United States District Court, N.D. Alabama, Northeastern Division
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE
Pakhomov was convicted of the murder of his wife, Yelena
Zakin, and sentenced to 45 years imprisonment. He has filed
an amended 28 U.S.C. § 2254 petition for writ of habeas
corpus, asserting six grounds for relief:
(1) the state trial court violated his right to due process
by failing to preserve transcripts of voir dire, opening
statements, and closing arguments;
(2) the State violated Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose exculpatory evidence;
(3) the State presented misleading evidence and perjury at
(4) the State violated his right to confrontation by
presenting statements made by the victim before her death;
(5) trial counsel was ineffective; and
(6) appellate counsel was ineffective.
(Doc. 8 at 6-13).
magistrate judge recommended denying Claims One, Three, Four,
and Six as unexhausted and procedurally defaulted because Dr.
Pakhomov failed to raise those claims in the state courts.
(Doc. 14 at 13-15). The magistrate judge also recommended
finding parts of Claim Five procedurally defaulted.
(Id. at 39- 40, 44-45, 60-61). He recommended
denying Claim Two and the rest of Claim Five on the merits.
(Id. at 15-83).
court reviews de novo the parts of the report and
recommendation to which the petitioner objects. See
28 U.S.C. § 636(b)(1). Dr. Pakhomov filed objections to
parts of the report and recommendation. (Doc. 15). He offers
no objections to the recommendation that the court find
Claims One, Three, Four, parts of Claim Five, and Claim Six
procedurally defaulted. (See generally id.).
Accordingly, the court ACCEPTS the report
and ADOPTS the recommendation to deny those
claims as procedurally defaulted.
Pakhomov does object to the magistrate judge's
recommendation about Claim Two and the rest of Claim Five,
and he contends that the magistrate judge failed to address
his argument that Alabama Rule of Criminal Procedure 19.4 is
unconstitutional. (Doc. 15). After a de novo review
of those parts of the report and recommendation, the court
OVERRULES the objections but
MODIFIES the report and recommendation in
part. The court does not find it necessary to retread all the
same ground that the magistrate judge has already covered.
Accordingly, this memorandum opinion will address only the
objections that the court has determined warrant further
discussion. The court ACCEPTS the report and
ADOPTS the recommendation as to all other
deciding a state prisoner's § 2254 petition, this
court reviews the state court's adjudication of the
petitioner's claims. See 28 U.S.C. §
2254(d). Here, the court reviews the Alabama Court of
Criminal Appeals' decision affirming the denial of Dr.
Pakhomov's amended Alabama Rule of Criminal Procedure 32
petition. See Wilson v. Sellers, 138 S.Ct. 1188,
1192 (2018); Powell v. Allen, 602 F.3d 1263, 1268
n.2 (11th Cir. 2010). The Alabama Court of Criminal Appeals
declined to “search the record from [Dr.
Pakhomov's] direct appeal to ascertain the factual
basis” of his claims. (Doc. 8 at 40). It therefore
considered only the allegations made in his amended Rule 32
petition and the factual description given in his brief on
direct appeal, which he had attached to his petition.
(Id.). Accordingly, this court may “look only
to the allegations in [the petitioner's] Rule 32 petition
and whether those allegations sufficiently state a
claim” for habeas relief. Powell, 602 F.3d at
1273. The court draws the following description of the facts
from Dr. Pakhomov's Rule 32 petition and appellate brief.
Pakhomov and his wife, Ms. Zakin, had a tumultuous
relationship. In January and February 2006, police were
called to Dr. Pakhomov's residence in response to
domestic disturbances. (Doc. 10-18 at 75-76). On May 24,
2006, Ms. Zakin assaulted “a woman with whom she
believed her husband was having an affair, ” resulting
in her arrest for domestic violence assault and criminal
mischief. (Id. at 76). The day after Ms. Zakin's
arrest, police were again called to Dr. Pakhomov's
residence in response to a domestic disturbance.
(Id. at 76). At trial, several police officers
testified about statements Ms. Zakin made when they responded
to the domestic disturbance calls, including her accusation
that Dr. Pakhomov had hit her on the head with a rock. (Doc.
