                           NOT FOR PUBLICATION                           FILED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.

                                           2                                   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


                                          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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