The Honor able William K. Sessions I I I , Chief J udg e, United States District Court for * the District of Ve rmont, sitti ng by desig nation. 08- 1375- pr Bi er enbaum v. G r aham U N IT E D S T A T E S C O U R T O F A P P E A LS F OR THE S EC OND C IR C U IT

_______________ August Term, 2008 (Argued: J uly

8, 2009 Dec ided: May 25, 2010) Docke t No. 08-1375-pr

_______________ R OB E R T B I ER EN B AUM , Pe tit ion e r- Ap pe lla nt,
—v.— H AR OL D D. G R AHAM , THE S U PE RI N T EN D EN T O F A UB UR N C O RR EC T I O N A L F AC I L I TY ,

ANDREW C UO MO , A TTORN EY G EN ER A L S T A T E O F N EW Y O RK , Respondents-A

ppellees
.

_______________ B e f o r e : C A LA BR ESI , H A LL , Circuit Judges , S ES S I ONS , District Judge *

_______________ Appea l from the denia l of a pe tition for a writ of ha beas c orpus pursuant to 28 U.S.C. § 2254 by the United States District Court for the Southern District of Ne w York ( Sweet, J .). Petitioner-Appellant Rober t Bier enbaum a

rgues that his trial counsel r ender ed inef fec tive2

assistance in violation of the Six th Amendment, and that out-of -cour t statements wer e admitted at trial in violation of the Confrontation Clause of the Six th Amendment. A F F I RMED . C A LA BR ESI , Circuit J udg e, filed a concur ring opinion.

_______________ M AR C I A J. S I LVERS , Marc ia J . Silvers, P.A., Miami, Florida, and M A RK D. S EI DEN , Mark Seiden, P.A., Miami, Florida, for

Pe tit ion e r-

Ap pe lla nt. M A RK D WYER , Assistant District Attorney , on be ha lf o f Robert M. Morg enthau, District Attorney , New Y ork County , New Y ork, Ne w York, for Respondents-Appe llees.

_______________ SESS I ONS, District Judge : Petitioner-Appellant Rober t Bier enbaum wa s convicted a fter a jury trial of murde r in the second de g ree , seeN.Y. Penal L aw § 125.25[1], and sentence d to a term of imprisonment of twenty y ear s to life. Currently

incar cer ated, B iere nbaum appe als from the F ebrua ry 26, 2008 judgme nt of the United States District Court for the Southern District of Ne w York ( Sweet, J. ) that denied his petition for a writ of habe as cor

pus pursuant to 28 U.S.C. § 2254. See Bierenbaum v . Graham , No. 06 Civ. 2120, 2008 W L515035 (S.D.N.Y. F eb. 25, 2008). Bie renba um claims that he wa s denied his Six th Amendment rig ht to effe ctive assistanc e of counse l at trial, and that the a dmission at trial of numerous out-of- court stateme nts made by the victim violated the Confrontation Clause of the Six th Amendment. We aff irm. BACK GR OUND Bie renba um’s wife, G ail Katz Bier enbaum, wa s last seen on July 7, 1985. Her

body was
ne ve r f ound . In 1 99 9 B ie re nb a

um w a s in dic te d a

nd c ha rg e d w ithmur de r i n th e se c on d d e g re e in her de ath. Afte r an e ight- day trial by jury in October

2000 befor e the Honor able L eslie Crocke r3

Sny der in the Supre me Court of the State of N ew Yor k, County of Ne w York, the jury

returne d a verdic t of g uilty

to the char g e. B iere nbaum was se ntence d on November 29, 2000. A. The Di sa ppe ar anc e of G ailK at z Bie r e nbaum Gail Katz and Robert B iere nbaum wer e mar ried in August 1982. They resided in a tw e lf th - floor apa

rtment on East 85th Street in Manhattan. Bie renba um had g raduated from medical sc hool in 1978, and was a surg ical re sident at Maimonides Medica l Center in B rookly n, New Y ork. Katz was a g raduate student pursuinga Ph.D. deg ree in clinical psy cholog y at L ong I sland University
. On Saturday , J uly

6, 1985, Katz kept a follow-up a ppointment with her g y

necolog ist, and made a further appointment in Dece mber. She ke pt an appointment with her ha irdresse r, and me t wi th a c los e fr ie nd

that a ft e rn oo n f

or a c ou ple of ho ur s. She tol d h e r f

ri e nd that sh e wa s g oin g to leave her husba

nd that wee kend, and that she was lookingfor a nother plac e to live. On the eve ning of

Sunday , J uly

7, 1985, Bie renba

um attended a

family g ather ing f

or a
ne ph e w’ s b ir

thd ay in N e w Je rs e y , w ith out K a tz. B ie re nb a um s a id t hat sh e ha d g on e out e arl ie r i n the day and had not r eturne d to their apa rtment. Althoug h Bie renba um did not ex press a

ny
conce rn about his wife at the par ty , later that eveningat a f riend’s house he appe are d distraug ht and ca lled the apa

rtment a c ouple of times. To his friend he related that he a nd Katz had an argument that morning and that she ha d left the a partment to sunbathe in Centra l Park wea ring shorts, sandals and a

halter top. Close to midni g ht that eveningBie renba um telephoned Dr . Yvette F eis, one of K atz’s friends, a sking if she knew whe re K atz was. Bie renba um told Feis that they

had had a

n4

argument, that she had g one to Central Par k and not re turned, a

nd that she wa s still missing when h e r e tur n e d f r o ma f am i l y p arty i nN e w J e r s e y. Katz did not keep her

regularly schedule d psy chother apy appointment on J uly

8. Bie renba um called he r thera

pist and others on that day asking if they

had see n her. That evening Bie renba um filed a missing pe rsons repor t indicating that when Katz was last seen she wa s
wea ringpink shorts and a white t-shirt. He told the detective a ssigne d to investigate the ca se that he had la st seen his wife on July 7 at appr ox imately

11 a.m., and that she had lef t the apar tment to g e t so me sun in

Ce ntr a l Park . H e tol d th e de te c tiv e that he re ma ine d at ho me un til approximately

5:30 p.m., when he lef

t for Ne w J erse y . No one, other

than B iere nbaum, re ported see ing K atz after July 6. B. Investigation Detec tive Virg ilio Dalsass from the 19th pre cinct, whe re B iere nbaum and Katz resided,
and De te c tiv e Th oma s O ’M a lle y fr om t he Mis sin g Pe rs on s B ur e a u w e re a ssi g ne d to inv e sti g a te the ca se. In the wee k afte r Katz was reporte d missing, Dalsa ss left sever al telephone messag es for B iere nbaum, none of

which we re r eturne d. Dalsass ha d numerous telephone calls fr om
me mbe rs of

Katz’ s f amil y duri ngthat sa

me tim e pe ri od . O n July

14 , D a lsa ss m e t w ith Bie renba um, his father a

nd Katz’s pare nts. Dalsass aske d Bie renba um to narrate spec ifically and
e xac tly ho w h e sp e nt t

he we e ke nd

that K a tz di sa

pp e are d. B ie re nb a

um s tate d th a t he ha d c ome ho me fr om w or

k at a pp ro ximate ly

5 p .m. on

F ri da y e ve nin g , th a t th e y

we nt t o a mov ie a bo ut 8 p.m. and re turned a

bout midnight. He de scribed g oing to wor k Saturday

morning , leavingthe ho sp ita l and

vis iti nghis fathe r, re tur

nin g ho me aro un d n oo n to g o o ut t o e a t and do so me5

sh op pin g wi th h is w if

e , in c lud ingbuyingbr a s at a lin g e ri e sto re and

c a t f oo d at a pe t su pp ly store. Katz cooked steaks that nig ht and they had a r omantic ca

