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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

David Quintin Melendez, 

Petitioner, 

v. 

Charles Ryan, et al., 

Respondents. 

No. CV-17-4293-PHX-JJT (DMF) 

REPORT AND RECOMMENDATION 

TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE: 

 David Quintin Melendez filed a Petition for Writ of Habeas Corpus (“Petition”) in 

this Court challenging his convictions and sentences in Maricopa County Superior Court. 

Melendez alleges he received ineffective assistance of trial counsel during plea 

negotiations. (Doc. 1) A response and a reply have been filed (Docs. 14, 17), and the 

matter is ripe for decision. As described below, the undersigned recommends that 

Melendez’s Petition should be denied and dismissed with prejudice. 

Background 

 In April 2012, Melendez was indicted in Maricopa County Superior Court for one 

count of aggravated assault and one count of misconduct involving weapons. (Doc. 14, 

Ex. A) In June 2012, the State filed an allegation of historical priors and an allegation of 

prior felony convictions; both allegations involved convictions from Florida. (Doc. 14, 

Exs. B, D) There had been a pre-indictment settlement conference that produced no plea 
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offer because Melendez had refused an offer at an even earlier point. (Doc. 14, Ex. NN) 

At the settlement conference, Melendez expressed no intention to plead guilty. (Id.) 

In August 2012, at the Final Pretrial Conference, the trial judge asked why Petitioner 

had not been offered a plea agreement. (Doc. 14, Ex. OO) During discussions that 

followed on the record with the trial judge, Melendez indicated that he “would consider 

taking the three and a half [3.5 years which was offered and rejected by Melendez before 

the settlement conference] just to spare everybody from going to trial or whatnot.” (Id.) 

Following the conversation at the Final Pretrial Conference, the prosecutor emailed 

Melendez’s counsel with offer for a sentence of 5 to 7.5 years. (Doc. 14, Ex. E) The 

prosecutor wrote that this offer “cuts 7.5 years off the top of the range.” (Id.) 

Melendez did not accept the State’s offer, and the case proceeded to trial in 

September 2012. (Doc. 14, Ex. F) At the conclusion of a six-day trial, the jury found 

Melendez guilty and also found one aggravating factor. (Doc. 14, Exs. F, G) Subsequently, 

the prosecutor emailed Melendez’s counsel and informed him that the State intended to 

argue that Melendez’s Florida convictions were dangerous. (Doc. 14, Ex. H) If the Florida 

convictions were dangerous under Arizona law, the sentencing range Melendez faced 

would be higher than counsel had discussed with each other during plea negotiations. 

(Doc. 14, Ex. I) The prosecutor acknowledged that he only recently had researched the 

priors; the prosecutor also acknowledged that he and defense counsel had not previously 

discussed the Florida priors being dangerous under Arizona law. (Doc. 14, Ex. H) 

Melendez, through counsel, moved to strike the priors because the State had previously 

indicated that it would not seek to show that the priors were dangerous. (Doc. 14, Exs. I, 

ZZ at 38-39) The Superior Court did not strike the priors and sentenced Melendez to 

concurrent, aggravated terms of 12.5 years for the aggravated assault charge and 4.5 years 

for the misconduct involving weapons charge, resulting in a total, effective prison sentence 

of 12.5 years. (Doc. 14, Ex. J) 

 Melendez timely appealed and argued the Superior Court should have severed the 

two counts and also that the Superior Court imposed unlawful sentences. (Doc. 14, Exs. 
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K, L) At the conclusion of briefing, the Arizona Court of Appeals affirmed Melendez’s 

convictions and sentences. (Doc. 14, Exs. M, N, O) The Arizona Supreme Court denied 

review of his petition. (Doc. 14, Exs. P, Q, R) 

 Melendez then timely initiated post-conviction relief and the Superior Court 

appointed him counsel. (Doc. 14, Exs. S, T) In his post-conviction petition, Melendez 

argued that he received ineffective assistance of counsel because his trial counsel had 

misrepresented the sentence he was facing. (Doc. 14, Ex. U) Melendez filed an affidavit 

from his trial counsel with his Petition that acknowledged error insofar as advising 