10-20 at 20-24).
after May 29, 2006, Dr. Pakhomov reported his wife missing.
(Doc. 10-18 at 76). On June 1, 2006, some local fishermen
found Ms. Zakin's body floating in the Tennessee River.
(Id. at 74). She had been strangled to death.
(Id. at 74-75). Police who removed her body from the
river found that a woven leather belt held a backpack filled
with rocks to her body. (Id.).
collected various items from the nearby area, including a
pair of white fabric gloves. (Doc. 10-18 at 74). The lead
investigator, Sergeant Rick Archer, testified that DNA
belonging to a felon named Wallace Kent Burgess was found in
the gloves, and that Dr. Pakhomov was excluded as a DNA
contributor. (Id. at 74-75). Sergeant Archer
testified that after he received the DNA results, he
interviewed Mr. Burgess, but “it is unclear from the
testimony whether Sgt. Archer discussed the gloves with Mr.
Burgess, and what information regarding them was obtained
from that interview.” (Id. at 33; see also
Id. at 37). Sergeant Archer did testify that at the time
of the interview, Mr. Burgess was wheelchair-bound. (Doc. 8
the evidence that the DNA found in the gloves did not belong
to Dr. Pakhomov, the State presented evidence attempting to
connect Dr. Pakhomov to the gloves. Specifically, it
presented evidence that the same type of glove was often used
in a laboratory setting; that a nearby NASA facility was the
only place in the area where that brand of glove had been
sent; and that Dr. Pakhomov would have had access to the NASA
building “and thus, impliedly, to gloves similar to
those found at the scene.” (Doc. 10-18 at 34, 38).
searched Dr. Pakhomov's Jeep and found blood stains
belonging to Ms. Zakin inside. (Doc. 10-18 at 75). A forensic
analyst testified that the blood stains were
“fresh” but that he could not determine exactly
how long they had been there. (Id. at 42). A
forensic analyst also testified that Ms. Zakin's
fingernail clippings contained DNA belonging to both her and
Dr. Pakhomov. (Id. at 75). Finally, Sergeant Archer
testified that in Dr. Pakhomov's house he found a woven
belt “similar” to the one found on Ms.
Zakin's body, and that the two belts had “nearly
identical” wear patterns. (Id. at 40, 75).
woman Dr. Pakhomov was having an affair with was apparently
Melissa Dehollander; Dr. Pakhomov's amended Rule 32
petition referred to Ms. Dehollander's
“detail[ed]” testimony about their relationship,
as well as testimony by her husband, James Dehollander, that
Dr. Pakhomov tried to prevent their marriage. (Doc. 10-18 at
52-53). Dr. Pakhomov did not describe Ms. Dehollander's
testimony in any further detail, but he did assert that as a
result of statements Ms. Dehollander made to the police about
her relationship with him, she was charged with perjury and
had to perform community service. (Id. at 34 n.7).
Pakhomov also referred to testimony that he showed someone
named Gloria Green a note and that he provided law
enforcement with a different note. (Doc. 10-18 at 56). He did
not explain who Ms. Green was, why he showed her the note, or
what either note said. (See id.). Instead, he
alleged that trial counsel's cross-examination of Ms.
Green opened the door to harmful testimony that
“fuel[ed] . . . speculation that the note provided to
law enforcement was forged.” (Id.). Sergeant
Archer testified that he requested a handwriting analysis of
the notes, but the analysis was never completed.
(See Doc. 10-18 at 34-35 & n.8).
years before Dr. Pakhomov's trial for Ms. Zakin's
murder, “there was a great deal of pre-trial publicity,
” including “dozens of articles . . . as well as
frequent television reports” that Dr. Pakhomov alleged
included prejudicial and incorrect information about the
evidence against him. (Doc. 10-18 at 18-22).
state trial court did not record most of the voir dire, but
did record some of the qualifying questions that it asked the
forty-person venire. (Doc. 10-18 at 25-26). For example, the
transcript reflects that the state trial court asked the
venire if any of them had a fixed opinion as to the guilt or
innocence of the defendant. (Id. at 26; Doc. 10-4 at
65). Three potential jurors raised their hands in response to
that question, and at some point a fourth juror also
indicated that she had a fixed opinion on the case. (Doc.
