Little v. Crawford ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER C. LITTLE, 
Petitioner-Appellant, No. 05-15364
v.
 D.C. No.
CV-98-00394-DWH
JACQUELINE CRAWFORD; FRANKIE
SUE DEL PAPA, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
David W. Hagen, District Judge, Presiding
Argued and Submitted
December 7, 2005—San Francisco, California
Filed June 8, 2006
Before: Alex Kozinski and Barry G. Silverman,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Benitez
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
6263
6266 LITTLE v. CRAWFORD
COUNSEL
John C. Lambrose, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.
LITTLE v. CRAWFORD 6267
Victor-Hugo Schulze, II, Deputy Attorney General, Las
Vegas, Nevada, for the respondents-appellees.
OPINION
BENITEZ, District Judge:
Christopher Little, a Nevada state prisoner, appeals the dis-
trict court’s denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Little challenges his plea to two
counts of sexual assault on a minor under fourteen. He is now
serving two consecutive life terms with the possibility of
parole.
Little claims that: (1) he suffered ineffective assistance of
counsel; (2) he was impaired by medications when he entered
his plea and his counsel failed to investigate and inform the
court of the same; (3) his plea was not knowing and volun-
tary; (4) he was denied counsel at a contested hearing in juve-
nile court; and (5) the Nevada Supreme Court violated his
equal protection rights by failing to apply its existing case law
to him. The district court found claim (1) was procedurally
barred from review, and denied the remaining claims on the
merits.
The district court then certified claim (5)—Little’s equal
protection claim—for appeal and denied Certificate of
Appealability as to the remaining claims. We have jurisdic-
tion under 28 U.S.C. §§ 1291 and 2253, and affirm. Because
reasonable jurists would not find the district court’s assess-
ment of Little’s uncertified claims debatable or wrong, we
decline to expand the Certificate of Appealability as to those
claims. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). As
for Little’s equal protection claim, we find that the state
court’s denial of that claim was neither contrary to, nor an
unreasonable application of, clearly established Supreme
Court law.
6268 LITTLE v. CRAWFORD
I.
BACKGROUND1
In early 1990, Little was charged with multiple counts of
sexual assault of his daughter and son.2 Little decided to plea
guilty. After a lengthy plea canvass, Little pled to sexually
assaulting his daughter, and forcing his son to have sex with
his daughter. Little also admitted to committing these acts
when his children were under 14. In exchange, the state prom-
ised to dismiss four other counts at sentencing.
At the time of Little’s offense, under Nevada Revised Stat-
utes (“NRS”) 176.185(1), a person convicted of sexual assault
was ineligible for probation. See 1989 Nev. Stat., ch. 790,
§ 11, at 1887.3 The statutory sentence was life with the possi-
bility of parole in ten years. In October 1990, Little was sen-
tenced to two consecutive life terms with the possibility of
parole after ten years.
Little did not directly appeal his conviction. Instead, in
1991, Little filed a state petition for post-conviction relief in
the Nevada state district court. There, as related to this appeal,
he claimed that his plea was not knowing and voluntary
because he was not advised his offense was non-probational.
The Nevada state district court denied Little’s claim because
Little’s “concern at the plea hearing was not that he was fac-
1
Many of the facts and proceedings come from the state courts’ deci-
sions and our own independent review of the record. Many of the relevant
facts are undisputed, and the state court’s factual findings are adequately
supported by the record. See Tinsley v. Borg, 895 F.2d 520, 524-25 (9th
Cir. 1990) (“[T]he state court’s findings are entitled to a presumption of
correctness on federal habeas corpus review. This rule applies to the fac-
tual findings of both state trial and appellate courts.”).
2
Because of the victims’ ages and the crimes committed against them,
they will not be referred to by their actual names.
3
The current provision precluding probation for persons convicted of
sexual assault is NRS 176A.100(1)(a).
