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FRIEDGOOD v. KEANE
June 14, 1999
CHARLES E. FRIEDGOOD, PETITIONER,
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
The pro se habeas corpus petitioner, Charles E. Friedgood
("Friedgood" or the "petitioner"), filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, in which he claimed
the following six grounds for relief: (1) the prosecution failed
to prove his guilt beyond a reasonable doubt; (2) prosecutorial
misconduct; (3) the trial court erroneously refused to admit
certain defense testimony to refute the prosecutor's improper
statements concerning the petitioner's motive; (4) the trial
court erroneously refused to instruct the jury concerning the
time of death; (5) juror misconduct; and (6) ineffective
assistance of trial counsel.
In a Report and Recommendation dated March 16, 1999, United
States Magistrate Judge Viktor V. Pohorelsky recommended that
Friedgood's petition be denied in its entirety. Friedgood filed
objections to the Magistrate Judge's Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1), any party may file written
objections to the Report and Recommendation of the Magistrate
Judge. See also Fed.R.Civ.P. 72(a). Where, as here, objections
have been filed, the district court is required to make a de
novo determination as to those portions of the Report and
Recommendation to which objections were made. See
28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
The Court has carefully reviewed the record in the case, the
parties' submissions, Judge Pohorelsky's thoughtful, detailed and
thorough Report and Recommendation, as well as the petitioner's
objections, and concurs with Judge Pohorelsky's recommendations
for the reasons set-forth in his well-reasoned Report.
Accordingly, it is hereby
ORDERED, that the Court adopts the Report of United States
Magistrate Judge Viktor V. Pohorelsky, dated March 16, 1999,
recommending that Friedgood's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 be denied; and it is further
ORDERED, that Friedgood's petition for a writ of habeas
corpus is denied in its entirety; and it is further
ORDERED, that the Clerk of the Court is directed to close
REPORT AND RECOMMENDATION
The petitioner Charles Friedgood is a medical doctor who was
convicted of murdering his wife, Sophie Friedgood. On June 17,
1975, at approximately 10:00 p.m., the petitioner and his wife
returned home from an evening of dining out. Sophie spoke to
their daughter on the telephone around 11:00 p.m. that same
night, the last time any of her children spoke with her. On June
18, 1975, at 1:30 p.m., Sophie was found dead in her bedroom by
the family's maid. The official cause of death was eventually
determined to be by lethal injections of Demerol.
On the day his wife's death was discovered, acting in a
physician's capacity, Friedgood signed his wife's death
certificate, listing the cause of death as a nontraumatic
cerebral hemorrhage. In spite of his family's requests for an
autopsy, Friedgood had his wife's body removed from Nassau County
to Pennsylvania for burial. On June 19, 1975, members of the
Nassau County Police Department traveled to Pennsylvania and
requested that the body be returned to Nassau County for an
autopsy. Friedgood consented to the request. An initial autopsy
revealed that Sophie died from a lethal dose of Demerol. Several
weeks later, a second autopsy disclosed multiple injection sites
where the Demerol was administered, as well as ten ounces of food
in Sophie's stomach. The latter fact led the medical examiner to
the conclusion, later hotly disputed at trial, that Sophie died
no later than four to six hours after her last meal, which had
been eaten between 7:00 and 8:00 p.m. on June 17.
On June 22, 1975, officers from the Nassau County Police
Department executed a search warrant at the Friedgood home in
search of various items including Demerol, syringes, needles, and
Empirin. At Friedgood's request, his daughter surreptitiously
removed a bottle of Demerol, a syringe, Empirin tablets, and
Codeine pills from an upstairs file cabinet before the police
search. The police never recovered these items. During the next
few days, by forging his wife's signature the petitioner looted
his wife's assets at various safe deposit boxes, and purchased a
one-way ticket to London, while at the same time telling his
daughters that he was going to a motel for a few days to relax.
On the evening of June 25, the police found the petitioner on
board a flight to London in possession of cash, stocks, bonds,
and jewelry belonging to Sophie, with a combined value of
approximately $725,000. The petitioner voluntarily disembarked
and went to police headquarters for questioning. He explained the
situation as an attempt to hide his wife's assets from the
Internal Revenue Service. Police investigation later determined
that for years before his wife's death, Friedgood had carried on
an affair with one of his nurses. Some three months before
Sophie's death, the nurse had returned to her native Denmark with
her two children, both fathered by Friedgood.
Friedgood was subsequently arrested, and after a jury trial, he
was convicted on December 15, 1976 of Grand Larceny in the Second
Degree and Murder in the Second Degree for the deliberate slaying
of his wife, Sophie Friedgood. On January 27, 1977, the
petitioner was sentenced to a maximum of seven years imprisonment
on the grand larceny conviction and twenty-five years to life on
the murder conviction.
In 1980, the petitioner filed his first motion to vacate his
judgment of conviction pursuant to section 440.10 of New York
Criminal Procedure Law. On that motion, the petitioner asserted a
new claim of prosecutorial misconduct alleging, that the
prosecutor (a) coerced a potential defense witness, (b) misused a
grand jury subpoena, and (c) withheld exculpatory evidence from
the grand jury. In addition, the petitioner raised claims of
juror misconduct and of misrepresentations and perjury by the
state's expert witness. The court denied the motion to vacate his
conviction by order dated May 4, 1980. People v. Friedgood, No.
