Robert Servin v. E. K. McDaniel

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SERVIN,
Petitioner - Appellant,
v.
E. K. MCDANIEL,
Respondent - Appellee.
No. 08-16000
D.C. No. 3:04-CV-00621-RCJ-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted February 9, 2010
San Francisco, California
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.
Robert Servin was convicted of first-degree murder and robbery under
Nevada law and sentenced to death. The Supreme Court of Nevada affirmed his
conviction but vacated his death sentence, imposing instead two consecutive terms
of life imprisonment without the possibility of parole. In 2005, after
FILED
MAR 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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unsuccessfully pursuing state post-conviction relief, Servin filed an amended
petition for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that he was
deprived at trial of his rights to due process and to the effective assistance of
counsel. The district court denied his petition. Servin timely appealed, and this
court granted a certificate of appealability.
We first address the Supreme Court of Nevada’s rejection of Servin’s claim
that the state trial court violated his right to due process when it denied his motion
for a hearing to determine the necessity and amount of antipsychotic medication
that a prosecution witness, Brian Allen, was voluntarily taking. In Riggins v.
Nevada, 504 U.S. 127 (1992), the Supreme Court of the United States held that the
forced administration of antipsychotic drugs to a defendant is constitutionally
impermissible “absent a finding of overriding justification and a determination of
medical appropriateness.” Id. at 135. The Court, however, has never addressed the
constitutionality of the voluntary taking of such medication by a witness.
Therefore, it cannot be said that the state-court decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);
see Carey v. Musladin, 549 U.S. 70, 77 (2006). We thus conclude that Servin is
not entitled to habeas relief on this claim.

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We next address the Supreme Court of Nevada’s rejection of Servin’s claim
that counsel was constitutionally ineffective in failing to support adequately his
motion for a hearing on Allen’s medication. A claim of ineffective assistance of
counsel in violation of the Sixth Amendment has two components. “First, the
defendant must show that counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, counsel supported
Servin’s motion for a hearing by informing the state trial court about the
antipsychotic medication’s effects on patients generally and on Allen specifically.
The Supreme Court of Nevada did not unreasonably apply Strickland in
concluding that counsel’s performance was not deficient. Accordingly, habeas
relief is not warranted on this claim. See 28 U.S.C. § 2254(d)(1).
Next, we address the Supreme Court of Nevada’s rejection of Servin’s claim
that counsel was constitutionally ineffective in failing to subpoena a potential
witness named Damien Winkelman to testify at trial. According to Servin,
Winkelman would have contradicted the testimony of the prosecution’s key
witness that Servin shot and killed the victim. Winkelman’s testimony, however,
was of questionable reliability and of limited probative value. Moreover, because
the jury was instructed on the felony-murder rule, the prosecution did not have to

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prove that Servin was the shooter to obtain a first-degree murder conviction. Thus,
even if counsel’s performance was deficient, the Supreme Court of Nevada
reasonably applied Strickland in concluding that the failure to subpoena
Winkelman did not prejudice the defense. Habeas relief is not warranted on this
claim. See 28 U.S.C. § 2254(d)(1).
Finally, we address the Supreme Court of Nevada’s rejection of Servin’s
claim that counsel was constitutionally ineffective in failing to introduce evidence
of Allen’s antipsychotic medication to the jury. This claim was not encompassed
by the certificate of appealability, but we construe Servin’s brief as a motion to
expand the certificate, and we grant the motion. See 9th Cir. R. 22-1(e).
Nevertheless, we reject this claim on the merits. Presentation of such evidence
would have, at most, discredited Allen’s testimony that Servin was the shooter. As
discussed above, the prosecution could have obtained a first-degree murder
conviction under the felony-murder rule without proving that Servin was the
shooter. Moreover, there is no reason to believe that Servin would have received a
less severe sentence if his counsel had discredited Allen. Thus, the Supreme Court
of Nevada reasonably applied Strickland in concluding that the failure to present
evidence of Allen’s medication did not prejudice the defense, and no habeas relief
is warranted. See 28 U.S.C. § 2254(d)(1).

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For these reasons, the judgment of the district court is
AFFIRMED.

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