                                                                            FILED
                           NOT FOR PUBLICATION                               MAR 01 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBERT SERVIN,                                   No. 08-16000

             Petitioner - Appellant,             D.C. No. 3:04-CV-00621-RCJ-
                                                 RAM
  v.

E. K. MCDANIEL,                                  MEMORANDUM *

             Respondent - Appellee.



                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.


                                               2
      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


                                          3
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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