LITTLE v. CRAWFORD 6269
ing non-probationable life sentences, but only that they run
concurrent.” Then, applying the totality of the circumstances
test under Bryant v. State, 721 P.2d 364 (Nev. 1986) (per
curiam), the court found Little’s plea was not coerced and Lit-
tle “was thoroughly canvassed . . . regarding his case, relevant
law, the plea bargain and potential sentence.” In 1992, Little
appealed that decision to the Nevada Supreme Court. That
court found that although Little was not told he was ineligible
for probation, his plea was knowing and voluntary because
“the record show[ed] that [Little] was warned that he would
have to spend ten years in prison at a bare minimum.”
Little next filed a state petition for habeas relief in the
Nevada state district court, which was denied. Little appealed
that denial to the Nevada Supreme Court. The Nevada
Supreme Court dismissed the appeal on procedural grounds.
Little then filed his first federal habeas petition. But
because his petition contained an unexhausted claim, Little
voluntarily dismissed his petition so that he could exhaust that
claim by returning to state court.
Little then filed a “petition for extraordinary writ” with the
Nevada Supreme Court, raising his unexhausted claim that he
“was denied Equal Protection under . . . the 14th Amendment,
when the Nevada Supreme Court did not apply the law to him
in the same manner as to others similarly circumstanced.”
Specifically, Little asserted, the Nevada Supreme Court had
vacated other defendants’ pleas when they were not told that
probation was not available, while denying him the same
relief. On May 22, 1998, the Nevada Supreme Court summa-
rily denied the petition.
The instant petition followed. After reviewing Nevada’s
caselaw on advising defendants that their sentences were non-
probational, the federal district court appointed counsel for
Little and certified the following question to the Nevada
Supreme Court: “Is a conviction of sexual assault infirm when
6270 LITTLE v. CRAWFORD
it is based on a guilty plea in which the defendant was advised
of the mandatory minimum sentence but was not advised that
the crime was nonprobationable? (See Meyer v. State, 95 Nev.
885 (1979); Aswegan v. State, 101 Nev. 760 (1985); Skinner
v. State, 113 Nev. 49 (1997)).” Little filed a brief and a sup-
plemental brief, which included the transcript of his change of
plea hearing as an exhibit.
The Nevada Supreme Court answered:
[T]he [trial] court’s failure to advise a defendant that
he was ineligible for probation does not warrant
reversal where the totality of the circumstances dem-
onstrate that the defendant was aware, at the time he
pleaded guilty, that he would be serving an actual
prison term because he was ineligible for probation.
Little v. Warden, 34 P.3d 540, 546 (Nev. 2001) (en banc) (per
curiam). In so answering, the Nevada Supreme Court affirmed
its prior holdings that “a defendant must be aware that his
offense is nonprobational prior to entering his guilty plea
because it is a direct consequence arising from the plea.” Id.
at 542. But the court “emphasize[d] that in considering
whether a particular defendant was aware that he was ineligi-
ble for probation, [the Nevada courts] need not and do not
focus on ‘talismanic phrases.’ Rather, [the courts] review the
entire record and consider the totality of the facts and circum-
stances surrounding the plea in order to ensure that a defen-
dant was aware that his offense was nonprobational.” Id. The
Nevada Supreme Court acknowledged some confusion in its
caselaw, but held that:
To the extent that Meyer, Heimrich, and Aswegan
support a contrary proposition—that the district
court’s lack of advisement on the record about non-
probationality is “manifest error,” a “fatal defect”, or
otherwise reversible as a matter of law—they are
hereby overruled. We modify Meyer and its progeny
LITTLE v. CRAWFORD 6271
in this regard—the district court’s failure to advise a
defendant that he is ineligible for probation is error,
but it is not always reversible error.
Id. at 544.
The Nevada Supreme Court also acknowledged Little’s
equal protection argument: “In the [federal] petition, [Little]
argued that his right to equal protection had been violated
because this court treated him differently than other persons
convicted of sexual assault by failing to apply its existing case
law to him.” Id. The court then concluded that the relief Little
requested was not warranted. Id. at 546 n. 39.
After the Nevada Supreme Court’s decision, Little’s pres-
ent petition was reopened. In December 2004, the district
court denied the petition and certified Little’s equal protection
claim for appeal. This appeal followed.
II.
STANDARD OF REVIEW
We review de novo the district court’s decision to grant or
deny a 28 U.S.C. § 2254 habeas corpus petition. See Lambert
v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004), cert. denied,
126 S. Ct. 484 (2005). Because Little filed his habeas petition
after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), its provisions apply.
