                                                                            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                            NOT FOR PUBLICATION                              MAR 28 2011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


                                            2
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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