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Seka v McDaniel , 449 F. App'x 697 ( 2011 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                           FILED
    FOR THE NINTH CIRCUIT                             SEP 14 2011
    MOLLY C. DWYER, CLERK
    JOHN JOSEPH SEKA,                                No. 08-17120             U.S. COURT OF APPEALS
    Petitioner - Appellant,            D.C. No. 3:05-cv-00409-HDM-
    VPC
    v.
    E.K. MCDANIEL, Warden; NEVADA                    MEMORANDUM*
    ATTORNEY GENERAL,
    Respondents - Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Howard D. McKibben, Senior District Judge, Presiding
    Argued and Submitted March 14, 2011
    San Francisco, California
    Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
    On March 28, 2011, we granted a certificate of appealability for an
    uncertified issue raised in petitioner John Joseph Seka’s opening brief concerning
    “the sufficiency of the evidence to support a finding that Seka had an intent to rob
    Hamilton, such that the robbery could serve as a predicate offense for felony
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    -1-
    murder.” We have reviewed the parties’ supplemental briefs, including Seka’s
    oversized reply brief. We grant his unopposed motion to file that brief. We affirm
    the district court on this issue.
    Drawing all inferences in favor of the prosecution, it was not unreasonable
    under Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979), for the Nevada Supreme
    Court to affirm the first degree murder conviction. 
    28 U.S.C. § 2254
    (d)(2). The
    evidence showed that the murderer removed Hamilton’s jacket from his body after
    he was killed. Although “afterthought” robbery is not a predicate offense of felony
    murder, Nay v. State,
    123 Nev. 326
     (Nev. 2007), the jury could have inferred that
    Seka formed the intent to rob Hamilton before he killed him. This is sufficient to
    prove first degree murder. Even if Seka immediately disposed of the jacket,
    Nevada does not require that the robber intend to “permanently” deprive the victim
    of his or her property; the “duration of the deprivation” of property is irrelevant.
    Litteral v. State, 
    97 Nev. 503
    , 507 (Nev. 1981) (citation omitted), overruled on
    other grounds by Talancon v. State, 
    102 Nev. 294
    , 301 (1986). See also Walker v.
    Sheriff, Clark County, 
    93 Nev. 298
    , 300 (1977) (citing approvingly People v.
    Carroll, 
    1 Cal. 3d 581
     (1970), holding that “the taking of [the victim’s] wallet
    constituted a robbery even though the defendant discarded it as soon as he
    discovered it was empty”).
    This memorandum, and our March 28, 2011 order, dispose of the entirety of
    -2-
    petitioner Seka’s appeal in this court.
    AFFIRMED.
    -3-
    

Document Info

Docket Number: 08-17120

Citation Numbers: 449 F. App'x 697

Judges: Hug, Fletcher, Smith

Filed Date: 9/14/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024