See Woodford v. Garceau, 538 U.S. 202, 207 (2003). Under
AEDPA, a petitioner is entitled to habeas relief only if the
state court’s decision “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court” or
was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2).
6272 LITTLE v. CRAWFORD
III.
DISCUSSION
In state court, Little argued that his plea was not knowing
and voluntary, in part, because the trial judge did not inform
Little on the record that he was ineligible for probation. The
Nevada Supreme Court denied Little’s claim because “the
record show[ed] that [Little] was warned that he would have
to spend ten years in prison at a bare minimum.” Little claims
the Nevada Supreme Court denied him equal protection
because it failed to apply its existing case law to him. As sup-
port, he relies on the Nevada Supreme Court’s decisions in
Meyer v. State, 603 P.2d 1066 (Nev. 1979), Aswegan v. State,
710 P.2d 83 (Nev. 1985) (per curiam), and Skinner v. State,
930 P.2d 748 (Nev. 1997) (per curiam). In these cases, the
Nevada Supreme Court set aside the defendants’ sexual
assault pleas because they were not informed, on the record,
that probation was not available for their crimes.
Little presented his equal protection claim in a “petition for
extraordinary writ” to the Nevada Supreme Court. That court
summarily denied the petition: “We have reviewed the docu-
ments on file with this court, and we conclude that our inter-
vention [or] . . . relief requested is not warranted.
Accordingly, we deny this petition.” No other state court
issued a reasoned decision on Little’s equal protection claim.
Thus, on independent review, we find that the state court’s
conclusion was not an unreasonable application of clearly
established federal law. See Delgado v. Lewis, 223 F.3d 976,
982 (9th Cir. 2000).
We first address the Nevada Supreme Court’s ruling under-
lying Little’s equal protection claim—Little’s plea was know-
ing and voluntary even though the trial court did not advise
him on the record that he was ineligible for probation.4 We
4
This claim was not certified for appeal. However, the issue is “predi-
cate to an intelligent resolution of the question presented.” Ohio v. Robi-
nette, 519 U.S. 33, 38 (1996) (internal quotation marks omitted). We thus
address it in so far as it relates to Little’s equal protection claim.
LITTLE v. CRAWFORD 6273
find that this ruling was neither contrary to, nor an unreason-
able application of, clearly established Supreme Court law.
A. Little’s Plea Was Knowing And Voluntary.
[1] A habeas petitioner bears the burden of establishing that
his guilty plea was not voluntary and knowing. See Parke v.
Raley, 506 U.S. 20, 31-34 (1992). Simply put, Little has failed
to meet that burden.
In Boykin v. Alabama, the Supreme Court established the
governing standard for determining whether a plea is knowing
and voluntary. 395 U.S. 238, 242-43 (1969).
[2] “A plea is voluntary [and intelligent] only if it is entered
by one fully aware of the direct consequences of his plea
. . . .” United States v. Amador-Leal, 276 F.3d 511, 514 (9th
Cir. 2002) (citation and internal quotation marks omitted). “A
consequence is ‘direct’ where it presents ‘a definite, immedi-
ate and largely automatic effect’ on the defendant’s range of
punishment.” United States v. Kikuyama, 109 F.3d 536, 537
(9th Cir. 1997) (quoting United States v. Wills, 881 F.2d 823,
825 (9th Cir. 1989)); see also Torrey v. Estelle, 842 F.2d 234,
236 (9th Cir. 1988) (“The distinction between a direct and
collateral consequence of a plea turns on whether the result
represents a definite, immediate and largely automatic effect
on the range of the defendant’s punishment.”). Thus,
“[b]efore a court may accept a defendant’s guilty plea, the
defendant must be advised of the range of allowable punish-
ment that will result from his plea.” Id. at 235 (citation and
internal quotation marks omitted). “The essential ingredient is
notice of ‘the maximum possible penalty provided by law.’ ”
United States v. Barrios-Gutierrez, 255 F.3d 1024, 1027 (9th
Cir. 2001) (quoting Fed. R. Crim. P. 11(c)).
