Little v. Crawford

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.