Daniel Ray Brimmage v. George Sumner, Director, Nevada Department of Prisons

793 F.2d 1014

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 1986
• Docket: 84-1676
• Status: Published

Opinions

KENNEDY, Circuit Judge:

Petitioner was convicted by a Nevada court of robbery and murder in the first degree in the perpetration of robbery. He was sentenced to life imprisonment without the possibility of parole for the murder and a concurrent fifteen-year sentence for the robbery. His convictions were affirmed by the Nevada Supreme Court, 93 Nev. 434, 567 P.2d 54, and his petition for a writ of habeas corpus was denied by the federal district court. We affirm.

Petitioner contends that his robbery conviction should be overturned because it constitutes double jeopardy. His argument rests on the constitutional guarantee against multiple punishments for the same offense. He argues that the Nevada robbery statute, under which he was convicted, does not require proof of any fact beyond those required to convict under the felony murder statute for murder committed in the perpetration of robbery, under which he was also convicted. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Nevada robbery statute defines “robbery” as:

the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, in either of which cases the degree of force is immaterial.

Nev.Rev.Stat. § 200.380(1). The Nevada murder statute defines “[mjurder of the first degree” as “murder which is ... [committed in the perpetration or attempted perpetration of ... robbery____” Nev. Rev.Stat. § 200.030(l)(b).

Taken together, the two statutes do indicate that robbery is a lesser included offense of felony murder. But even if the two statutes proscribe the same conduct, the Double Jeopardy Clause does not prevent the imposition of cumulative punishments if the state legislature clearly intends to impose them. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); see Albernaz v. United States, 450 U.S. 333, 340-41, 101 S.Ct. 1137, 1142-43, 67 L.Ed.2d 275 (1981) (congressional intent); Whalen v. United States, 445 U.S. 684, 690-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980) (same). We must accept the state court’s interpretation of the legislative intent for the imposition of multiple punishments, although we are not bound by that court’s ultimate conclusion concerning whether such punishments violate the Double Jeopardy Clause. Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

We interpret Nevada Supreme Court decisions to hold that the Nevada legislature intended multiple punishments for felony murder and the underlying robbery. The Nevada Supreme Court has held that robbery and felony murder “are two separate and distinct offenses.” Koza v. State, 681 P.2d 44, 50 (Nev.1984) (per curiam); Brimmage v. State, 93 Nev. 434, 567 P.2d 54, 59-60 (1977); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706, 707 (1965). It is true that in neither Koza, Brimmage, nor Carmody did the Nevada Supreme Court explicitly analyze legislative intent. But in Koza the state court necessarily interpreted the legislative intent with regard to authorizing cumulative punishments by first quoting the relevant language on legislative intent from Missouri v. Hunter and then reaching the conclusion that “separate and distinct statutes and offenses are involved.” 681 P.2d at 50. Since the requisite legislative intent to impose multiple punishments therefore exists, we find no violation of the Double Jeopardy Clause.

Because petitioner’s remaining contentions either are without constitutional merit or are not properly before a federal court on petition for a writ of habeas corpus, we address them in a separate memorandum opinion.

The district court’s denial of the petition for a writ of habeas corpus is AFFIRMED.