Melendez during plea negotiations that “if convicted at trial the most he faced was 5-15 

years dangerous since it appeared as through [sic] the State did not seek to prove the prior 

conviction as a dangerous offense. Had I realized the State sought to prove the prior as a 

dangerous prior, I would have advised him that he faced a repetitive dangerous sentencing 

range.” (Doc. 14, Ex. X ¶6) Similarly, in Melendez’s affidavit, he swore that defense 

counsel “advised that the State could not use my priors against me for sentencing 

enhancement purposes because they were non-dangerous offenses and the most I could 

receive if convicted at trial was 5-15 years.” (Doc. 14, Ex. W ¶5) 

At the conclusion of briefing, the Superior Court conducted an evidentiary hearing 

where Melendez and his trial counsel both testified. (Doc. 14, Exs. Y, Z, AA, BB) The 

Superior Court denied Melendez’s Petition on the record. (Doc. 14, Exs. BB, ZZ) 

 Melendez timely initiated appellate review. (Doc. 14, Ex. CC) The Arizona Court 

of Appeals ordered the Superior Court to supplement the record and then remanded the 

matter so the Superior Court could make specific findings of fact and conclusions of law. 

(Doc. 14, Exs. DD, EE) The Superior Court ordered the parties to submit proposed findings 

and conclusions and then adopted the proposed findings and conclusions submitted by the 

State. (Doc. 14, Exs. FF, GG, HH, II, JJ, KK) 

On further review, the Arizona Court of Appeals summarized the Superior Court’s 

evidentiary hearing and subsequent ruling as follows: 

At the hearing, Melendez’s trial lawyer testified that the State 

offered an agreement by which Melendez would plead guilty 
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to a Class 3 dangerous felony, with a stipulated sentence of 

between five and seven and a half years. The lawyer conceded 

he mistakenly advised Melendez that he might receive the 

same sentence after trial; in reality, a conviction on a dangerous 

Class 3 felony with a prior dangerous offense conviction would subject a defendant to a sentence of twice that term, according to the lawyer. The lawyer also testified, however, that he told 

Melendez that if the State were to allege a prior dangerous 

conviction, he might be sentenced to as long as 15 years after 

a trial. He flatly denied telling Melendez that if he rejected the 

plea offer and were to be convicted, he would receive the same 

sentence as in the plea offer. Further, he testified that 

Melendez never told him that he would be willing to accept a 

plea that would result in a sentence of more than five years in prison. 

During the hearing, Melendez’s trial counsel was crossexamined about a declaration he signed in support of 

Melendez’s petition for post-conviction relief. In that 

declaration, the lawyer stated that Melendez rejected the 7.5–

year offer “based on the erroneous belief that he could receive

the same sentence if he proceeded to trial.” In the declaration, 

the lawyer stated that documents he received in response to 

discovery requests revealed that Melendez’s prior armedrobbery felony constituted a dangerous felony. He further 

stated, “Unfortunately, and to Melendez’ detriment, I 

discussed plea negotiations with Melendez based on my 

impression that his Florida prior could be a non-dangerous 

offense, dangerous offense, or multiple offenses.” He elaborated: “During plea negotiations, I conveyed to Melendez 

that if convicted at trial the most he faced was 5–15 years 

dangerous since it appeared as through [sic] the State did not seek to prove the prior conviction as a dangerous offense.” 

Melendez conceded at the hearing that, at a prior settlement 

conference, the judge had outlined for him the various 

sentencing ranges he faced at trial, telling him that he could be 

sentenced to as long as 15 years in prison. Nevertheless, 

Melendez testified that in advising him about the plea offer, his 

trial counsel told him that he would face a sentence of no more

than 7.5 years after a trial; Melendez denied that his lawyer told 

him he could be sentenced to as long as 15 years. 

In dismissing Melendez’s petition for post-conviction relief, the superior court found Melendez’s trial counsel more 

credible than Melendez. Indeed, the court found Melendez’s 

testimony “totally incredible.” The court also found that 

Melendez would not have accepted the plea offer even if his 

lawyer had not misspoken about the low range of a possible 

sentence. The court ruled that Melendez failed to show that his 

trial counsel performed below the prevailing standard of 

reasonableness or, if his lawyer did perform unreasonably, that he was thereby prejudiced. 

. . . 
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State v. Melendez, 2017 WL 4782189, at *2, ¶¶ 7-10 (Ariz. App., 2017); see Doc. 14, Ex. 

