL'S RULING THAT

AN ATTORNEY HAS NO DUTY TO DETERMINE HIS

CLIENT'S POSSIBLE SENTENCING EXPOSURE

BEFORE ADVISING THE CLIENT ABOUT THE RISKS

AND BENEFITS OF A PLEA OFFER CONFLICTS

WITH CASES FROM THIS COURT AND OTHER

COURTS

Prior convictions can play a fundamental role in California sentencing.

California has had a Three Strikes law since 1994. At the time of Hardy’s trial, the

Three Strikes law required a defendant who is convicted of any new felony and who

has also suffered one prior conviction of a serious felony to be sentenced to state

prison for twice the term otherwise provided for the new felony. If the defendant

had two or more prior strikes, the law mandates a state prison term of at least 25

years to life for any new felony conviction. CA Penal Code §§ 667(c) & (e) and

1170.12 (c) & (e). Thus, at the time of Hardy’s trial, the presence of prior felony

convictions that could qualify as a strike mattered significantly in terms of potential

sentencing.

Yet, despite the importance of prior convictions in determining sentencing

exposure, the court of appeals held in this case that trial counsel had no duty to

learn about Hardy’s prior convictions because the information would not have been

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available to counsel. As discussed above, the court had no factual basis for reaching

that conclusion. Further, the court’s legal premise --that an attorney advising his

client about a pre-trial plea offer has no duty to look into the client’s prior criminal

history to determine whether he faced a possible third strike-- is contrary to case

law from this Court and other courts.

“[C]ounsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances....” Strickland v. Washington,

466 U.S. 668, 691 (1984). During the plea bargaining phase, defense counsel must

inform the defendant of the maximum and minimum sentences that may be

imposed in the event of a conviction. In re Alvernaz, 2 Cal.4th 924, 937 (1992); In re

Vargas, 83 Cal.App.4th 1125, 1139 (2000). “Knowledge of the comparative sentence

exposure between standing trial and accepting a plea offer will often be crucial to

the decision whether to plead guilty.” United States v. Day, 969 F.2d 39, 43 (3d Cir.

1992).

Defense counsel are obligated to obtain information that the state has and

will use against the defendant. Rompilla v. Beard, 545 U.S. 374, 387 (2005). “A

reasonably competent lawyer will attempt to learn all of the relevant facts of the

case, make an estimate of a likely sentence, and communicate the results of that

analysis to the client before allowing the client to plead guilty.” Bethel v. United

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States, 458 F.3d 711, 717 (7th Cir. 2006).12/ “When representing a criminal client,

the obligation to conduct an adequate investigation will often include verifying the

status of the client's criminal record, and the failure to do so may support a finding

of ineffective assistance of counsel.” United States v. Russell, 221 F.3d 615, 621 (4th

Cir. 2000).

In a plea offer context, “Counsel cannot be required to accurately predict

what the jury or court might find, but he can be required to give the defendant the

tools he needs to make an intelligent decision.” Turner v. Calderon, 281 F.3d 851,

881 (9th Cir. 2002); see also Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986)

(“counsel have a duty to supply criminal defendants with necessary and accurate

information” so they can intelligently assess the advantages of a plea offer);

Crawford v. Fleming, 323 F.Supp.3d 1186, 1192-1193 (D. Or. 2018) (“In the context

of a plea offer, counsel must reasonably investigate and assess the potential

12/

Bethel discusses the need for a hearing when counsel’s sentencing advisements

are called into question. There, trial counsel failed to recognize that the defendant

was subject to the career offender provision of the federal sentencing guidelines;

thus, counsel significantly underestimated the defendant’s maximum sentencing

exposure when advising the defendant to plead guilty. Bethel, 458 F.3d at 712-715.

In analyzing the defendant’s subsequent ineffective assistance of counsel claim

under de novo review, the Seventh Circuit observed that although not conclusive, “a

gross mischaracterization of the sentencing consequences of a plea may strongly

indicate deficient performance.” Id. at 717. The court then highlighted the need for

a fact finding hearing to determine what steps counsel undertook to determine the

defendant’s sentencing exposure. Id. at 717-718; see also Day, 969 F.2d at 41,

(further hearing needed to determine whether trial counsel told defendant that his

maximum exposure was 11 years when his actual exposure as a career offender was

significantly higher and the defendant was ultimately sentenced to almost 22 years

after turning down a 5 year plea offer).

-25-

consequences and sentencing ramifications to ensure that a defendant makes an

informed decision whether to accept or reject a plea offer”).

The Crawford case is instructive. There, trial counsel repeatedly advised his

client not to accept various plea offers, including an offer of 200 months (~16½

years) because the client faced no more than a maximum sentence of 17-19 years

and the spread between the offers and the maximum sentence at trial was not great

enough to warrant taking the plea. As in Hardy’s case, counsel had not looked into

the client’s prior criminal history before providing this advice. After the client was

convicted, and based on the client’s juvenile and uncharged criminal conduct, the

recommended sentence was 475 months (39½ years). The court ultimately

sentenced the defendant to 396 months (33 years). Crawford, 323 F.Supp.3d at

1188-1190.