ndlelight dinner
. Bi er en b au mt o l d

Da l s as s th ath e h adaw ak en edat ap p ro x i m at el y 9 : 3 0 S un d ay

m o rn i n g, that Katz had re ceive d a telephone call fr om an ac quaintance that disappointed her, a nd that she left at a bout 11 a.m. afte r an a

rgument, telling him that she intende d to go to Centra l Park to g et some sun. Bie renba

um repe ated that he had re mained in the apa rtment all day

until 5:30 p.m ., when he left for

the family

party in New Jersey , arr iving ther e at a pproxi mately

6:30 p.m. He returne d from Ne w J erse y at appr ox imately

midnight. He c alled Katz’s mot her to see if she had hear d from Katz, and went to bed. The ne x t morning he went to work, a nd that eveningrepor

ted Katz missi ng . The police sear ched f

or Katz between her

apar tment and Central Par

k and found no tra ce of her . Fr iends and fa

mily posted pictures of

Katz in the neig hborhood. Da lsass contac ted
sever al individuals whose names he had obtained f rom Bie renba

um or Katz’s family

who might have inf or matio n a bo ut K a tz. T he se inc lud e d E lle n Sc hw art z, F ra nc e sc a B e a le , K a tz’ s th e ra

pis t Dr. Sy bil Bar an, Anthony

Seg alas a nd Kenne th Feine r. Bie renba um had contac ted O’Ma lley on J uly 10 to inquire about the progress of the investigation. He advised O ’Malley that their building door

man, Edg ar, ha d seen K atz leave at about 11 a.m. on Jul y

7. O’Malley

met with Bier enbaum on the 13th a nd reque sted details of the previous we ekend. B iere nbaum told O’Malley that he and K atz had a mild argument Fr iday night whic h continued on Saturda y , wher eupon Katz t old him that she was g oing to Centra l Park to cool off at about 11 a.m. B iere nbaum said that he ha d spent some time at the apa rtment6

wa iti ngfo r K a tz to re tur

n, but th e n le ft

a t so me po int

to v isi t hi s f

amil y in N e w Je rs e y . H e sa id that he had c alled Katz’s mot her a nd two of her

friends to see if she wa s there. When O’ Malley
as k edh i mwh y

h e w ai t edun t i l th e e v en i n g o f t h e f o l l o wi n g d ay

t o re p o rt Ka t z m i s s i n g, B ie re nb a um s tate d th a t he fe lt s he wo uld re tur n, a nd wh e n s he did

n’ t f ri e nd s a dv ise d h im t o notify the police. Dur ing the ir second c onversation, Biere nbaum told O’Malley that he had be en mistaken and that the door man thoug ht it was another da y that he had se en Katz. Bie renba um told O’Malley

that the marr iag e wa s in bad shape a nd that both of them wer e in therapy to attempt to improve their re lationship. He told O’Malley that Katz was depr essed and suicidal. O’ Malley

asked if B iere nbaum had e ver hit his wife. B iere nbaum said no. O’Malley asked if he had eve r choke d his wife to the point of unconsc iousness, and B iere nbaum said that he didn’t wa

nt to speak about that. In J uly , ear ly

in the investigation, Dalsass asked B iere nbaum if he c ould look around the
a p art m e n t . B i e r e nb a

u ms a i d h e w o u l d g e tb a c k t o h i m , b u td i d

n o t . In S e p t e mb e r

D a l s a s s f i n a l l y
secur ed per

mission t o sear ch B iere nbaum’s apa rtment. Bie renba

um’s attorney

g ave pe rmission for the police to searc h for f inge rprints and a

ny thing that might help them identify Katz. Although the police wished to sea rch f or any evidenc e that would shed lig ht on Katz’s disappea ranc e, the investig ators fe lt they did not have proba

ble ca use to obtain a sea

rch w arr ant. The sea rch w as thus limit ed to the scope of the pe rmission given. This limited sear ch wa s conducte d on September 30; ne verthe less at that time Dalsass looked a round the a

partment to see if he c ould detect a

ny evidenc e that a c rime had be en committed there . He did not find any thing. In September 1986 H ope Mar tin, an investigator from the D istrict Attorney ’s offic e, wa s7

assig ned to investig ate Katz’s dis appea ranc e. Mar

tin learne d that Bie renba

um was a lice nsed pilot. S he wa

nted to know whethe r B iere nbaum had f lown an air

plane on the da

y of his wife’ s disappea ranc e. On Oc tober 17, 1986 she le arne d that Bie renba um had re nted an a irplane f rom Mac D an Airc raf

t Rental at Caldwell Airport in F airfie ld, New Jersey on J uly 7, 1985, the day Katz disappear ed. A f

orensic e x amination of the a ircra ft yielded no re sults. Forensic te sts of two automobiles that Bier enbaum wa s driving at the time also yielded no re sults. The investig ation was c losed in April 1987. In May 1989 a torso found w ashed up on a beac h in Staten I sland was de termined by x -ra y compar ison to be Katz. I n 1998 the investig ation
was re opened, a

nd the body

was e x humed and de termined by DNA c omparison not to be Katz. Bie renba um was cha

rg ed with murder

in the second de g ree in an indictment returne d Dec ember 8, 1999. C. The Evid ence at

Trial In addition to the evidence detailed a bove, the pr osecution marsha led a we alth of
c ir c ums tanti a l e vid e nc e that, i n th e wo rd s o f t he Ap pe llate Di vis ion , “ wh e n . . . a tte nti ve ly revie w[ed] and critically

assesse[d] . . ., and after

applying a ll natural and r easona ble infer ence s,” led to the “inesc apable ” conc lusion that Biere nbaum murder ed his wife on July 7, 1985, “and the evidenc e excludes beyond a re asonable doubt any rea sonable hy

pothesis of innocenc e.” Pe op le v. Biere nbaum , 748 N.Y.S.2d 563, 574 (N.Y. A pp. Div. 2002). The e vidence at trial wa s set forth in detail in the district cour t’s Fe bruar

y 25, 2008 opinion, and we r ecount be low only the evidenc e nec essar

y to resolve the issues pr esente d on appea l.8 1. Kat z’s stat em ents Over defe nse objec tion eleven witnesse s--fr iends, relatives, colleagues and K atz’s thera pist--wer e per

mitted to testi fy

about conve rsations they had with Katz betwee n 1983 and 19 85 in whic h s he ta lke d a bo ut t he state of

he r m arr ia g e , h e r f

e ar o f B ie re nb a

um’ s te mpe r, his controlling behavior , his threats, and a n argument in 1983 during which he c hoked her to the point of unconsciousness. Cer tain of these w itnesses also testified that Katz t old them she had
rec eived a

letter fr om Bier enbaum’ s therapist wa rning her that Bier enbaum wa s a dang er to he r, and that Katz i ntended to thre aten B iere nbaum with disclosure of this letter. T he trial c ourt permitted this testimony

as bac kg round evide nce of the state of the marria g e and K atz’s state of min d, and B ie re nb a um’ s mo tiv e , inte nt a

nd ide nti ty . T he tr ia l c ourt

g ave a lim iti ngins tr

uc tio n to that eff ect a fter e ach w itness’s testimony and at the c lose of trial, a nd admonished the jury

