NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL HENRY MELTON, 

Petitioner-Appellant, 

 v. 

D. W. NEVEN and ATTORNEY 

GENERAL FOR THE STATE OF 

NEVADA, 

Respondents-Appellees.

No. 16-15140 

D.C. No. 2:12-cv-01791-JAD-NJK 

MEMORANDUM*

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.

FILED

OCT 19 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-15140 

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.
3 16-15140 

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 
4 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).
5 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.