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United States ex rel Abramov v. Chandler

May 17, 2006

UNITED STATES EX REL. YECHIEL ABRAMOV (#B-71340), PETITIONER,
v.
NEDRA CHANDLER, WARDEN, DIXON CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Petitioner Yechiel Abramov, by counsel, filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, the Court denies Abramov's petition.

BACKGROUND

Abramov does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's opinions affirming the judgments of the Circuit Court of Lake County, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Whitman v. Bartow, 434 F.3d 968, 969 (7th Cir. 2006). The Court, therefore, adopts the underlying facts as set forth by the Illinois Appellate Court, Second Judicial District, in Abramov's direct and post-conviction appeals. See People v. Abramov, No. 2-95-1401 (2d Dist. Apr. 14, 1997) (unpublished order) People v. Abramov, No. 2-99-0424 (2d Dist. Apr. 24, 2001) (unpublished order); People v. Abramov, No. 2-03-0540 (2d Dist. May 13, 2004) (unpublished order). The Court starts with a brief recounting of the facts as determined by the Illinois Appellate Court when it resolved Abramov's second direct appeal. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006).

I. Factual Background

On April 12, 1995, Lamar Jones and Leroy Solti broke into Abramov's home located at 212 Killarney Road in Grayslake, Illinois. Abramov and his wife had moved into this home approximately five weeks earlier. At the time Jones and Solti broke into the home, Abramov's wife, Angela, and son were present while Abramov was at work. Jones and Solti stabbed and shot Angela. The men were apprehended shortly thereafter and told the police that Abramov had hired them to kill his wife.

At trial, Solti testified that he first became acquainted with Abramov when Solti took his car in for repairs at the automotive shop where Abramov worked. After receiving an estimate for his car repairs, Solti told Abramov that he did not have enough money to pay for the repairs. Abramov told Solti not to worry because he had a job for him to do. Specifically, Abramov asked Solti to kill his wife, Angela.

Two other witnesses -- Nathan Weaver and Eric Bell -- testified at trial that Abramov had previously attempted to hire them to kill Angela. At that time, Abramov and his family lived in an apartment on Cicero Avenue in Chicago, Illinois. Although neither Weaver nor Bell intended to kill Angela, they let Abramov believe that they planned to kill her because Abramov paid them money. At one point, Weaver and Bell staged a robbery with Abramov's cooperation where they said they intended to kill Angela. They did not kill Angela, however, but took Abramov's money instead.

II. Procedural Background

Following a bench trial in the Circuit Court of Lake County, Illinois, the state court judge found Abramov guilty of three counts of solicitation of murder for hire and one count each of attempted first-degree murder, home invasion, armed violence, aggravated battery with a firearm, and conspiracy to commit first-degree murder. (R. 22-1, Respondent's Rule 5 Exs., Ex. C.) The Circuit Court then sentenced Abramov to concurrent terms of 35 years for each count of solicitation of murder for hire, 30 years for attempted first-degree murder, 30 years for aggravated battery with a firearm, and 15 years for conspiracy to commit first-degree murder. (Id., Ex. A.)

Abramov appealed his conviction and sentence to the Illinois Appellate Court, Second District. On April 14, 1997, the Illinois Appellate Court reversed and remanded Abramov's case for a new trial due to constitutionally ineffective assistance of counsel. (Id., Ex. C.) The State then filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court that the court denied on October 1, 1997. (Id., Exs. D, E.)

After the second bench trial before the Circuit Court of Lake County, the state court judge convicted Abramov of one count each of solicitation for murder for hire, attempted first-degree murder, and aggravated battery with a firearm. (Id., Ex. H.) The Circuit Court then sentenced Abramov to two concurrent 29-year terms of imprisonment for solicitation of murder for hire and attempted first degree murder, and also sentenced Abramov to a consecutive 6-year term for aggravated battery for a total of 35 years' imprisonment. (Id.)

Thereafter, Abramov appealed his conviction and sentence to the Illinois Appellate Court, Second District, raising the following issues: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) venue was improper for one count of the indictment; (3) the trial court erred in denying his motion to dismiss and motion in limine based on the State's discovery violations; and (4) the trial court improperly granted the State's motion in limine barring cross-examination of cooperating witness Solti concerning his conversation with his attorney based on the attorney-client privilege. (Id., Exs. F, H.) On April 24, 2001, the Illinois Appellate Court, Second District, affirmed the conviction and sentence. (Id., Ex. H.)

