                           NOT FOR PUBLICATION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-