According to clearly established Supreme Court law, to
determine whether a defendant was so advised, we must con-
6274 LITTLE v. CRAWFORD
sider the totality of the circumstances. See Brady v. United
States, 397 U.S. 742, 749 (1970).
[3] Having done so, we are convinced that his plea was
knowing and voluntary. Little was fully advised of his consti-
tutional rights. During the plea canvass, the trial judge con-
ducted a careful and searching inquiry to ensure that Little
understood both the charges against him and the conse-
quences of his plea. In response to the court’s careful ques-
tioning, Little unmistakably affirmed that he had discussed
the nature and circumstances of the offense with his attorney;
that his attorney had explained the maximum penalty the
court could impose; that no promise of reward or special treat-
ment had been made to him (including a promise for a lesser
sentence of probation); that he understood the essential allega-
tions of the charge and that his plea was an admission of those
elements; that he understood he was giving up his rights to a
jury trial and to confront the witnesses against him; and that
he was pleading guilty because he was guilty and for no other
reason.
[4] Little also expressed satisfaction with his attorney’s rep-
resentation, and stated numerous times that he was certain he
wanted to plead guilty. The record contains no evidence of
coercion. The trial court repeatedly informed Little that he
was entitled to a trial. Little declined.
[5] The record further shows that Little was alert and
responsive to the court’s questions and understood the pro-
ceedings. Little had an opportunity to discuss the evidence
with his attorney and to think about his decision. Moreover,
as the state court found, Little “admitted his guilt to Nevada
State Welfare, to his wife, to his friend, to the Department of
Parole and Probation, and finally to the court.” Little does not
even attempt to rebut the state court’s factual findings. The
record further reveals that Little admitted in court that he had
sexual intercourse with his daughter and forced his son and
daughter to have sex. Little’s “[s]olemn declarations in open
LITTLE v. CRAWFORD 6275
court carry a strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977).
[6] It is clear that Little was aware that probation was not
an option. For example, when asked whether he understood
the range of sentences he faced, Little answered “10 years to
life.” The prosecutor said that was incorrect because Little
faced two life sentences, each requiring a minimum of 10
years imprisonment before parole eligibility, so Little faced a
minimum of 20 years imprisonment if the court made the life
sentences consecutive. The court then stated: “So that could
be a minimum of 20 years. The minimum is 20 years” and
asked Little, “Do you understand that?” Little answered,
“Yes, Your Honor. I was also under the impression by [my
attorney] that they possibly may be able to run concurrent.”
Acknowledging that was correct, the court then warned Little:
“[O]n the minimum side you would have to serve at least 10
[years] if the two life sentences ran concurrently before you’d
be eligible for parole. Do you understand this?” Little
answered, “Yes, Your Honor, I do.”
As the state court found: “It appears that [Little] understand
[sic] the range of punishment he was facing better than the
prosecutor herself: with concurrent sentences, he could possi-
bly have been paroled after only 10 years, and although life
sentences may be run consecutively, no one can serve longer
than the span of his or her life.” Indeed, it appears from the
foregoing that Little’s concern was largely that his sentences
run concurrently. The record does not indicate that Little gave
any weight to whether he would be eligible for probation in
deciding to plead.
Further, at Little’s plea hearing, in support of remanding
Little into custody, the prosecutor argued “that [Little] now
has admitted to two crimes which will result in his imprison-
ment for the remainder of his natural life . . . .” The trial court
then ruled that “[i]n view of the mandatory penalty and the
finding of guilt in this case and the admission of guilt . . .
6276 LITTLE v. CRAWFORD
[t]he defendant is remanded to the custody of the Sheriff
. . . .” In face of these statements, Little remained silent; and
neither Little nor his counsel ever objected.
[7] In sum, Little was properly advised of his rights and the
relevant consequences of his plea, including the maximum
punishment he was going to receive. There is nothing in the
record to overcome the presumption that he pled voluntarily
and intelligently. The Nevada Supreme Court’s finding that
Little’s plea was knowing and voluntary was neither contrary
to, nor an unreasonable application of, clearly established
Supreme Court law.