Abramov then filed a PLA to the Illinois Supreme Court, raising the following claims:

(1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying his motion to dismiss and motion in limine based on the State's discovery violations; and (3) the trial court improperly granted the State's motion in limine barring cross-examination of Solti about his conversation with his attorney based on the attorney-client privilege. (Id., Ex. I.) On October 3, 2001, the Illinois Supreme Court denied Abramov's PLA. (Id., Ex. J.) On April 8, 2002, Abramov filed a petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., and on February 28, 2003, Abramov filed an amended post-conviction petition. In his amended petition, Abramov raised the following arguments: (1) the prosecution of his second trial was improper because it was conducted, in part, by an assistant Illinois appellate prosecutor; (2) ineffective assistance of trial and appellate counsel; (3) the trial court erred in imposing a consecutive sentence on his conviction for aggravated battery with a firearm; (4) the trial court improperly shifted the burden of proof to Abramov; and (5) the trial court improperly granted the State's motion in limine barring cross-examination of Solti about his conversation with his attorney based on the attorney-client privilege. (Id., Ex. K.) On April 24, 2003, the Circuit Court of Lake County dismissed Abramov's post-conviction petition. (Id., Ex. L.)

Abramov appealed the dismissal of his post-conviction petition to the Illinois Appellate Court, Second District, raising the following claims: (1) ineffective assistance of trial and appellate counsel; (2) the post-conviction court erred in failing to grant relief where law enforcement officials either lost or destroyed tape-recorded conversations; and (3) the post-conviction court erred in perpetuating the exclusion of evidence regarding conversations between Solti and his attorney. (Id., Ex. M.) On May 13, 2004, the Illinois Appellate Court, Second District, affirmed the trial court's dismissal of Abramov's post-conviction petition. (Id., Ex. O.)

Abramov then filed a PLA to the Illinois Supreme Court asserting these claims: (1) the prosecution of his second trial was improper because it was conducted, in part, by an assistant Illinois appellate prosecutor; (2) the post-conviction court erred in failing to grant relief where law enforcement officials either lost or destroyed tape-recorded conversations; and (3) the post-conviction court erred in perpetuating the exclusion of evidence regarding conversations between Solti and his attorney. (Id., Ex. P.) On October 6, 2004, the Illinois Supreme Court denied Abramov's PLA. (Id., Ex. Q.)

On August 19, 2005, Abramov filed the present habeas petition pursuant to 28 U.S.C. § 2254(d)(1) raising the following constitutional claims: (1) the trial court violated his rights under the Confrontation Clause of the Sixth Amendment when the court granted the State's motion in limine to bar cross-examination of Solti concerning his conversation with his attorney; (2) the State did not prove him guilty beyond a reasonable doubt and the trial court improperly shifted the burden of proof to Abramov; and (3) the State violated his rights to due process, to a fair trial, and to confront witnesses when the State lost or destroyed tape recordings of telephone conversations between Abramov and law enforcement officers, but allowed the police officers to testify about the content of the tape recordings. (R. 1-1, Petition for Writ of Habeas Corpus.)

LEGAL STANDARDS

I. Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a court cannot grant habeas relief unless the state court's decision was contrary to, or an unreasonable application of law clearly established by the Supreme Court. Dunlap v. Hepp, 436 F.3d 739, 741 (7th Cir. 2006); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Supreme Court explained that a state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Id. at 405.

Under the "unreasonable application" prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. Id. at 407. "This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect." Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005); see also Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (state court decision must be objectively unreasonable). In other words, "[e]ven if the state court erroneously applied federal law, [courts] may only grant the writ if the decision was objectively unreasonable." Walker v. Litscher, 421 F.3d 549, 554 (7th Cir. 2005).

To be considered "unreasonable," a state court's decision must lie "well outside the boundaries of permissible differences of opinion." Woods v. McBride, 430 F.3d 813, 816-17 (7th Cir. 2005) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)); see also Dunlap, 436 F.3d at 745 (to be reasonable, state court decision must be minimally consistent with facts and circumstances of case); Hubanks v. Frank, 392 ...


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