Seka v McDaniel

MEMORANDUM

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 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 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (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 , 167 P.3d 430 (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…