that they wer e not to take this testimony as proof that Bie renba

um had ac ted in acc ordanc e with the statements, or a s evidenc e of pr opensity
. Hillard Wiese, Katz’s cousin, testified that Katz reported to him in the fall of 1983 that sh e ha d a n a rgume nt w ithhe r h

us ba nd duri ngwh ic h h e ha d c ho ke d h e r t o unc on sc iou sn e ss. Th is
wa s n ot t he fi rs t ti me B ie re nb a

um h a d c ho ke d h e r, but it wa s th e fi rs t ti me that sh e los t
c on sc iou sn e ss. Wie se a dv ise d h e r t o le ave imm e diate ly . K a tz mo ve d o ut a nd liv e d f or a tim e with her g randf

ather
. Al ay ne Katz, K a tz’ s si ste r, te sti fi e d th a t K a tz ha d c a lle d h e r i n th e fa ll o f 1 98 3, e xtre me ly up se t, a nd tol d h e r t hat he r h us ba nd ha d tr ie d to str ang le he r, that sh e los t c on sc iou sn e ss, Bie renba um revived he r and a

pologized prof

usely . Alay

ne Katz t estified that her

sister told her9

about a letter

she had r ece ived from B iere nbaum’s psychiatrist war ning he r about B iere nbaum’s potential for da

ng erousne ss and advisingher to move out. She a lso testified that they had many times discussed Katz separating f rom her husba

nd. Dr. L eig h McCullough, Katz’s employ er in the f all of 1983, noticed br

uises on Katz’s neck one day . McCullough testified that Katz told her that her husba nd had g otten ang ry

at her and choke d her be cause she had be en smoking a cig are tte. Katz confided in McCulloug h that she
wa s h avin g dif

fi c ult y in h e r m arr ia g e , a

nd that sh e and

B ie re nb a um f ou g ht a lot
. Denise K asenba

um, a frie nd, testified that Katz had told her the re w ere problems in the marria g e, incidents of violenc e, that B iere nbaum was ve ry controlling , and that she w as not happy . Katz rec ounted an incide nt when B iere nbaum discover ed her smoking a

cig are tte, g ot very ang ry , came at her

and choke d her. K atz also told Kasenbaum that she ha d g otten a letter fr om B ie re nb a

um’ s p syc hiatr ist . K a se nb a um t e sti fi e d th a t K a tz to ld h e r s he wa s h avin g an a ff a ir with a collea g ue at a

hospital where she wa s interning . Kase nbaum saw K atz on the day befor e sh e dis a pp e are d. Ka

tz to ld h e r t

hat sh e wa s lo ok ingfo r a

n a pa rtme nt a nd that sh e wa s g oin g to tell her husband that weeke nd that she wa s leaving
. Fr ance sca B eale , a for

mer e mploy er, te stified that in a telephone conver sation in 1983, Katz sa id t

hat he r h us ba nd ha d a te rr ibl e te mpe r, that sh e wa s a fr a id o f h im. Katz a sk e d B e a le if she could move in with her
. Maryann De Cesare , a fr iend, testified that Katz t old her that she w as af raid of Bie renba um’s temper a

nd that he had thr eate ned her . Katz told DeCesare that she had g one out on the terr ace of their a

partment to smoke a c iga rette, where he conf

ronted he r and c hoked her
.10

Katz told DeCesare that she wa s unconscious, and that Bier enbaum ha d to call 9-1-1 f or assistance . Often the rea fter K atz would ask her f or advic e: would DeCe sare leave her husba nd if he thre atene d to strang le her ; had DeCe sare ’s husband e ver thre atene d to hurt her; should she le ave B ie re nb a

um. De Ce sare te sti fi e d th a t K a tz to ld h e r t hat B ie re nb a

um h a d thre a te ne d to kil l her if she left him. I n another conver sation Katz told DeCesare that she and B iere nbaum had dis c us se d th e Cla

us vo n B ulo w c a se , a

nd that B ie re nb a

um h a d s a id t

he pr ob le m w iththe c a se was that von B ulow left evide nce a nd that he would leave no evide nce. Afewday s befor e she disappea red, K atz told DeCesare that she had me t someone in whom she wa s interested, a nd she wonder ed if De Cesare thought it would be a ll right if she broug ht him up to t he apa rtment when B i e r e nb a u mw a s n ’ tth e r e . S h e a l s o t o l d D e C e s ar e th a ts h e th o u g h ts h e w a s b e i n g f o l l o w e d
. In their last telephone conver sation, Katz told DeCesare that she planne d to ask Bie renba um for a divorce , and that she ha d secr etly borrowe d $10,000.00 and put it in a safe deposit box to pay for
a y e ar o f gra du a te sc ho ol. Dr . K e nn e th F e ine r d e ve lop e d a ro manti c re latio ns hip wi th K a tz in the months pr ior

to he r d isa pp e ara nc e . H e te sti fi e d th a t K a tz di sc us se d w ithhim he r w ish to l e ave he r h

us ba nd , th e ir constant fig hts and arguments, and one a rgument duringwhich B iere nbaum put his hands to her
ne c k. Katz to ld h im that sh e wa s g oin g to m ov e in w ithhe r f ri e nd El le n Sc hw art z in Connecticut. Katz had an a ffa ir with Anthony Seg alas, a

n investment banker , during the summer of 1984 and the springof 1985. Seg alas testified that Katz told hi m she was in a ve ry unhappy marria g e, that she w as af

raid of he r husband a

nd that he had tr ied to strang le her once. Mor e11

rec ently she talked of

moving in with a g irlfriend in Connec ticut. Sega las and Katz us ed coc aine toge ther. Dr. Yve tte Fe is, Katz’s former pr ofessor a nd friend, te stified that Katz told her she wa s looking f or other se x ual par

tners. In 1984 Katz told her about a time in 1983 whe n Bie renba um noticed her

smoking a

cig are tte on the terr ace of their a partment, be came violent and beg an chokingher. L ate in 1984 or e arly 1985 Katz told her that she had r ece ived a letter from Bie renba um’s psy chiatrist war

ning he r that B iere nbaum posed a dang er to he r, and sug g esting that K a tz se pa

rate fr om h im. Katz to ld F e is t hat sh e int e nd e d to us e the le tte r a s le ve ra g e in divorce proce eding s by

threatening to use it to ruin his caree r. Dr. Sy bil Bar an, Katz’s therapist, testified that Katz was af raid of B iere nbaum’s ang er. Katz told her about an inc ident, prec ipitated by smoking, whe n Bie renba um became enr ag ed and
a tte mpt e d to str ang le he r. I n th e fo ur to s ix mon ths be fo re sh e dis a pp e are d s he tol d h e r t

he ra pis t that she wa s looking for

an apa rtment so that she could sepa rate from B iere nbaum. Dr. Ellen Schwa

rtz, a close fr iend from g raduate school, testified that Katz t old her she
was a fra id of her husba

nd, and that she w as planningto leave him soon. Katz t old her that the night b e fo re sh e too k h e r G ra du a te Re c or d E xam, B ie re nb a um c ho ke d h e r t o unc on sc iou sn e ss beca use she smoked a

cig are tte. 2. The vid eotapes Dr. Char les Hirsch, Chief Medica l Ex aminer f

or Ne w York City , testified that prior to the
on se t of ri g or mor tis , a de a d b od y is “ pli a ble .” Th e bo dy

