John Seka v. E. McDaniel , 424 F. App'x 706 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN JOSEPH SEKA, No. 08-17120
Petitioner - Appellant, D.C. No. 3:05-cv-00409-HDM-
VPC
v.
E.K. MCDANIEL, Warden; NEVADA MEMORANDUM and ORDER *
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.
In his habeas petition, petitioner John Joseph Seka alleged thirteen claims
for relief. The district court found that eight of these claims were procedurally
defaulted because the Nevada Supreme Court had held that they were waived
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under NRS 34.810(1)(b)(2). We granted a certificate of appealability as to whether
the district court erred in finding that these claims were procedurally defaulted. On
appeal, Seka also raises several uncertified issues challenging the sufficiency of the
evidence at trial and the effectiveness of his trial counsel.
We review the district court’s dismissal of a habeas petition on procedural
grounds de novo. Collier v. Bayer, 408 F.3d 1279, 1280 (9th Cir. 2005). We will
grant a certificate of appealability where “the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
As to Seka’s certified issue, we hold that the district court was correct in
determining that Seka defaulted the eight claims. Seka did not raise any of these
claims for relief on direct appeal. The Nevada Supreme Court held that Seka was
therefore barred from raising these claims on post-conviction appeal. Specifically,
the Nevada Supreme Court held that “[t]o the extent that Seka raised any of these
claims outside of the context of his ineffective assistance of appellate counsel
claims, we conclude that Seka failed to demonstrate good cause for his failure to
raise these claims in his direct appeal and they are waived. See NRS
34.810(1)(b)(2).” The provision cited by the Nevada Supreme provides, “The
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court shall dismiss a petition if the court determines that: . . . [t]he petitioner’s
conviction was the result of a trial and the grounds for the petition could have been
. . . [r]aised in a direct appeal.” This is an independent and adequate state law
ground which prevents us from reviewing Seka’s claims during federal habeas
proceedings. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Even if Seka
could show cause for this default, he has not alleged any prejudice on appeal.
We grant a certificate of appealability on the issue of the sufficiency of the
evidence to support the first degree murder charge for the killing of Hamilton.
Included in this certificate of appealability is the issue of 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 deny a certificate of appealability on Seka’s other uncertified issues.
We will establish a briefing schedule by separate order.
On the certified issue, the district court is AFFIRMED. We GRANT a
certificate of appealability on one issue and DENY certificates of appealability on
the other issues.
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