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FRIEDGOOD v. KEANE

June 14, 1999

CHARLES E. FRIEDGOOD, PETITIONER,
v.
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 this case.

SO ORDERED.

REPORT AND RECOMMENDATION

FACTUAL BACKGROUND

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 Division.

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.

DISCUSSION

I. PROCEDURAL LAW

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
  States.

28 U.S.C. § 2254.

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, ...


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