of a wo man f ive fe e t thre e inc he s ta ll,
w e i g h i n g a

b o u to n e hun dr e d

t e np o un d s c o u l d

b e f o l d e d an d t i e d i n t o a “ p a c k a g e ” a

b o u tth i rty-12

six in c he s lo ng . H ir sc h a lso state d th a t a bo dy c ou ld b e “ dis art ic ulate d” a t th e joi nts , a sim ple pr oc e ss t hat so me on e tr a ine d in

anatomy c ou ld a c c omp lis h in

te n mi nute s. Th e re wa s e vid e nc e that B ie re nb a um r e gula

rl y c arr ie d h e avy

du ff e l ba g s. Th e jur

y a lso lear ned that a Ce ssna 172 Sky hawk, the a irplane that Bier enbaum r ented, is a stable , easy -tohandle f our passe ng er a ircra ft. An inspector for the F eder al Aviation Administration testified that in his op ini on

a pil ot c ou ld s ing le ha

nd e dly dis po se of

so me thi ngfr om t

he pla ne wi tho ut a g reat deal of diff

iculty
. Serg eant Matthew Rowley of the Ne w York police depar tment’s Aviation Unit executed three flig hts in a Cessna 172 from Caldwe ll Airport on October 11, 2000, during the trial. Thre e times Rowley

loaded a bagcontainingone hundre d ten pounds of sand a nd rice into the plane, flew out ove r the oc ean, a nd ejec ted the bag , eac h time perfor ming a differ ent maneuve r to g et the ba g out of

the pla ne . T he pe rf

or manc e wa s v ide ota

pe d, and the jur y wa s sh ow n th e ta

pe s. 3. Bierenbaum’ s inconsi stent stat em ents Over the y ear s betwee n Katz’s disappea ranc e and his trial f

or her murder, B iere nbaum offe red va

rious acc ounts of his activities and var ious theories conc erningher where abouts. Consist ently

absent fr om any

of his acc ounts of his activities on Sunday , J uly 7, 1985 was the fac t that he re nted an a irplane in Ne w J erse y that afte rnoon and w ent flying. B iere nbaum g ave detailed state ments of his activities to both investigatingoffice rs in the day s following K atz’s disappea ranc e. He lied to both officer s, telling both of them that he had re mained in the
a pa rtme nt u nti l a pp ro ximate ly

5:3 0 p .m. wh e n h e le ft

fo r t he pa rt y in N e w Je rs e y . A t 4: 30 p. m. he wa s alrea dy

in New Jersey , flying his re nted airpla ne.13

About three wee ks after

Katz disappear ed, B iere nbaum beg an an a ffa ir with Kare n Caruana , a nurse educa

tor at Maimonides Medica l Center whe re B iere nbaum was a surg ical resident. The aff

air be g an while B iere nbaum was va cationingin South Hampton on L ong I sland duringthe month of August, and lasted about six weeks. Duringthat period Car uana a nd B ie re nb a um d isc us se d K a tz’ s d isa pp e ara nc e . Ca ru ana te sti fi e d th a t B ie re nb a

um t old he r t hat hi s apar tment and ca

r had be en sea

rche d and that he w as cle an as f ar a s any police investig ation was
conce rned. She state d that he told her this bef ore the end of Septe mber. At that time the police had not sea

rche d his apartment or

car . Bie renba um told C arua

na that he ha d hired a

private inve stigator who had f ound evidenc e that K a tz w a s in

Ca lif or nia . T o th e ow ne r o f B ie re nb a um’ s v a c a tio n r e nta l pr op e rt y in S outh Hampton, he spe culated that Katz had a drugproblem and that she had disappe are d with drug deale rs. He told anothe r re nter that he had g one looking for Katz i n Central Park, f ound her towel and suntan lotion, but she was g one. B ie re nb a um t old Katz’ s f ri e nd El le n Sc hw art z tha

t he ha d s po ke n w ithKatz’ s th e ra pis t Dr . B ara n, wh o h a d to ld h im that K a tz w a s v e ry de pr e sse d a

nd sh e wa s c on c e rn e d th a t K a tz might hurt he rself. D r. B ara n denied that she ’d had suc h a conve rsation with Bie renba um and denied that Katz was suicidal. Two or thre e months later B iere nbaum told another of Katz’s friends, Ma

ry ann De Cesare , that he thoug ht she was wa itressing by a sea side community
. DeCesa re sa id that Bier enbaum of ten mentioned water, that Katz was “outside cooling off.” Dr. Rober ta Kar nofsky , an ane sthesiologist, had a y ear -long relationship wit h Bie renba um be g inn ingin f

a ll 1 98 5, wh ile sh e wa s a me dic a l st

ud e nt u nd e r h is s up e rv isi on . H e tol d14

Ka rn of sk y that he ha d g ott e n into a

n a rgume nt w ithhis wi fe on e da y , th a t sh e we nt t o c oo l of f i n Central Park, that she had be en see n one time ar ound the ar ea of Central Park, but ha d never been
seen a g ain. To Ka

rnofsky Bie renba um speculate d that Katz was in a “ fugue state” or that she had run of

f with someone to the Car ibbean. B iere nbaum told Karnof sky that the police ha d asked him if he ha d remove d the apa rtment rugor had it cle aned, a nd that he had a

nswere d that he had not. Katz’s friend Yvette F eis was in the a partment seve ral da

y s after Katz was re ported missing, noticed that the livingroom rugwas g one and a sked about it. Bie renba um told Feis that the cats had fouled the r

ug and that he w as havingit cleane d. Dr . St e ph anie Yo un gblo od , a c hir op ra c tor

wh o li ve d w ithB ie re nb a um f ro m 19 90 to 1993, testified that B iere nbaum told her that Katz had a drugproblem, wa s having extramarital aff airs, and that he fe lt her death was drug -re lated: “[h]e felt she went to Centra l Park to hang out with her drug g ie frie nds.”

4. Bie r e nbaum ’s de fens e The de fense called one witness, J oel Davis. Da vis had bee n in a bag el shop in Manhattan on Second Ave nue in the ‘80' s on the afte rnoon of July 7, 1985, and he notice d an attra ctive
woman we aringa distinctive t-shirt with a non-Eng lish word on it. W hen two we eks later he saw posters of Katz, he identified her a s the woman he had see n, and he c alled the police . He descr ibed her

to the jury

as dee ply tanned, a bout five foot one, w ith a well-de veloped body . On
cross-e x amination Davis admitted that he ha d told an investigator for the defe nse that the woma n he’d se en wa s tall and statuesque, a nd explained that he had c onfused his desc ription of the mis sin g wo man b y

lik e nin g he r t o tw o d if

fe re nt w ome n, on e ta ll w ithhe r f a c e and on e sh or t w ith15

her body
. The prose cution called K atz’s sister Alay ne as a rebuttal witness. She provide d a picture of Katz from the summer of 1985, and de scribed he r as less than f ive foot three , weig hing approximately

110 pounds, with an A-c up bra size. D. P ost-Trial P roce edings On a pp e a l to the Ap pe llate Di vis ion , F ir st D e pa rtme nt, B ie re nb a

um a rgue d th a t hi s guil t was not prove n beyond a re asonable doubt. He also a rgued, amongother issues, that the tria l
c ourt e rr on e ou sly

