Little v. Crawford

• Decision Date: 08 June 2006
• Docket Number: No. 05-15364.,05-15364.
• Citation: 449 F.3d 1075
• Parties: Christopher C. LITTLE, Petitioner-Appellant, v. Jacqueline CRAWFORD; Frankie Sue del Papa, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

449 F.3d 1075

Christopher C. LITTLE, Petitioner-Appellant, v. Jacqueline CRAWFORD; Frankie Sue del Papa, Respondents-Appellees.

No. 05-15364.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2005.

Filed June 8, 2006.

John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for the petitioner-appellant.

Victor-Hugo Schulze, II, Deputy Attorney General, Las Vegas, NV, for the respondents-appellees.

Appeal from the United States District Court for the District of Nevada, David W. Hagen, District Judge, Presiding. D.C. No. 0V-98-00394-DWH.

Before ALEX KOZINSKI and BARRY G. SILVERMAN, Circuit Judges, and ROGER T. BENITEZ,^* District Judge.

BENITEZ, District Judge.

Christopher Little, a Nevada state prisoner, appeals the district 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 voluntary; (4) he was denied counsel at a contested hearing in juvenile 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 jurisdiction under 28 U.S.C. §§ 1291 and 2253, and affirm. Because reasonable jurists would not find the district court's assessment 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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.

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 promised to dismiss four other counts at sentencing.

At the time of Little's offense, under Nevada Revised Statutes ("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 possibility of parole in ten years. In October 1990, Little was sentenced 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 facing non-probationable life sentences, but only that they run concurrent." Then, applying the totality of the circumstances test under Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986) (per curiam), the court found Little's plea was not coerced and Little "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 summarily 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 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, 603 P.2d 1066 (1979); Aswegan v. State, 101 Nev. 760, 710 P.2d 83 (1985); Skinner v. State, 113 Nev. 49, 930 P.2d 748 (1997))." Little filed a brief and a supplemental 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 demonstrate 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, 117 Nev. 845, 34 P.3d 540, 546 (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 ineligible 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 circumstances surrounding the plea in order to ensure that a defendant 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 [v. State, 97 Nev. 358, 630 P.2d 1224 (1981) ], 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 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 present 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, ___ U.S. ___, 126 S.Ct. 484, 163 L.Ed.2d 368 (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, 123 S.Ct. 1398, 155 L.Ed.2d 363 (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 established 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).

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 support, he relies on the Nevada Supreme Court's decisions in Meyer v. State, 95 Nev. 885, 603 P.2d 1066 (1979), Aswegan v. State, 101 Nev. 760, 710 P.2d 83 (1985) (per curiam), and Skinner v. State, 113 Nev. 49, 930 P.2d 748 (1997) (per curiam). In these cases, the Nevada Supreme Court set aside the...