B. Little’s Equal Protection Claim Also Fails.
Little claims the Nevada Supreme Court denied him equal
protection by failing to apply its existing case law to him. Lit-
tle claims in its 1992 ruling the Nevada Supreme Court should
have set aside his plea because he was not told, on the record,
that he was ineligible for probation. Thus, Little’s argument
rests on the proposition that, on or before 1992, the Nevada
Supreme Court always found that a plea was per se invalid
where the defendant, who was ineligible for probation, was
not so advised on the record and the trial court was required
to use talismanic phrases to ensure a defendant is so aware.
Even if true, Little is not entitled to habeas relief on this basis.
[8] Little’s claim, at most, amounts to an allegation that in
his case Nevada law was misapplied or that the Nevada
Supreme Court departed from its earlier decisions. Under
clearly established Supreme Court law, such contention nei-
ther gives rise to an equal protection claim, nor provides a
basis for habeas relief.5 See Beck v. Washington, 369 U.S.
541, 554-55 (1962); see also Estelle v. McGuire, 502 U.S. 62,
5
Outside the habeas context, the Supreme Court has recognized that
inconsistent application of state law can give rise to an equal protection
claim. See Bush v. Gore, 531 U.S. 98, 103 (2000) (per curiam).
LITTLE v. CRAWFORD 6277
67-68 (1991) (“We have stated many times that federal
habeas corpus relief does not lie for errors of state law.
Today, we reemphasize that it is not the province of a federal
habeas court to reexamine state-court determinations on state-
law questions.”) (citations and internal quotation marks omit-
ted). Stated differently, the Supreme Court has long settled
that the Fourteenth Amendment does not assure immunity
from judicial error or uniformity of judicial decisions. See
Milwaukee Elec. Ry. & Light Co. v. State of Wisconsin ex rel.
City of Milwaukee, 252 U.S. 100, 106 (1920) (“[T]he Four-
teenth Amendment does not, in guaranteeing equal protection
of the laws, assure uniformity of judicial decisions.”); see also
Central Land Co. of West Virginia v. Laidley, 159 U.S. 103
(1895).
In Beck v. Washington, the Supreme Court refused to find
constitutional error in the alleged misapplication of Washing-
ton law by Washington courts. The petitioner’s “argument
under the Equal Protection Clause [was] that Washington has
singled out petitioner for special treatment by denying him the
procedural safeguards the law affords others to insure an
unbiased grand jury.” 369 U.S. at 554. In rejecting petition-
er’s claim, the Supreme Court held:
[E]ven if we were to assume that Washington law
requires such procedural safeguards, the petitioner’s
argument here comes down to a contention that
Washington law was misapplied . . . . We have said
time and again that the Fourteenth Amendment does
not assure uniformity of judicial decisions . . . [or]
immunity from judicial error . . . . Were it otherwise,
every alleged misapplication of state law would con-
stitute a federal constitutional question.
Id. at 554-55 (citations and internal quotation marks omitted)
(alterations, except the first, in original).
This Circuit followed Beck in Alford v. Rolfs, 867 F.2d
1216 (9th Cir. 1989). In Alford, the petitioner “argue[d] that
6278 LITTLE v. CRAWFORD
the Washington Court of Appeals denied him equal protection
of the laws by treating him differently from other Washington
defendants who appeal habitual criminal findings.” Id. at
1218-19. Petitioner also “refer[red] [the panel] to Washington
case law, where defendants appealing habitual criminal find-
ings ha[d] succeeded in obtaining reversal of the findings”
under similar circumstances. Id. Relying on Beck v. Washing-
ton, the court found that petitioner’s “equal protection claim
[was] without merit” Id.
[9] Against this backdrop, Little cannot establish an equal
protection claim warranting habeas relief, simply because, or
if, the Nevada Supreme Court misapplied Nevada law or
departed from its past precedents. “[A] violation of state law
standing alone is not cognizable in federal court on habeas.”
Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000) (cit-
ing Estelle, 502 U.S. at 67).6
[10] Rather, Little must show that the Nevada Supreme
Court’s decision somehow “violated the Constitution, laws, or
treaties of the United States.” See Estelle, 502 U.S. at 68. This
he might have been able to do if the Nevada Supreme Court’s
alleged error constituted “a fundamental defect which inher-
ently result[ed] in a complete miscarriage of justice,” or “ex-
ceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.” Short v.
