Bierenbaum v. Graham
| Decision Date | 25 May 2010 |
| Docket Number | Docket No. 08-1375-pr. |
| Citation | 607 F.3d 36 |
| Parties | Robert BIERENBAUM, Petitioner-Appellant,v.Harold D. GRAHAM, The Superintendent of Auburn Correctional Facility, Andrew Cuomo, Attorney General State of New York, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
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Marcia J. Silvers, Marcia J. Silvers, P.A., Miami, FL, and Mark D. Seiden, Mark Seiden, P.A., Miami, FL, for Petitioner-Appellant.
Mark Dwyer, Assistant District Attorney, on behalf of Robert M. Morgenthau, District Attorney, New York County, New York, NY, for Respondents-Appellees.
Before: CALABRESI, HALL, Circuit Judges, SESSIONS,* District Judge.
Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree see N.Y. Penal Law § 125.25[1], and sentenced to a term of imprisonment of twenty years to life. Currently incarcerated, Bierenbaum appeals from the February 26, 2008 judgment of the United States District Court for the Southern District of New York (Sweet J.) that denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Bierenbaum v. Graham, No. 06 Civ. 2120, 2008 WL 515035 (S.D.N.Y. Feb.25, 2008).
Bierenbaum claims that he was denied his Sixth Amendment right to effective assistance of counsel at trial, and that the admission at trial of numerous out-of-court statements made by the victim violated the Confrontation Clause of the Sixth Amendment. We affirm.
I. BACKGROUND
Bierenbaum's wife, Gail Katz Bierenbaum, was last seen on July 7, 1985. Her body was never found. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. After an eight-day trial by jury in October 2000 before the Honorable Leslie Crocker Snyder in the Supreme Court of the State of New York, County of New York, the jury returned a verdict of guilty to the charge. Bierenbaum was sentenced on November 29, 2000.
Gail Katz and Robert Bierenbaum were married in August 1982. They resided in a twelfth-floor apartment on East 85th Street in Manhattan. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University.
On Saturday, July 6, 1985, Katz kept a follow-up appointment with her gynecologist, and made a further appointment in December. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. She told her friend that she was going to leave her husband that weekend, and that she was looking for another place to live.
On the evening of Sunday, July 7, 1985, Bierenbaum attended a family gathering for a nephew's birthday in New Jersey, without Katz. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. Although Bierenbaum did not express any concern about his wife at the party, later that evening at a friend's house he appeared distraught and called the apartment a couple of times. To his friend he related that he and Katz had an argument that morning and that she had left the apartment to sunbathe in Central Park wearing shorts, sandals and a halter top.
Close to midnight that evening Bierenbaum telephoned Dr. Yvette Feis, one of Katz's friends, asking if she knew where Katz was. Bierenbaum told Feis that they had had an argument, that she had gone to Central Park and not returned, and that she was still missing when he returned from a family party in New Jersey.
Katz did not keep her regularly scheduled psychotherapy appointment on July 8. Bierenbaum called her therapist and others on that day asking if they had seen her. That evening Bierenbaum filed a missing persons report indicating that when Katz was last seen she was wearing pink shorts and a white t-shirt. He told the detective assigned to investigate the case that he had last seen his wife on July 7 at approximately 11 a.m., and that she had left the apartment to get some sun in Central Park. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey.
No one, other than Bierenbaum, reported seeing Katz after July 6.
Detective Virgilio Dalsass from the 19th precinct, where Bierenbaum and Katz resided, and Detective Thomas O'Malley from the Missing Persons Bureau were assigned to investigate the case. In the week after Katz was reported missing, Dalsass left several telephone messages for Bierenbaum, none of which were returned. Dalsass had numerous telephone calls from members of Katz's family during that same time period. On July 14, Dalsass met with Bierenbaum, his father and Katz's parents. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. Bierenbaum stated that he had come home from work at approximately 5 p.m. on Friday evening, that they went to a movie about 8 p.m. and returned about midnight. He described going to work Saturday morning, leaving the hospital and visiting his father, returning home around noon to go out to eat and do some shopping with his wife, including buying bras at a lingerie store and cat food at a pet supply store. Katz cooked steaks that night and they had a romantic candlelight dinner.
Bierenbaum told Dalsass that he had awakened at approximately 9:30 Sunday morning, that Katz had received a telephone call from an acquaintance that disappointed her, and that she left at about 11 a.m. after an argument, telling him that she intended to go to Central Park to get some sun. Bierenbaum repeated that he had remained in the apartment all day until 5:30 p.m., when he left for the family party in New Jersey, arriving there at approximately 6:30 p.m. He returned from New Jersey at approximately midnight. He called Katz's mother to see if she had heard from Katz, and went to bed. The next morning he went to work, and that evening reported Katz missing.
The police searched for Katz between her apartment and Central Park and found no trace of her. Friends and family posted pictures of Katz in the neighborhood. Dalsass contacted several individuals whose names he had obtained from Bierenbaum or Katz's family who might have information about Katz. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner.
Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. He advised O'Malley that their building doorman, Edgar, had seen Katz leave at about 11 a.m. on July 7. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Bierenbaum told O'Malley that he and Katz had a mild argument Friday night which continued on Saturday, whereupon Katz told him that she was going to Central Park to cool off at about 11 a.m. Bierenbaum said that he had spent some time at the apartment waiting for Katz to return, but then left at some point to visit his family in New Jersey. He said that he had called Katz's mother and two of her friends to see if she was there. When O'Malley asked him why he waited until the evening of the following day to report Katz missing, Bierenbaum stated that he felt she would return, and when she didn't friends advised him to notify the police. During their second conversation, Bierenbaum told O'Malley that he had been mistaken and that the doorman thought it was another day that he had seen Katz.
Bierenbaum told O'Malley that the marriage was in bad shape and that both of them were in therapy to attempt to improve their relationship. He told O'Malley that Katz was depressed and suicidal. O'Malley asked if Bierenbaum had ever hit his wife. Bierenbaum said no. O'Malley asked if he had ever choked his wife to the point of unconsciousness, and Bierenbaum said that he didn't want to speak about that.
In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. Bierenbaum said he would get back to him, but did not. In September Dalsass finally secured permission to search Bierenbaum's apartment. Bierenbaum's attorney gave permission for the police to search for fingerprints and anything that might help them identify Katz. Although the police wished to search for any evidence that would shed light on Katz's disappearance, the investigators felt they did not have probable cause to obtain a search warrant. The search was thus limited to the scope of the permission given. This limited search was conducted on September 30; nevertheless at that time Dalsass looked around the apartment to see if he could detect any evidence that a crime had been committed there. He did not find anything.
In September 1986 Hope Martin, an investigator from the District Attorney's office, was assigned to investigate Katz's disappearance. Martin learned that Bierenbaum was a licensed pilot. She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. On October 17, 1986 she learned that Bierenbaum had rented an airplane from Mac Dan Aircraft Rental at Caldwell Airport in Fairfield, New Jersey on July 7, 1985, the day Katz disappeared. A forensic examination of the aircraft yielded no results. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results.
The investigation was closed in April 1987. In May 1989 a torso found washed up on a beach in Staten Island was determined by x-ray comparison to be Katz. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. Bierenbaum was charged with murder in the second degree in an indictment returned December 8, 1999.
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