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Pakhomov v. Billups

United States District Court, N.D. Alabama, Northeastern Division

March 18, 2019

PHYLLIS J BILLUPS, et al., Respondents.



         Andrew 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 trial;
(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).

         The 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).

         The 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.

         But Dr. 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 claims.


         In 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.

         Dr. 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).

         Shortly 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.).

         Investigators 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 at 84).

         Despite 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).

         Investigators 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).

         The 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).

         Dr. 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).

         In the 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).

         The 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).

         The 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).


         The 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).

         Proceeding 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).

         The 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).


         As 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).

         AEDPA 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 ...

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