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United States ex rel Abramov v. Chandler

June 29, 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

Habeas petitioner Yechiel Abramov, by counsel, has filed the present application for a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c)(2) and Federal Rule of Appellate Procedure 22(b). Abramov seeks to appeal the Court's May 17, 2006, Memorandum, Opinion, and Order denying all of his habeas claims under 28 U.S.C. § 2254(d). For the following reasons, the Court denies Abramov's request for a COA.

BACKGROUND

I. Factual Background

On April 12, 1995, Lamar Jones and Leroy Solti broke into Abramov's home in Grayslake, Illinois. At that time, Abramov's wife, Angela, and his son were home and Abramov was at work. Jones and Solti stabbed and shot Angela. The police apprehended Jones and Solti shortly thereafter at which time they told the police that Abramov had hired them to kill his wife.

At trial, Solti testified that he first became acquainted with Abramov when he 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 could not afford the repairs. Abramov then told Solti not to worry because he had a job for him to do. Abramov consequently asked Solti to kill his wife, Angela.

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

After his second bench trial before the Circuit Court of Lake County, Illinois, 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. The Circuit Court sentenced Abramov to two concurrent 29-year terms of imprisonment for solicitation of murder for hire and attempted first degree murder. The trial court also sentenced Abramov to a consecutive 6-year term for aggravated battery.

II. Federal Court Procedural Background

On August 19, 2005, Abramov filed his habeas petition pursuant to 28 U.S.C. § 2254(d) raising the following claims: (1) 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 at trial; (2) 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; and (3) the State did not prove him guilty beyond a reasonable doubt.

In denying Abramov's habeas petition, the Court reached the merits of Abramov's Confrontation Clause and sufficiency of the evidence claims concluding that the Illinois Appellate Court's decision was not an unreasonable application of clearly established Supreme Court law. See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Dunlap v. Hepp, 436 F.3d 739, 741 (7th Cir. 2006). As to Abramov's destruction of evidence claim, the Court concluded that he did not fully and fairly present both the operative facts and controlling legal principles to the Illinois Supreme Court in his petition for leave to appeal. See Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005). As such, Abramov procedurally defaulted this claim, see Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004), and did not argue or establish an exception to overcome this procedural default. See Coleman v. Thompson, 501 U.S. 729, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

LEGAL STANDARD

Under 28 U.S.C. § 2253, a habeas petitioner does not have the absolute right to appeal a district court's denial of his habeas petition; instead, he must first request a certificate of appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). "The purpose of requiring a certificate of appealability is to conserve judicial resources by screening out clearly unmeritorious appeals." Buie v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003). A habeas petitioner is entitled to a certificate of appealability only if he can make a substantial showing of the denial of a constitutional right. Miller-El, 537 U.S. at 336; Cosby v. Sigler, 435 F.3d 702, 708 (7th Cir. 2006).

Under this standard, Abramov must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). While a petitioner seeking a COA need not demonstrate that he will prevail on appeal, he "must prove something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 338 (internal quotation marks and citation ...


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