6
To be sure, Little’s claim may also implicate his due process rights.
However, even under that analysis, that he “may have shown a variance
with the state law . . . is not a federal question. We cannot treat a mere
error of state law, if one occurred, as a denial of due process; otherwise,
every erroneous decision by a state court on state law would come here
as a federal constitutional question.” Hughes v. Heinze, 268 F.2d 864, 869-
870 (9th Cir. 1959) (citation and internal quotation marks omitted); see
also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (holding that
a petitioner may not “transform a state-law issue into a federal one merely
by asserting a violation of due process,” and that “alleged errors in the
application of state law are not cognizable in federal habeas corpus” pro-
ceedings).
LITTLE v. CRAWFORD 6279
Garrison, 678 F.2d 364, 369 (4th Cir. 1982) (citation and
internal quotation marks omitted); see also Estelle, 502 U.S.
at 75. But such circumstances are not present here. As
explained above, under clearly established federal due process
standards, Little’s plea was knowing and voluntary. Were we
to find otherwise simply because he was not told that he was
ineligible for probation, we would “be exalting form over sub-
stance[.]” Beck, 369 U.S. at 555. And such a finding would
be “contrary to [the Supreme Court’s] previous application of
the Equal Protection Clause.” Id. (citation omitted).
Little’s reliance on Myers v. Ylst, 897 F.2d 417 (9th Cir.
1990), is inapposite. Myers held that “once [a state court] has
established a rule it must apply it with an even hand.” Id. at
421 (citation and internal quotation marks omitted). “The
equal protection clause prohibits a state from affording one
person . . . the . . . benefit of a ruling . . . while denying it to
another.” Id.; see also Powell v. Ducharme, 998 F.2d 710, 716
(9th Cir. 1993) (“The Equal Protection Clause prohibits a
state from applying a rule of law retroactively in some cases
but not others, absent a rational basis for doing so.”).
The circumstances in Myers are nothing like Little’s. In
Myers, the state court established a rule and applied it retroac-
tively to a case, while refusing to apply the same rule in
another identical case. Here, the Nevada Supreme Court had
never established that a plea was per se invalid where the
defendant was not advised on the record that he was ineligible
for probation; nor did it require a trial court to use talismanic
phrases to ensure a defendant was so aware. Indeed, the oppo-
site is true.
As noted, Little claims the Nevada Supreme Court denied
him equal protection because its ruling was inconsistent with
its decisions in Meyer v. State, 603 P.2d 1066 (Nev. 1979),
Aswegan v. State, 710 P.2d 83 (Nev. 1985) (per curiam), and
Skinner v. State, 930 P.2d 748 (Nev. 1997) (per curiam). The
Nevada Supreme Court acknowledged that there was some
6280 LITTLE v. CRAWFORD
confusion in its caselaw, and acted to clear it away: “To the
extent that Meyer, Heimrich, and Aswegan support a contrary
proposition . . . they are hereby overruled. We modify Meyer
and its progeny . . . .” Little, 34 P.3d at 544. We read this
statement as an exercise of the Nevada Supreme Court’s
power to clean up loose language in its prior opinions, not as
an admission that Nevada’s caselaw was in conflict.
[11] In any event, whether a conflict in state caselaw is sub-
stantial enough to constitute a violation of the Equal Protec-
tion Clause is a federal question, we are not bound by the
state’s view on the issue. State courts may well choose to cure
tensions in their caselaw, and unless those tensions are suffi-
ciently grave, we are not to correct errors of state law on fed-
eral habeas review. See Estelle, 502 U.S. at 67-68. A close
examination of the Nevada caselaw reveals that Nevada’s
cases were not in sufficiently grave conflict to deny Little
equal protection under the federal Constitution.