1) a llo we d th e jur

y to l e arn of the e xiste nc e and

natur e of the le tte r wri tte n to Katz by Bie renba um’s psy chiatrist war

ning he r of the da

ng er B iere nbaum posed to her ; (2) allowed va

rious people to testify

about Katz’s ver

bal statements to them desc ribing Bie renba um’s threatening rema

rks and be havior; and ( 3) per mitted the jury

to watch the
v i d eo t ap edd em o n s tra t i o ns h o wi n g h o w ap i l o tfl yi n g s o l o m ay l o ada du ff

el b ag c o n t ai n i n g a 110-pound body

into a Cessna 172 airpla

ne, fly over the ocea

n and eje ct the bag
. The Appe llate Division rejec ted these c laims and aff irmed the c onviction on October 22, 2002. See B ierenbaum , 748 N.Y.S.2d at 589. L eave to appea l to the New Yor k Court of Appea ls was denied on Ma rch 10, 2003. See P eople v . Bierenbaum , 790 N.E.2d 281 (N.Y
. 2003). B iere nbaum’s petition for a writ of ce rtiorar i to the United States Supreme Court was denied on Oc tober 6, 2003. Se e Bi e re nb au m v . Ne w York, 540 U.S. 821 (2003). Af te r B ie re nb a

um’ s d ir e c t a

pp e a l w a s c on c lud e d, he fi le d a mot ion wi th t he tr ia l c ourt

to set aside the judg ment on the g rounds that trial and a ppellate c ounsel had re ndere d ineffe ctive assistance of counse l. The motion was denied on Septe mber 6, 2005, a nd leave to appea l was16

denied on January

12, 2006. Bie renba

um then filed a pe tition for writ of er ror c oram no bis in the Appellate D ivision contending that appellate c ounsel had provide d ineffe ctive assistanc e. The petition was denied on Ma rch 9, 2006. L eave to appea l that decision to the NewYork Court of Appea ls was denied on Ma y 30, 2006. See P eople v . Bierenbaum , 850 N.E.2d 674 (N.Y . 2006). On Marc h 1 7, 20 06 , B ie re nb a um f ile d a pe tit ion fo r a wr it o f h a

be a s c or pu s p ur su ant t o 2 8 U
. S
. C
. § 2 2 5 4 i nth e U n i t e d S t a t e s D i s tr i c tC o urtf

o r th e S o u th e r

nD i s tr i c to f

N e w Y o r k
. In his petition he alleg ed that he w as denie d his Si x th Amendment rig ht to effe ctive assistanc e of counsel, a nd that admission of numerous hea rsay statements violated his Six th Amendment rig ht to confront witnesse s ag ainst him. He reque sted an e videntiary hear ing. O n Fe bruar

y 25, 2008, the district court de nied the petition without conducting an evide ntiary hear ing. See B ierenbaum v. Graham , No. 06 Civ. 2120, 2008 W L515035 (S.D.N.Y. F eb. 25, 2008). This Court g rante d a
cer tificate of appea lability

on September 23, 2008. II. Discussion A. Standard of

Review We reviewde novo a district c ourt’s dec ision to deny a petition for a

writ of habe as corpus. E.g. , Henry

v. Rick s , 5 78 F .3 d 1 34 , 1 37 (2 d Ci r. 20 09 ). We m ay no t c on sid e r a

state pr iso ne r’ s a

pp lic a tio n f

or a wr it o f h a

be a s c or pu s unle ss t

he a pp lic ant h a s e xha

us te d ava ila

ble state re me die s b y

“ fa ir ly pr e se nt[i ng ] his c la im i n e a c h a pp ro pr iate state c ourt

(i nc lud inga

state supreme c ourt with powers of discretionar

y revie w).” Ba ldw in v . R e ese , 541 U.S. 27, 29 (2004) (i nte rn a l qu otatio n ma

rk s o mitte d) ; ac c or

d G e or gis on v . D on e lli , 588 F.3d 145, 153 ( 2d Cir. 20 09 ); see 28 U.S.C. § 2254(b)(1)( A). “ ‘A pe titioner has fa irly prese nted his claim only

if he ha s17

inf or me d th e state c ou

rt of bo th t he fa c tua l and

the le g a l pr e mis e s o f t

he c la im h e a sse rt s in fede ral c ourt.’” Jones v . Keane , 329 F.3d 290, 294- 95 (2d Cir. 2003) (inter nal quotation marks
o m i t t ed ) ( qu o t i n g Do rse

yv . Ke lly , 112 F.3d 50, 52 ( 2d Cir. 1997)). I f a state court de cision “re sts on a state law ground that is independe nt of the fe dera l question and ade quate to support the judg ment,” Coleman v. Thompson , 501 U.S. 722, 729 (1991), we will not review the issue. See R ichardson v. Gre ene , 497 F.3d 212, 217 ( 2d Cir. 2007). “The rule a

pplies with equal for ce whether the state-la

w g round is substantive or proce dural.” Lee v. Ke mna , 5 34 U. S. 3 62 , 3 75 (2 00 2) . A“ state law gro un d is on ly a de qu a te to support the judg ment and for eclose revie w of a fede ral c laim if it is ‘firmly established and regularly followed’ in the state,” a nd application of the rule would not be “ exorbitant.” Garve y v. Dunc an , 4 8 5 F. 3 d

7 0 9 , 7 1 3 -1 4 (2 d

C i r. 2 0 0 7 ) ( qu o t i n g Lee , 534 U.S. at 376). When a state c ourt has adjudicated the mer its of a petitioner’s c laim, a fe dera l court may g rant a n application for

a wr it of habea s corpus only if “the a djudication of the c laim--(1)
re su lte d in

a de c isi on that w a s c on tr ary

to, or inv olv e d a

n unr e a so na

ble a pp lic a tio n o f, c le arl y established F eder al law, a s determined by the Supreme Court of the United States; or (2) r esulted in a dec ision that was based on a n unrea sonable de termination of the f acts in lig ht of the evide nce pr e se nte d in

the State c ourt

pr oc e e din g .” 28 U. S.C. § 2 25 4( d) ; see also, e.g. , Brown v. Alexande r , 5 43 F .3 d 9 4, 10 0 ( 2d Cir . 2 00 8) . U nd e r § 22 54 (d )( 1) , a state -c ourt

de c isi on is
c on tr ary to c le arl y e sta bli sh e d Su

pr e me Court

pr e c e de nt i f i ts “ c on c lus ion on a qu e sti on of law i s ‘opposite’ to that of the Supre me Court or if the state court de cides a case differ ently

than the Supreme Court’s de cision ‘on a se t of materia lly indisti ng uishable fa cts.’” Id. (q u o t i n g W illiams18

v. Taylor , 5 29 U. S. 3 62 , 4 13 (2 00 0) ). A s tate c ourt de c isi on inv olv e s a

n unr e a so na

ble application of c lear ly

established Supreme Court prec edent if it cor rec tly identifies the g overning leg al principle but unre asonably applies or unr easona

bly ref uses to extend that principle to the fac ts of a par

ticular c ase. See W

illiams , 5 29 U. S. at 41 3; Ramdass v. Ange lone , 530 U.S. 156, 16 6 ( 20 00 ); accord Kennaugh v . Miller , 289 F.3d 36, 45 ( 2d Cir. 2002). A state c ourt’s dete rmination of a f actua l issue is presumed to be c orre ct, and may only be
re butte d b y

c le ar a nd c onvin c inge vid e nc e . 2 8 U .S. C. § 22 54 (e )( 1) ; see D rake v . Portuondo , 553 F.3d 230, 239 ( 2d Cir. 2009). B. Exhau stion The district cour

t determined that Bier enbaum f ailed to exhaust his st ate c ourt reme dies wi th r e g ard