10-18 at 26; Doc. 10-4 at 65, 70). The state trial court
conducted an individual voir dire of those four potential
jurors, and each stated that she believed Dr. Pakhomov was
guilty based on information she had learned about the case
before being called for jury duty. (Doc. 10-18 at 26; Doc.
10-4 at 72-76, 78-83). Specifically, three of the potential
jurors had been exposed to pretrial media reporting, and one
had obtained information from speaking with someone else
about the case. (Doc. 10-4 at 72, 75, 79, 82). The state
trial court struck each of the four potential jurors for
cause. (Doc. 10-18 at 26; Doc. 10-4 at 85).
jury found Dr. Pakhomov guilty of murder (doc. 10-7 at 180),
and the state trial court sentenced Dr. Pakhomov to 45 years
imprisonment (doc. 10-8 at 6).
magistrate judge set out the procedural history at length in
his report and recommendation and the court will not
reiterate that entire history here. (See Doc. 14 at
1-7). Of relevance to this memorandum opinion, Dr. Pakhomov
retained an attorney to represent him at trial. (Doc. 10-18
at 65-66). At some point after the trial, the attorney
apparently placed a lien on Dr. Pakhomov's case files
because Dr. Pakhomov had not paid him. (See Doc. 8
at 118; Doc. 8-12 at 2; Doc. 8-15 at 2). Dr. Pakhomov's
habeas counsel was unable to obtain the case files either
from trial counsel or from the Rule 32 court. (See
Doc. 8 at 118; Doc. 10-21 at 97-99).
without the case files, Dr. Pakhomov filed in state court an
amended petition for post-conviction relief under Alabama
Rule of Criminal Procedure 32, asserting that (1) the denial
of access to his case files violated his due process rights;
(2) the State violated Brady by failing to disclose
the interview with Mr. Burgess, a plea agreement with Ms.
Dehollander, and a report on the handwriting in the note or
notes Dr. Pakhomov provided to the police; and (3) trial
counsel provided ineffective assistance in a number of ways.
(Doc. 10-18 at 9-13, 32-35, 43-61).
state trial court denied Dr. Pakhomov's amended Rule 32
petition in part on the merits and in part as time-barred.
(Doc. 10-21 at 97-103; Doc. 10-22 at 2-4). On appeal, the
Alabama Court of Criminal Appeals declined to address the
timeliness of the petition and affirmed the denial entirely
on the merits. (Doc. 8 at 18-41). It determined that one of
Dr. Pakhomov's Brady claims failed as a matter
of law and the rest were insufficiently pleaded.
(Id. at 33-34). And it held that Dr. Pakhomov's
ineffective assistance claims failed because although he had
adequately pleaded deficient performance, he had failed to
sufficiently plead prejudice. (Id. at 39-40). The
Alabama Supreme Court denied a writ of certiorari without an
opinion. (Doc. 10-30).
stated above, this court reviews the Alabama Court of
Criminal Appeals' decision because it is the last state
court decision to provide a rationale for denying Dr.
Pakhomov's claims. See Wilson, 138 S.Ct. at
1192. The Alabama Court of Criminal Appeals denied the claims
at issue in this memorandum opinion-Claims Two and Five-as
either facially meritless or insufficiently pleaded.
(See Doc. 8 at 33-34, 39-40). The Eleventh Circuit
has repeatedly held that an Alabama court's denial of a
Rule 32 petition as insufficiently pleaded is a ruling on the
merits for purposes of federal habeas review. See Boyd v.
Comm'r, Ala. Dep't of Corr., 697 F.3d 1320, 1331
(11th Cir. 2012); Borden v. Allen, 646 F.3d 785, 813
(11th Cir. 2011); Powell, 602 F.3d at 1273.
Accordingly, the Alabama Court of Criminal Appeals'
decision is an adjudication on the merits for purposes of the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). See 28 U.S.C. § 2254(d).
prohibits a federal court from granting habeas corpus relief
if “the adjudication of the claim . . . resulted in a
decision that 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). “[T]he phrase
‘clearly established Federal law, as determined by the
Supreme Court of the United States' . . . . refers to the
holdings, as opposed to the dicta, of [the ...