NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL HENRY MELTON, No. 16-15140
Petitioner-Appellant, D.C. No. 2:12-cv-01791-JAD-NJK
v.
MEMORANDUM*
D. W. NEVEN and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted September 1, 2017
Pasadena, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,** District
Judge.
This is a habeas case on review here pursuant to 28 U.S.C. § 2253. Paul
Henry Melton attempted to steal tools valued at $809.94 from a Las Vegas K-Mart
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
store. He entered a plea of guilty to one count of grand larceny of property valued
at $2,500 or more, a Category B felony, and, when the state trial court took into
account Melton’s history of recidivism, he was sentenced to a term of
imprisonment of 10 years to life.1 His sentence was affirmed by the Nevada
Supreme Court and his state post-conviction relief challenges were denied. The
district court in considering this habeas action also denied relief.
On appeal, Melton contests the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254 on two grounds: the gross
disproportionality of his sentence and ineffective assistance of counsel. We review
the district court’s order de novo. Brown v. Horell, 644 F.3d 969, 978 (9th Cir.
2011). We grant habeas relief if the state court’s adjudication “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1) (Anti-Terrorism and
Effective Death Penalty Act of 1996, or “AEDPA”).
By accepting the State’s plea deal, Melton admitted that he did “willfully,
1
At the time he entered into his plea agreement, Melton had been
charged with attempted grand larceny and burglary. Had he been convicted of
both of these crimes, his sentences would have run concurrently and he would not
have been eligible for parole. His plea of guilty to the charge of grand larceny did
not foreclose the opportunity for parole. The State-offered plea deal presented
Melton with the possibility of a slight advantage in that had he been convicted of
burglary, he would not have been eligible for probation because of his prior
burglary conviction.
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unlawfully, and feloniously steal, take, carry, lead, or drive away property owned
by K-Mart, having a value of $2,500 or more, to wit, tools.” In truth of fact,
however, Melton did not complete the crime of grand larceny because the tools at
issue never left the K-Mart store and they were valued at far less than $2,500. As a
Category B felony, the crime of grand larceny carries a minimum term of not less
than 1 year and a maximum term of not more than 10 years imprisonment;
however, the State filed habitual criminal charges against Melton based on his
eight prior felony convictions. Taking into account both his underlying felony
offense and history of recidivism, the state court imposed a sentence of life in
prison with a minimum 10 years before parole eligibility.
The Eighth Amendment, which forbids cruel and unusual punishment, bars
“extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing v.
California, 538 U.S. 11, 23 (2003). Although Melton’s sentence is severe, the
Supreme Court has held under indistinguishable circumstances that a life sentence
with the possibility of parole is not a grossly disproportionate punishment for a
property-related felony committed by a habitual offender. See Rummel v. Estelle,
445 U.S. 263, 272, 276 (1980) (life sentence with the possibility of parole for third
non-violent property-related felony did not violate the Eighth Amendment’s
prohibition of cruel and unusual punishment). Melton’s ten-years-to-life sentence,
triggered by the property-related felony and his habitual criminal status, does not
3 16-15140
violate the Eighth Amendment as a grossly disproportionate penalty. Therefore,
the Nevada Supreme Court’s rejection of Melton’s claim that his sentence violated
the Eighth Amendment was not contrary to or an unreasonable application of
Supreme Court precedent.
Because the Nevada Supreme Court expressly relied on Strickland v.
Washington, 466 U.S. 668 (1984) in affirming the trial court’s denial of Melton’s
Strickland claim, we reject Melton’s argument that AEDPA does not apply
because the Nevada Supreme Court failed to apply Strickland independently. We
also reject Melton’s arguments that the state court erred in failing to hold an
evidentiary hearing or to allow discovery on this ineffective assistance of counsel
claim, because the state court did not make an objectively unreasonable
determination of facts. See 28 U.S.C. § 2254(d)(2). Melton contends that his
counsel provided ineffective assistance by failing to investigate the claims against
him (specifically by failing to interview the K-Mart security guard and by failing to
hire an expert to review the store’s security videotape footage of the attempted
theft) and failing to advise him of the consequences of his guilty plea.2 To prevail
on a claim of ineffective assistance of counsel, the totality of the circumstances
2
On appeal, Melton makes a passing argument that his counsel had a
conflict of interest and failed to sufficiently communicate with him. An
undeveloped argument of this sort is waived. United States v. Alonso, 48 F.3d
1536, 1544-45 (9th Cir. 1995).
4 16-15140
must demonstrate that Melton’s “counsel’s representation fell below an objective
standard of reasonableness” and that a reasonable probability exists that his
“counsel’s errors were so serious as to deprive [Melton] of a fair trial, a trial whose
result is reliable,” such that confidence in the outcome is undermined. Strickland,
466 U.S. at 687-688, 694; Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (holding that
the two-part Strickland test applies to challenges to guilty pleas based on
ineffective assistance of counsel).
On the record before us, it is clear that Melton’s public defender performed a
reasonable investigation of the charges against Melton, to wit, counsel had a full
opportunity to hear the testimony of the K-Mart security guard at the preliminary
hearing and he relied on the store’s security videotape footage to successfully
obtain a reduction of the charges against Melton. Furthermore, Melton understood
the consequences of his guilty plea as evidenced by his affirmations throughout the
state court’s plea colloquy, which included an ample and correct explanation of the
applicability and effect of the habitual offender statute. For these reasons, the
district court correctly determined that the Nevada Supreme Court’s rejection of
Melton’s ineffective assistance of counsel claim was neither contrary to nor an
unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). See
28 U.S.C. § 2254(d)(1).
AFFIRMED.
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