75-43049, slip op. at 4 (N.Y.Crim.Ct. 1980). The Appellate
Division affirmed the decision in People v. Friedgood,
85 A.D.2d 698, 449 N.Y.S.2d 643 (2d Dep't 1981), and granted the
petitioner leave to appeal to the New York Court of Appeals,
which unanimously affirmed the decision in People v. Friedgood,
58 N.Y.2d 467, 462 N.Y.S.2d 406, 448 N.E.2d 1317 (1983).
In 1992, the petitioner moved for the second time to vacate his
conviction, this time on grounds of ineffective assistance of
trial counsel. The County Court denied his motion on both
procedural and substantive grounds by order dated December 30,
1992 and, further, denied leave to appeal to the Appellate
The petitioner now raises six separate and distinct claims for
relief in the habeas petition presented to this court. These
claims, one of which encompasses eight sub-claims, are (1)
failure to prove guilt beyond a reasonable doubt; (2)
prosecutorial misconduct, which includes (a) wrongfully
testifying at the petitioner's pre-trial suppression hearing; (b)
adducing testimony regarding a missing bottle of Demerol in bad
faith; (c) wrongfully proffering testimony concerning the
petitioner's refusal to speak to the police without his counsel
present; (d) making improper statements in arguments to the jury;
(e) coercing a potential defense witness; (f) misusing a grand
jury subpoena; (g) withholding exculpatory evidence from the
grand jury; and (h) offering testimony from an expert witness who
misrepresented critical facts and gave false testimony; (3) the
trial court's erroneous refusal to admit defense testimony to
refute the prosecutor's improper statements about the
petitioner's motive;*fn1 (4) the trial court's erroneous refusal
to charge the jury concerning the time of death; (5) juror
misconduct; and (6) ineffective assistance of counsel.
Section 2254 of Title 28, United States Code provides:
[A] district court shall entertain an application for
a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
The district court must consider a pro se litigant's petition
for a writ of habeas corpus liberally. Cuadra v. Sullivan,
837 F.2d 56, 59 (2d Cir. 1988). In evaluating the state prisoner's
habeas corpus petition, it is the court's role to determine
whether the petitioner is "in custody in violation of the
Constitution or laws or treaties of the United States." Coleman
v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640
(1991); See 28 U.S.C. § 2254.
A. The Exhaustion Requirement
"The exhaustion doctrine is principally designed to protect the
state courts' role in the enforcement of federal law and prevent
disruption of state judicial proceedings." Rose v. Lundy,
455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A
petitioner must exhaust all available avenues of review by the
state courts before a federal court may consider an application
for habeas relief on the merits. See Caballero v. Keane,
42 F.3d 738, 740 (2d Cir. 1994).
The Second Circuit has set forth a two-pronged test to
determine whether the petitioner has exhausted available state
remedies. Velez v. People of State of New York, 941 F. Supp. 300,
309 (E.D.N.Y. 1996). The first prong requires that the
grounds for relief must have been "fairly presented" to the state
courts. Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992). To
satisfy this prong, the petitioner "`must have informed the state
court of both the factual and legal premises of the claim he
asserts in federal court.'" Lebron v. Mann, 40 F.3d 561, 567
(2d Cir. 1994) (quoting Daye v. Attorney Gen'l of New York,
696 F.2d 186, 191 (2d Cir. 1982) (en banc)). The Second Circuit
applies this standard liberally. See, e.g., Reid, 961 F.2d at
376. A habeas petitioner is not required to cite "chapter and
verse" of the Constitution. Daye, 696 F.2d at 194. The ways in
which a petitioner may fairly present to the state courts the
constitutional nature of his claim include (a) reliance on
pertinent federal cases employing constitutional analysis; (b)
reliance on state cases employing constitutional analysis in like
fact situations; (c) assertion of the claim in terms so
particular as to call to mind a specific right protected by the
Constitution; or (d) allegation of a pattern of facts that is
well within the mainstream of constitutional litigation. Id.
The second prong generally requires that the habeas applicant
"present . . . the substance of his federal claims to the highest
court of the pertinent state," Bossett v. Walker, 41 F.3d 825,
828 (2d Cir. 1994), unless state collateral review is
subsequently available, in which case a petitioner must first
collaterally attack his conviction in the state court. Dorsey v.
Irvin, 56 F.3d 425, 426 (2d Cir. 1995).
Ordinarily, if a prisoner has not satisfied the exhaustion
requirement pursuant to Section 2254, the petition must be
dismissed. See Rose, 455 U.S. at 513, 102 S.Ct. 1198. Although
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") amendments to Section 2254 now permit a court to deny a
petition for habeas relief on the merits even when complete
exhaustion has not occurred, e.g., Kelly v. Keane, No. 96 Civ.
1742, 1996 WL 640892, at *2 (S.D.N.Y. Nov. 4, 1996), the
amendment does not apply in non-capital cases that were already
pending when the Act was passed. See, e.g., Lindh v. Murphy,
521 U.S. 320, 117 S.Ct. 2059, 2061-62, 138 L.Ed.2d 481 (1997).
Since the petitioner here filed his petition prior to the
enactment of the AEDPA, the "total exhaustion requirement"
applies in this case. Rose, 455 U.S. at 513, 102 S.Ct. 1198.
Therefore, if any claim in the original petition
is not exhausted, the petition must be entirely dismissed.
The petition at issue contains six claims and eight sub-claims.
All of these claims were raised either on the petitioner's direct
appeal or in his post-judgment motions and, ...