to h is C on fr on tatio n Cl a

us e c la im, fi nd ingthat he did no t argue the c la im i n h is
a pp lic a tio n f

or le ave to a

pp e a l to the Ne w Y or

k Co ur t of Ap pe a ls. Th e re sp on de nts argue d th is position below, but on further r eview ha ve withdra

wn their a rgument, ag ree ing w ith Biere nbaum that he pre sented his constitutional claim in his letter brief submitted to the New York Court of Appea ls on Dece mber 10, 2002. On appe al to the Appellate Division, First Depa rtment, Bie renba

um presente d, among other que stions, the following: “Whether Dr. B iere nbaum was de nied a f air trial by

the improper
a dmi ssi on

of wi de sp re a d te sti mony

re c ounti ngstate me nts purp or te dly ma de by Ms. B ie re nb a

um, which did not satisfy

any hear say exception or the conf

rontation clause of the state a nd fede ral constitutions . . .? ” Similarly , in his letter seekingleave to appea l to the New Yor k Court of Appea ls, he argued that lea ve should be g rante d “to re view the a dmissibi lity of bac kg roundAt the close of its opini on, the Appellate Division dispos ed of the arguments it did not 1 addre ss as follows: “We have examined defe ndant’s re maining c ontentions and find them unavailing .” Bierenbaum , 748 N.Y.S.2d at 589. 19 e vid e nc e thr ou g h h e ars ay de c laratio ns , w he the r i n ‘ do me sti c vio le nc e ’ c a se s o r o the rw ise , a nd to consider whether

admission of such evidenc e denie s a def endant his state a

nd fede ral rig hts of confr ontation.” Th e Ap pe llate Di vis ion

did no t e xplic itl y

a dd re ss B ie re nb a

um’ s c on fr on tatio n c la

us e claim, and the Court of A ppeals de nied leave to appea l without ex planation. “‘ [T] he question of 1 whether a fe dera l constituti onal question was suff iciently asser ted in state cour

ts to form the ba sis of a fe de ra l ha

be a s p e tit ion

is .
. . a qu e sti on of fe de ra l la w whic h th e fe de ra l c ourt s mu st resolve f or themselves.’ ” Acosta v. Artuz , 5 7 5 F. 3 d 1 7 7 , 1 8 5 (2 d

C i r. 2 0 0 9 ) ( qu o t i n g DiSimone v. Phillips , 4 61 F .3 d 1 81 , 1 89 (2 d Ci r. 20 06 )) . Astate pr iso ne r m ay fa ir ly pr e se nt t o th e state courts the c onstitut ional nature of his claim by “cla im[ ing] the depr ivation of a pa rticular r ight specific ally

protec ted by

the Constitut ion.” D a

y e v . A t t ’ yG e n . o f th e S ta t e o f N
. Y. , 696 F.2d 186, 19 3 ( 2d Cir . 1 98 2) (e n b anc ). He re , B ie re nb a um e xpre ssl y

inv ok e d th e Con fr on tatio n Cl a us e to both appellate c ourts. “[T] o qualify as an a djudication ‘on the mer its,’ a state c ourt dec ision need not mention a particula

r ar g ument or explain the rea sons for re jectingit.” Dallio v. Spitzer , 343 F .3 d 5 53 , 5 60 (2 d Ci r. 20 03 ); see also Brown v. Artuz , 283 F.3d 492, 498 ( 2d Cir. 2004) (finding that Six th Amendment claim wa s adjudicate d on the merits when state cour t dismi ssed it by stating “ defe ndant’s re maining c ontentions are w ithout merit.”). We there fore conclude that the state c ourt s w e re fa ir ly

a le rt e d to the c on sti tut ion a l c la im, B ie re nb a um h a s e xha

us te d h is available state re medies with respe ct to the claim, and w e may rea ch the mer its of the claim. See20

Galdamez v . Keane , 394 F.3d 68, 78 ( 2d Cir. 2005) (re achingthe merits of pe titioner’s confr ontation clause c laim where briefs a nd leave application, fa irly construed, r aised the issue)
. C. Co nfro nt at ion Cl aus e The Confrontation Cl ause of the Six th Amendment to the United States Constitut ion state s: “ in a ll c ri min a l pr os e c uti on s, the a c c us e d s ha ll e njo y the ri g ht .
. . to b e c on fr on te d w ith the witnesses a g ainst him.” U.S. Const . amend. VI . Throug hout Bier enbaum’ s trial and the direc t appea l of his conviction, the admission of statements by a dec lara nt not present at tria l was g o v e r n e d b y Oh io v . R ob e rts , 448 U.S. 56 (1980), abrogated by Crawford v. W ashington , 541 U.S. 36 (2004)). Under Ro be rts , the statements of a n unavailable hear say

decla rant we re “admissible only

if [they bore] adequate ‘indicia of reliability ,’” which could be satisfied by demonstratingthat the evidenc e fe ll “within a firmly rooted he arsa

y exception,” or that the evidenc e had “ particula

rized g uara

ntees of tr ustworthiness.” 448 U.S. at 66. The United States Supre me Court decisions in Crawf ord and Davis v. W

ashington , 547 U.S. 813 (2006), conf

ined the scope of the Confrontation Cl ause to testimonial statements. See Da v is , 5 47 U. S. at 82 4 ( ho ldi ngthat li mit ingthe Con fr on tatio n Cl a us e to t e sti mon ia l he ars ay is “cle arly ref lected in the te x t of the constitutional provision”); Un ite d S tates v . F e liz , 467 F.3d 227, 232 (2d Cir. 2006) (“ [A] fter Crawf ord and Da v is , . . . . the inquiry under the Confrontation Cla us e is whe the r t

he state me nt at is su e is t e sti mon ia l.” ); accord U nited States v. W

illiams , 506 F.3d 151, 156 ( 2d Cir. 2007). Nontestimonial statements there fore do not impli cate the Confrontation Clause. Se e Fe liz , 467 F.3d at 232. Bie renba um arg ues that the c halleng ed stateme nts were inadmissible under either theRespondents asser t in the alternative, and the district cour t ag ree d, that with one 2 exception the statements wer e not admitted for the ir truth. We need not addr ess this argument beca use of our dispositi on of this issue under Ro be rts . 21 Ro be rts or the Cra wfo rd

and Da v is standard: that the statements wer e admitted for their truth, that no hear say

exception applied, that the stateme nts showed no par ticularized g uara

ntees of trustworthiness, and that the state ments were testimonial. In W horton v. Bock

ting , 5 49 U. S. 4 06 , 4 21 (2 00 7) , th e Sup re me Court he ld t hat Cra wfo rd
announce d a new

rule that would not apply retroa ctively

on collater al re view. More over, a fede ral c ourt must apply

the clea rly established “Supre me Court jurisprudenc e as of either the date of the per tinent state court ‘ adjudicat[ion] on the merits,’ or the date whe n the state c ourt conviction bec ame f

inal.” Mungo v. D uncan , 393 F.3d 327, 333- 34 (2d Cir. 2004). As of 2002 when his cla im was adjudicated on the mer its, and 2003 when his conviction bec ame f inal, Oh io
v . R ob e rts g overne d his claim. Thus, Bier enbaum’ s challeng e to the admission of Katz’s statements must be eva luated under Ro be rts . Assuming that Ka

tz’s st atements we re a dmitted for the truth of the matters asser ted, they 2 meet the Ro be rts standard f or admissibilit y . The Appe llate Division analy zed the reliability

of the cha lleng ed stateme nts under the r ule for de termining reliable hear say set forth by