In Meyer, the defendant argued that “his guilty plea was not
entered voluntarily and intelligently because he was not
informed, on the record, that probation is not available to one
convicted of sexual assault.” 603 P.2d at 1066. The court
agreed, holding that the “acceptance of [defendant’s] guilty
plea was fatally defective because the record [was] devoid of
any indication that [he] was informed that sexual assault is not
a probational offense.” Id. at 1067. Meyer then concluded that
“when an offense is not probational, the district judge has a
duty to insure that the record discloses that the defendant is
aware of that fact.” Id. But the Meyer court did not specifi-
cally set forth what, if anything, the defendant was told about
the minimum or maximum sentence he would have to serve
as a result of pleading guilty.
In Aswegan, “[p]ursuant to a plea bargain, [defendant]
pleaded guilty to four counts of sexual assault.” 710 P.2d at
83. On appeal, the defendant “argue[d] that his guilty plea
was not entered voluntarily and intelligently because he was
LITTLE v. CRAWFORD 6281
not informed, on the record, that probation is not available to
one convicted of sexual assault.” Id. Relying on Meyer, the
court held that the “manifest injustice created by the district
court’s failure to inform appellant that probation was not a
possibility in his case may be corrected by setting aside the
conviction and allowing appellant to withdraw his guilty
plea.” Id. Like Meyer, Aswegan did not specifically set forth
what, if anything, the defendant was told about the minimum
or maximum sentence he would have to serve as a result of
pleading guilty.
In Skinner, the defendant was charged with sexual assault.
930 P.2d at 749. “During the [plea] canvass, the district court
failed to inform [the defendant] that sexual assault was not a
probationable offense.” Id. Thus, defendant argued “that his
guilty plea was defective because he was not informed that
probation was not available for the crime of sexual assault.”
Id. Relying on Meyer and Aswegan, the court agreed and
remanded the case back to the trial court so that the defendant
could withdraw his guilty plea. Id. at 750 (“We conclude that
pursuant to Meyer and Aswegan, the district court should have
granted Skinner’s petition and allowed him to withdraw his
guilty plea.”). “The state argue[d] that [defendant] knew that
probation was not available because the plea agreement said
that he understood that he could be imprisoned for a period
of not less than five years.” Id. at 749. The court disagreed:
This language in the plea agreement is insufficient
because it does not affirmatively show that Skinner
was informed that probation was not available. Fur-
ther, an understanding that the minimum sentence
for a crime is five years is very different from under-
standing that probation is not available.
Id. at 749.
However, the Nevada Supreme Court did not always find
that a plea was per se invalid where the defendant was not
6282 LITTLE v. CRAWFORD
advised on the record that he was ineligible for probation or
require a trial court to use talismanic phrases to ensure a
defendant was so aware. Even before its 1992 decision in Lit-
tle’s case, the Nevada Supreme Court had applied another less
stringent test than the apparent per se rule in Meyer, Aswegan,
and Skinner. Specifically, as early as 1986, the court had held
that “[i]t shall . . . be the duty of the trial court to review the
entire record to determine whether the plea was valid, either
by reason of the plea canvass itself or under a totality of the
circumstances.” Bryant, 721 P.2d at 368. Bryant explained:
[W]hile we believe trial courts should in all circum-
stances conduct sufficient and thorough plea can-
vasses, as an appellate court reviewing the validity
of a plea, we cannot be constrained to look only to
the technical sufficiency of a plea canvas [sic] to
determine whether a plea has been entered with a
true understanding of the nature of the offense
charged. As the United States Supreme Court has
recognized, an appellate court should review the
entire record, and look to the totality of the facts and
circumstances of a defendant’s case, to determine
whether a defendant entered his plea with an actual
understanding of the nature of the charges against
him.
Id. at 367. Bryant further held that the Nevada Supreme Court
“has never required the ‘articulation of talismanic phrases’ at
plea hearings . . . [but has] instead been flexible in terms of
permitting a district judge wide latitude in fulfilling the above
requirements.” Id.; see also Iverson v. State, 807 P.2d 1372,
1375 (Nev. 1991) (“A determination of whether the defendant
understood the nature of the charge will be made by using the
totality of the circumstances approach, whether the facts are
contained in the plea canvas [sic] or at other stages of the pro-
ceedings.”). It appears that the Nevada Supreme Court in Lit-
tle’s case based its decision not on Meyer and Aswegan, but
on the “totality of the circumstances” test it espoused in Bry-
LITTLE v. CRAWFORD 6283
ant. The lower state court’s application of Bryant’s “totality
of the circumstances” test in denying Little’s claim supports
our conclusion. See Williams v. Rhoades, 354 F.3d 1101,
1106 (9th Cir. 2004) (“We review the last reasoned decision
of the state court, which in this case was made by the state
court of appeal. But because that court examined and adopted
some of the trial court’s reasoning, the trial court ruling is also
relevant.” (citation omitted)).