LL. The Court of Appeals concluded that “the superior court did not abuse its discretion 

in finding Melendez’s trial counsel more credible than Melendez, and based on that 

determination, in dismissing Melendez’s petition.” Id. As a result, the Court of Appeals 

granted review but denied relief. Id. Melendez did not move for reconsideration or petition 

for review. (Doc. 14, Exs. MM, AAA) 

Habeas Petition 

 Melendez timely initiated habeas proceedings in this Court and argues, as he did in 

his post-conviction proceedings, that he received ineffective assistance of trial counsel 

during his plea negotiations due to erroneous advice from defense counsel regarding his 

sentencing range if convicted after trial. (Doc. 1, 17) In his Petition, Melendez writes that 

“counsel was erroneous in believing that this would constitute my first dangerous offense 

with a range of 5 [minimum years in prison]- 7 1⁄2 [presumptive years in prison] - 15 years 

[maximum years in prison], when in fact I was facing a sentencing range as a repetitive 

dangerous offender with a range of 10 [minimum years in prison] - 11.5 [presumptive years 

in prison] - 20 years [maximum years in prison].” (Doc. 1 at 6) Respondents contend that 

Melendez cannot show that his trial counsel was objectively deficient or caused him 

prejudice and, thus, he is not entitled to relief. (Doc. 14) 

Standard of Review 

 On habeas review, this Court can only grant relief if the petitioner demonstrates 

prejudice because the adjudication of a claim either “(1) resulted in a decision that was 

contrary to, or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or (2) resulted in a decision that 

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). This is a “‘highly deferential standard 

for evaluating state-court rulings’ which demands that state-court decisions be given the 

benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting 

Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). 
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With respect to § 2254(d)(2), a state court decision “based on a factual determination 

will not be overturned on factual grounds unless objectively unreasonable in light of the 

evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 

340 (2003). A “state-court factual determination is not unreasonable merely because the 

federal habeas court would have reached a different conclusion in the first instance.” Wood 

v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual 

determination is unreasonable under § 2254(d)(2), the court must be “convinced that an 

appellate panel, applying the normal standards of appellate review, could not reasonably 

conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 

1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 

(9th Cir. 2014). “This is a daunting standard—one that will be satisfied in relatively few 

cases.” Id.

 The prisoner bears the burden of rebutting the state court’s factual findings “by clear 

and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise 

relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a state-court 

factual determination is not unreasonable merely because the federal habeas court would 

have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 

18 (2013) (citing Wood, 558 U.S. at 293, 301). 

Ineffective Assistance of Counsel 

 Under clearly established Federal law on ineffective assistance of counsel, 

Melendez needs to show that his trial counsel’s performance was both (a) objectively 

deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 

(1984). This results in a “doubly deferential” review of counsel’s performance. Cullen v. 

Pinholster, 563 U.S. 170, 190 (2011). A habeas court reviewing a claim of ineffective 

assistance of counsel must determine “whether there is a reasonable argument that counsel 

satisfied Strickland’s deferential standard, such that the state court’s rejection of the IAC 

claim was not an unreasonable application of Strickland. Relief is warranted only if no 

reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 
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418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). The Court has 

discretion to determine which Strickland prong to analyze first. LaGrand v. Stewart, 133 

F.3d 1253, 1270 (9th Cir. 1998). 

Melendez received objectively deficient representation if his counsel “‘fell below 

an objective standard of reasonableness’ such that it was outside ‘the range of competence 

demanded of attorneys in criminal cases.’” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 

2014) (quoting Strickland, 466 U.S. at 687). ‘[A] defendant has the right to make a 

reasonably informed decision whether to accept a plea offer.” Turner v. Calderon, 281 

F.3d 851, 880 (9th Cir. 2002) (quoting United States v. Day, 969 F.2d 39, 43 (3rd Cir.1992)). 

In the context of rejecting a plea offer, the question is “not whether ‘counsel’s advice [was] 

right or wrong, but ... whether that advice was within the range of competence demanded 

of attorneys in criminal cases.” Turner, 281 F. 3d at 880 (quoting McMann v. Richardson, 

397 U.S. 759, 771 (1970). Counsel’s ineffectiveness results from “gross error,” not a 

failure to “accurately predict what the jury or court might find.” Turner, 281 F. 3d at 881. 