The court in Crawford found trial counsel’s failure to investigate the client’s

prior criminal history to constitute deficient performance. “Counsel did not fully

investigate petitioner's sentencing exposure before advising petitioner that he

would probably receive a sentence of 17 ½ years and “never” more than 20 years if

convicted at trial. Counsel's advice was not simply an inaccurate sentencing

prediction; it was a ‘gross mischaracterization of the likely outcome.’” Id. at 1194,

quoting Iaea, 800 F.2d at 865. The court concluded, “If counsel fails to reasonably

investigate or seek critical sentencing information and provides inaccurate or

misleading advice as a result, counsel's performance is deficient.” Id. at 1193.

-26-

Similarly, in a situation comparable to Hardy’s situation, the Ninth Circuit

previously held that counsel’s failure to learn about the defendant’s additional

strike priors constituted deficient performance because it caused counsel to

minimize the defendant’s sentencing exposure when the defendant was weighing a

plea offer. Riggs v. Fairman, 399 F.3d 1179 (9th Cir. 2005), reh’g en banc granted,

430 F.3d 1222 (9th Cir. 2005), appeal dismissed, 2006 WL 6903784 (9th Cir.

2006).13/ There, Riggs, facing a shoplifting charge that included an allegation of one

prior strike conviction, was advised by his attorney to reject a five year offer

because he was only facing a maximum sentence of nine years. In fact, Riggs

actually had four robbery convictions which could each be pled as a prior strike

leaving Riggs facing a Three Strike sentence of 25 years to life. Riggs turned down

the five year offer without knowing his true risk. Later, the prosecution added the

additional strike allegations. Riggs was unable to revive the plea; he went to trial

where he was convicted and sentenced to 25 years to life. Riggs, 399 F.3d at 1181,

13/

The disputed issue in Riggs that resulted in an order for en banc review was

the proper remedy: returning the parties to the plea bargain stage (the majority) or

specific performance of the original plea offer (as urged by the dissent). The panel

was unanimous in its ruling that Riggs was entitled to habeas relief for ineffective

assistance of counsel. Riggs, 399 F.3d at 1184-1186. According to the case docket

sheet, after this Court granted an en banc hearing, the parties settled the case and

the Court granted Riggs’ motion to dismiss the case.

Despite this subsequent history of Riggs, numerous courts, including this

Court, have cited Riggs even after the case was dismissed. See e.g., Lafler v. Cooper,

566 U.S. 156, 171, 172 (2012); Chioino v. Kernan, 581 F.3d 1182, 1184 (9th Cir.

2009); Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir. 2007); United States v.

Wilson, 719 F. Supp.2d 1260, 1275 (D. Or. 2010); Wait v. State, 212 So.3d 1082,

1090 (Fla. 2017); Carmichael v. People, 206 P.3d 800, 809 (Colo. 2009). Thus, the

holding and reasoning in Riggs continues to resonate in other courts.

-27-

1183.

The Riggs court found trial counsel’s failure to discover the additional strike

convictions to be constitutionally deficient given the severity of the possible

sentence exposure. Id. at 1183. “Simply stated, Riggs' counsel had a duty to

investigate whether California's three strikes law would be applicable to Riggs.

Riggs' counsel unjustifiably failed to discover such information in this case. Her

omission fell below an objective standard of reasonableness.” Id. Indeed, the court

specifically found that counsel performed egregiously in failing to obtain Riggs' rap

sheet and failing to seek sufficient information from Riggs about his prior robbery

convictions. Id. In so holding, the court focused on counsel's "duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary." Id., quoting Strickland, 466 U.S. at 691.

Hardy’s case is virtually indistinguishable from Riggs. There is nothing in

the record that supports that trial counsel ever advised Hardy that he could

potentially face a Three Strikes sentence. To the contrary, Hardy has stated

repeatedly under the penalty of perjury that counsel told him only two possible

sentences: around 30 years if he was convicted of everything and nine years if he

was convicted of corporal injury, the most likely count of conviction.

Because the court’s decision in this case is inconsistent decisions by this

Court and other courts, particularly the Riggs case which is no longer citable law,

this Court should grant certiorari and settle whether an attorney involved in plea

-28-

negotiations has a duty to conduct a reasonable investigate into a client’s possible

sentencing exposure, including looking into the client’s criminal history, to allow

the criminal defendant to make an informed plea decision. This Court should settle

this important question of counsel’s duties in these circumstances.

CONCLUSION

For the reasons set forth above, this Court should grant certiorari on these

two claims.

Dated: August 20, 2019

Respectfully submitted,