Indeed, before the Nevada Supreme Court’s 1997 Skinner
decision, discussed above, in 1995 the Nevada Supreme Court
held that “the fact that the [state] district court did not affir-
matively state that probation was not a sentencing option . . .
was not prejudicial error because the district court took other
steps to ensure that [defendant] was aware, even if by impli-
cation, that probation was not a sentencing option.” Riker v.
State, 905 P.2d 706, 710 (Nev. 1995). As does Little, the
defendant in Riker also relied on Aswegan and Meyer. Id. at
710 (defendant “cites Aswegan v. State, 101 Nev. 760, 710
P.2d 83 (1985), and Meyer v. State, 95 Nev. 885, 603 P.2d
1066 (1979), in support of his argument that a failure to
advise a defendant that probation is not a sentencing option
renders a subsequent guilty plea ineffective.”). The Riker
court then stated that under these cases “[t]he issue . . . is
whether the [state] district court adequately ensured that
[defendant] was aware that probation was not a sentencing
option . . . .” Id. (emphasis in original). The facts were:
The State made the following declaration with
[defendant] present:
If the Court please, I wanted to make sure that Mr.
Riker also understands that the maximum punish-
ment is of course capital punishment, the death sen-
tence, but he may also receive either life without the
possibility of parole, which of course would be
enhanced—that is doubled by the deadly weapon
allegation—or a punishment of life with the possibil-
ity of parole, which also would be doubled as a
6284 LITTLE v. CRAWFORD
result of the deadly weapon enhancement, wherein
the minimum parole would be after twenty calendar
years. I want the Court to make sure that he fully
understands those consequences. The district court
then asked Riker if he understood the State’s
remarks, to which he replied, “Yes, I do.”
In addition, the district court told Riker that the pen-
alty for first degree murder can be “death, life with
or without the possibility.” Riker again stated that he
understood these penalty options.
Id. (footnote omitted). On these facts, the Riker court held that
“[b]ecause [defendant] understood the three options available
for sentencing, he implicitly understood that other options
were not available.” Id. The court then concluded that
“[c]onsidering the implication that probation was not included
among the sentencing options and the fact that [defendant]
was informed that the death sentence was likely, it was harm-
less error that he was not affirmatively informed that proba-
tion was not an option.” Id. at 711.
Little’s reliance on Myers is also inapposite since under the
reasoning of that case the equal protection clause protects
against arbitrary treatment. In that regard, the question is
whether the state court arbitrarily withheld enforcement of the
state-created right. As Myers explained: “A state should not
be permitted to treat defendants differently . . . unless it has
‘some rational basis, announced with reasonable precision’
for doing so.” Id. at 421 (citation omitted). Here, the state
court denied Little relief after finding that Little had been
“warned that he would have to spend ten years in prison at a
bare minimum.” This finding was anything but arbitrary. It
was based on the record and the trial court’s repeated assur-
ances that Little in fact knew he was going to serve prison
time.
[12] In sum, Little proceeds on the unfounded assumption
that, under Nevada law, a defendant is granted relief when-
LITTLE v. CRAWFORD 6285
ever that defendant is not advised on the record that he or she
is ineligible for probation; or that a trial court must use talis-
manic phrases to ensure a defendant is so aware. Little is not
entitled to federal habeas relief on that basis. Rather, Little
was required, but has failed, to show that the Nevada Supreme
Court’s misapplication somehow violated his federal constitu-
tional rights. Little’s plea comported with due process stan-
dards. He was properly advised of his rights and the relevant
consequences of his plea, and there is nothing in the record to
overcome the presumption that he pleaded voluntarily and
intelligently.
IV.
CONCLUSION
For the reasons set forth above, Little is not entitled to
habeas relief.
AFFIRMED.