Unpublished Disposition, 897 F.2d 533 (9th Cir. 1978)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 897 F.2d 533 (9th Cir. 1978)

Craig POLK, Plaintiff-Appellant,v.H.L. WHITLEY, et al., Defendants-Appellees

No. 88-15606.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 24, 1990.* Decided March 6, 1990.

Before GOODWIN, Chief Judge, and SNEED and FERGUSON, Circuit Judges.


Craig Cleve Polk appeals from the district court's dismissal of his petition for writ of habeas corpus. We affirm.

On December 22, 1978, Polk escaped from the Northern Nevada Correctional Center, where he was serving life sentences for sexual assault and kidnapping, and additional sentences for a number of other felonies. After escaping, he abducted a young woman in her own car.

Recaptured, Polk agreed to plead guilty to escape and kidnapping and to admit conviction on two prior felonies, which would make him subject to an enhanced sentence of up to twenty years on each count as an habitual criminal under Nevada law. Nev.Rev.Stat. 207.010. Pursuant to this agreement, Polk was sentenced to 15 years for kidnapping (unenhanced) and 10 years, enhanced to 20 years, for the escape.

Polk now contends that the enhancement of the escape sentence violated his due process rights. Polk asserts that during the acceptance of the guilty plea, the Nevada court asked him only about two prior felonies which arose out of a single criminal occurrence. Under Nevada law, convictions arising out of the same transaction count as only one felony for sentence enhancement purposes. Halbower v. State, 96 Nev. 210, 606 P.2d 536 (1980). Therefore, Polk claims, the factual basis for the escape enhancement--two prior convictions--was not established. This claim is meritless.

Polk does not contest that he is guilty of at least two separate prior criminal transactions resulting in felony convictions and that the plea agreement he signed reflected that admission; that those independent prior felonies were listed on the information and complaint filed against him; that he was informed of the government's intention to pursue sentence enhancement based on these prior convictions; nor that his agreement to the plea, including the prospect of enhancement, was entered knowingly and voluntarily. Polk was given adequate notice and sufficient opportunity to be heard on the sentence enhancement. LaMere v. Risley, 827 F.2d 622, 624 (9th Cir. 1987). The court's failure to establish the specific factual basis for his admission to two prior felony convictions does not amount to a due process violation. Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (per curiam).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3