the New York Court of Appe als in Nucci v. Prope r , 7 44 N. E. 2d 12 8 (N. Y. 20 01 ): Reliability

is the sum of the circ umstances surr ounding the making of the statement that re nder the decla rant wor thy of belief . Relevant fa ctors include sp on tane ity , r e pe tit ion , th e me nta l st a te of the de c lara

nt, a bs e nc e of mot ive to fabr icate, unlikelihood of f aulty rec ollection and the de g ree to which the stateme nt was a g ainst the dec lara

nt’s interest. Courts have also consider ed the status or relationship t o the dec lara nt of the per son to whom the statement was ma de, wh e the r t he re wa s a

c oe rc ive a tmo sp he re , w he the r i t w a s ma de in r e sp on se to22

questioning a

nd whether

the statements re flec t an attempt to shift blame or c urry favor
. Id. , 7 44 N. E. 2d

a t 13 1 ( c itatio ns , inte rn a l qu otatio n ma rk s a nd e lli ps e s o mitte d) . T he Ap pe llate D i v i s i o nr

u l e d th a tth e s t a t e m e n t s b o r e nu m e r o u s h a l l m ar k s o f r e l i a b i l i ty: She was spea

king sponta

neously ; she repe ated the statements separ ately to various people in her

life; her statements about the troubled side of their mar riag e we re a natur a l c on se qu e nc e of

c or ro bo rate d f

a c ts a bo ut t he ir marr ia g e ; sh e wa s, by

a ll indications, in good me ntal health; there appea rs no re ason for

her to have fabr icated the matters she discusse d at the time of he r uttera nces; a nd her statements larg ely

conce rned pr ivate matter s that some would be emba rra ssed or oth e rw ise re luc tant t o d isc los e . F ur the rm or e , th e state me nts we re ma de mos tly to tho se c los e to h e r, in c on te xts c omp le te ly de vo id o f c oe rc ion , n ot i n r e sp on se to anyon e ’s qu e sti on ing , n or un de r c ir c ums tanc e s at a ll s ug g e sti ve of any a tte mpt to curr y anyone’s f

avor. Bierenbaum , 7 48 N. Y. S. 2 d at 58 3- 84 . It w a s n ot u nr e a so na ble fo r t he Ap pe llate Di vis ion

to conclude that the re liability of Katz’s st atements wa s “amply supported.” Id. at 583. Indeed, Bie renba um does not argue to this Court (except pare nthetically ) that the c halleng ed hea

rsay de c laratio ns we re in f

a c t unre lia

ble . T he pa ssa g e qu ote d a bo ve de mon str a te s th a t th e Ap pe llate Di vis ion fo un d p art ic ula

ri zed g ua ra nte e s o f t ru stw or thi ne ss i n th e c ha lle ng e d s tate me nts . T his conclusion wa s neither c ontrary to nor an unre asonable application of the Supreme Court’s Confrontation Clause pre cede nt in 2002 and 2003. D. Ineff

ect ive Assistance of Counsel To show ineff

ective a ssistance of c ounsel under Strickland v. W ashington , 466 U.S. 668 (1984), B iere nbaum “‘ must (1) demonstrate that his counsel’s per formanc e fe ll below an objective standa

rd of r easona

bleness . . . and ( 2) af

firmatively

prove pr ejudice a

rising f rom counsel’s a lleg edly

defic ient repr esentation.’” Brown v. Gree ne , 577 F.3d 107, 110 ( 2d Cir.23

2 0 0 9 ) ( qu o t i n g Car

rio n v . S mi th , 549 F.3d 583, 588 ( 2d Cir. 2008)). To satisfy the first par

t of the test--pe rfor

mance --he must “show[] that counsel made err ors so serious that counse l was not functioningas the ‘c ounsel’ guara nteed the de fenda

nt by the Six th Amendment.” Strickland , 466 U.S. at 687. The Strickland standard is “ rig orous,” Bell v. Miller , 500 F.3d 149, 155 ( 2d Cir. 20 07 ): J udicial scrutiny

of counse l’s perf

ormanc e must be hig hly

defe rential[;] . . . ever

y e ff or t [mu st] b e ma de to e lim inate the dis tor tin g e ff e c ts o f h ind sig ht, to rec onstruct the cir cumstance s of counse l’s challeng ed conduc t, and to evaluate the conduct f rom counsel’ s perspe ctive at the time. . . . [A] court must indul g e a strong presumption that counsel’s c onduct fa lls withi n the wide r ang e of rea sonable prof

essional assistance ; that is, the defenda nt must overcome the presumption that, under the circ umstances, the c halleng ed ac tion might be considere d sound trial strateg y . Strickland , 466 U.S. at 689 (citations and inter nal quotation marks omitted). To satisfy the sec ond part of the Strickland test--pre judice-- Bie renba

um “must show that there is a rea sonable proba bility that, but for counse l’s unprofe ssional error s, the result of the proce edingwould have be en diffe rent.” Id. , 4 66 U. S. at 69 4. “ A r e a so na ble pr ob a bil ity is a probability

sufficie nt to undermine conf idence in the outcome.” Id. B ie re nb a um l ist s n ine e rr or s th a t he c on te nd s a re ob je c tiv e ly unre a so na

ble : ( 1) fa ili ngto move to dismiss the indictment due to pre -trial dela y ; (2) conc edingthat Katz died on J uly 7, 1985; (3) “ope ning the door” to testimony and ar g ument that Dr. B iere nbaum and his lawyer ref used to consent to a f

orensic se arc h of his apar tment; (4) fa iling to ca ll two witnesses who alleg edly would have suppor

ted his claim that Katz left the apa rtment on the morningof Jul y 7; ( 5 ) f a il in g to c r o s s - e xami n e e f f e c ti v e ly a w it n e s s w h o mi n im iz e d

h is u s e o f

c o c a in e w it

hK a tz ; (6) f ailing to objec t to the admission of the videotaped de monstration of the prose cution’s theory24

of how B iere nbaum disposed of his wife ’s body ; (7) fa iling to move for a trial orde r of dismissal on the g rounds of insuffic ient evidenc e of the element of intent to kill ; (8) fa iling to make a timely objection to improper r emar ks in summation; (9) f

ailing to r equest a

jury char g e on jurisdiction. 1. P re- Ind ictm ent De lay Def ense c ounsel did not move to dismi ss the indictment for undue de lay . “Oppr essive” prosec utorial delay

may violate the Due Process Clause of the United States Constitut ion. See United States v. Lovasco , 431 U.S. 783, 789 (1977). To pre vail on such a c laim under fe dera l law, B iere nbaum must prove that the de lay resulted in ac tual prejudice and that the pr osecution’s
rea sons for the de lay

wer e improper
. Un ite d S tates v . La nge lla , 776 F.2d 1078, 1083 ( 2d Cir. 1 9 8 5 ) ( ci t i n g Lovasco , 4 31 U. S. at 79 0) ; ac c or d U nite d S tates v . Co rn ie lle , 171 F.3d 748 ( 2d Cir. 1999). Under