Cf. U.S. v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (“it is well established that an 

erroneous prediction by a defense attorney concerning sentencing does not entitle a 

defendant to challenge his guilty plea”). 

To demonstrate prejudice, Melendez “must show that there [wa]s a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. “In the context of pleas, a 

defendant must show the outcome of the plea process would have been different with 

competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). When applying these 

standards to a claim that ineffective assistance led to the improvident rejection of a guilty 

plea, the petitioner must show “that but for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been presented to the court (i.e., that 

the defendant would have accepted the plea and the prosecution would not have withdrawn 

it in light of intervening circumstances), that the court would have accepted its terms, and 
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that the conviction or sentence, or both, under the offer’s terms would have been less severe 

than under the judgment and sentence that in fact were imposed.” Lafler v. Cooper, 566 

U.S. at 164. 

Analysis 

 Melendez alleges that he is entitled to habeas relief because he relied on his 

counsel’s advice during plea negotiations and, after he stood trial, his sentencing range was 

higher than counsel had previously advised. (Docs. 1, 17). Lafler v. Cooper, 566 U.S. 156 

(2012) (the Sixth Amendment requires effective assistance of counsel during plea 

negotiations), but see Buenrostro v. U.S., 697 F.3d 1137 (9th Cir. 2012) (Lafler did not 

decide a new rule of constitutional law). 

 The Superior Court found Melendez’s trial counsel’s post-conviction hearing 

testimony credible, and the Court of Appeals upheld that determination. Melendez’s trial 

counsel testified that during plea negotiations, he told Melendez that he likely faced 5 to 

15 years when Melendez actually faced 10 to 20 years based on the sentencing court’s later 

finding that the Florida priors were dangerous. In his affidavit in support of his state court 

post-conviction petition as well as his habeas petition, Melendez also states that he was 

advised by his counsel that his sentencing range was 5 to 15 years. (Ex. W; Doc. 1 at 6). 

The factual determination that Melendez was advised during plea negotiations that he was 

facing 5 to 15 years prison is reasonable (indeed, is undisputed) and is supported by the 

record. Also reasonable and supported by the record is the Court of Appeals’ adoption of 

the finding that Melendez would not have accepted the plea offer even if his lawyer had 

not misspoken about the low range of a possible sentence. Melendez has not shown, and 

the record does not support, that Melendez would have accepted the state’s earlier plea 

offer of 5 to 7.5 years even if defense counsel had advised of the 10 to 20 rather than 5 to 

15 year likely sentencing range. 

 Although during plea negotiations defense counsel may have provided Melendez 

an inaccurate prediction as to Melendez’s ultimate post-conviction sentencing range, 

defense counsel’s prediction did encompass Melendez’s ultimate sentence of 12.5 years. 
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Melendez cannot show prejudice. 

The record reflects that Melendez’s counsel gave him sentencing range advice 

during plea negotiations based on how the prosecutor was viewing Melendez’s priors 

during plea negotiations and at trial. It was not until after trial that the prosecutor further 

researched Melendez’s priors and decided to proceed on Melendez’s Florida priors as 

dangerous. Counsel’s advice during plea negotiations was not “gross error.” Turner, 281 

F.3d at 881. On this record, the Arizona Court of Appeals’ decision that Melendez’ trial 

counsel did not perform below the prevailing standard was not contrary to and did not 

involve an unreasonable application of clearly established Federal law. 

Accordingly, Melendez is not entitled to habeas relief on his one claim, ineffective 

assistance of counsel. 

 IT IS THEREFORE RECOMMENDED that David Quintin Melendez’s Petition 

for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice. 

IT IS FURTHER RECOMMENDED that a Certificate of Appealability should 

be denied and leave to proceed in forma pauperis on appeal be denied because Petitioner 

has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 

2253(c)(2), and jurists of reason would not find the Court’s assessment of Petitioner’s 

constitutional claims “debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the district court’s judgment. The 

parties shall have fourteen days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); 

Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen 

days within which to file a response to the objections. Failure timely to file objections to 

the Magistrate Judge’s Report and Recommendation may result in the acceptance of the 

Report and Recommendation by the district court without further review. See United States 

v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to 
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any factual determinations of the Magistrate Judge will be considered a waiver of a party’s 

right to appellate review of the findings of fact in an order or judgment entered pursuant to 

the Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure. 

Dated this 30th day of November, 2018.