New Y ork law, the prosec ution must establish g ood cause for e x tended de lay , but “‘a deter mination made in g ood faith to delay prosec ution for suffic ient rea sons will not deprive defe ndant of due proce ss even thoug h there may be some pre

judice to def

endant.’ ” People v

. Dec ker , 9 12 N. E. 2d

10 41 , 1 04 2 (N. Y. 20 09 ); see N.Y. Const. art. I , § 6. “[I ]n a proper c ase, a leng thy and unjustifiable dela

y in commencingthe prosec ution may require dismiss al eve n though no a ctual pre

judice to the def

endant is shown.” People v . Singer , 376 N.E.2d 179, 186 (N.Y. 1978) . I n deter

mining whe ther prose cution has bee n unduly delayed, a N ew Yor

k court wi ll b a lanc e fi ve fa c tor s: “(1) the extent of the delay ; (2) the r eason f or the de lay ; (3) the nature of the underlying c harg e; (4) whether or not there has bee n an extended per iod of pretr ial25

incar cer ation; and (5) whether or not there is any

indication that the def

ense ha s been impair ed by

rea son of the dela

y .” Dec ker , 9 1 2 N. E
. 2 d

at1 0 4 3 (q u o t i n g People v . Taranovich , 335 N.E.2d 303, 306 (N.Y . 1975)). Bie renba um arg ued undue pr e-indictment de lay to the state cour

t in his m otion to set aside the judg ment. The state c ourt weig hed the f ive Taranovich fa c tor s a

nd c on c lud e d th a t if defe nse counse l had moved to dismiss t he indictment, the motion would unquestionably have been de nied. Althoug h the delay was substantial, B iere nbaum suffe red no pr ejudice, a nd he wa s not incarc erated prior to trial. Give n the seriousne ss of the cha rg e, the c ircumstantial nature of the evidenc e, and no e vidence of any improper motive on the pa rt of the pr osecution, the motion ha d n o c ha

nc e of su c c e ss. Th e state c ourt

c on c lud e d th e re fo re that de fe ns e c ouns e l w a s n ot i ne ff e c tiv e fo r f

a ili ngto
mov e to d ism iss fo r p re -i nd ic tme nt d e lay . H a d d e fe ns e c ouns e l mo ve d to dis mis s th e ind ic tme nt, the motion would not have bee n g rante d, and ther efor e ther e wa s no rea sonable proba bility that the outc ome -- pr oc e e din g to t ri a l- - w ou ld h ave be e n d if fe re nt. Th e state c ou

rt ’s c on c lus ion

wa s a
rea sonable a

pplication of Strickland
. 2. De fens e Co unse l’ s C onc e ssi on Trial counse l conce ded in his openingstatement that Katz di ed on Jul y 7, 1985: “[L ]et’s ta lk a bo ut s ome thi ng s th a t are no t at is su e he re . F ir st o f a ll, it i s n ot d isp ute d b y us that G a il Katz Bier enbaum is dea d. That is not disputed. Not only that’s not disputed by

us, but that she likely died some time on J uly

7, 1985.” Tria l Tr. vol. I , 1881, Oct. 2, 2000. In discussing the evidenc e he a lso stated No w w e wi ll t e ll you

that th e e vid e nc e wi ll a lso sh owthat sh e is d e a d. She sh ou ld26

have ma de her

appointments, she should have be en whe re she said she would be and she c ould have c ome home but she didn’t and that’s why we c an tell y ou that she is dead. Id. at 1884-85. B ie re nb a um a rgue s th a t e ve n if

it w e re wi thi n th e ra

ng e of re a so na ble str a te g ic c ho ic e s to
conce de that Katz was dead, it was not re asonable to conce de that she die d on the Sunday she d i s a p p e ar e d
. W e d i s a g r e e . W i thth e b e n e f i to f h i n d s i g h t , c o n c e d i n g th a tK a t z d i e d o nJ u l y 7 may seem e x traordina

ry , but at the time counsel would have had r eason to be lieve that the jury was likely

to hear from seve ral re liable source s that she had a ppointments for the next day , and that sh e wo uld

have ke pt t

ho se a pp ointme nts if

sh e c ou ld h ave . Co un se l’ s th e or y wa s th a t K a tz left the a partment on Sunday , and met with foul play afte r she lef

t. I t was consistent with that the or y to c on c e de he r d e a th o n July 7. I t w a s n ot o bje c tiv e ly unre a so na

ble to d o s o. Mo re ov e r, it
was a rea sonable trial strateg y

to establish a forthr ight r elationship with the jury , by conce ding what the de fense did not have evide nce to c ontest.

3. Openin g the Door In his opening statement counse l told the jury “You will also lea

rn that the police conducte d a for ensic e x amination of the doc tor’s apa rtment, the doctor’ s car , his friend’s c ar that he borr owed some time that we ekend, the airplane and found no e vidence of blood or any other biologica l determinations . . . bec ause . . . this ca se also turns on the lac k of evide nce.” Id. at 1889. In fac t, the police we re not pe rmitted to conduct a f orensic se arc h of the a

partment. The prose cution succe ssfully argued that counse l had “ope ned the door ” to allow testimony from De tective Da lsass that Bier enbaum’ s attorney had pre vented the police from27

conductinga wa

rra ntless forensic sear ch of the apar tment. Dalsass testified that B iere nbaum’s
a tto rn e y g ave pe rm iss ion

fo r t he po lic e to c on du c t a

lim ite d s e arc h f

or ite ms that mi g ht h e lp t o identify Katz. Prior to that date he ha d not been pe rmitted to enter the a partment. He stated that he neve rtheless attempted to look for any evidenc e that a c rime had be en committed in the
a pa rtme nt, that he dis c ov e re d n o s uc h e vid e nc e , b ut t hat he ha d n ot c on du c te d a de ta ile d f

or e ns ic
sear ch. The prose cution also produce d the testimony of Ka ren Car uana, a woman with whom Bie renba um had a br ief a ffa ir shortly afte r Katz di sappea

red. Car uana te stified that Bie renba um told her in August or September that his apartment had be en sea rche d and that the police had clea red him. In summation the prosecution ar g ued that [Biere nbaum] tells Karen Car uana, “ You know the c ops sear ched my apar tment. They found nothing , I ’ve be en cle are d,” and in the time f rame we’ re ta lking a

bout it’s clear that he’s tellingKar en Carua na that the c ops have c lear ed him befor e they ’ve e ven bee n inside his apartment. . . . Cops hadn’t se arc hed any thing yet. One of the main re asons is beca

use the de fenda

nt wouldn’t let them sear ch the ap art m en t . T h e d ef

en d an tan d

h i s at t o rn ey

s t o p p edth e c o p s fr o md o i n g a complete f

orensic se arc h on the apa

rtment. L adies a

nd g entlemen, e y eballingthe batht ub and wa lki ngaro un d th e a

pa rtme nt a re no su bs tit ute fo r a c omp le te fore nsic sear ch . . .” Trial Tr. vol. IV, 3212, Oct. 23, 2000. De fense counsel made no contempora neous objec tion, but afte r the summation and bef ore the jury

char g e he move d for a

mistrial on that and other g rounds. The trial judg e denie d the motion, but offere d to tell the jury that Bie renba

um had no leg al obligation to allow a sear ch of his apa rtment, that he ha d a rig ht to act on advice of counse l, and that the jury

should draw no ne g ative infe renc e fr om that; but that in fact the apa rtment was not28

f u l l y s e ar c h e d
. C o un s e l a c c e p t e d th e o f f e r an d th e tr i a l j u d g e i n s tr

u c t e d th e j ur y: L e t me a lso state that th e de fe nd ant h a d n o le g a l ob lig a tio n to a llo w the po lic e to sear ch his apa

rtment at any

point, but -- and ce rtain evide nce c ame out conc erning a sea rch of his apartment. Your

rec ollection controls. That involved a dvice of counsel. I

want to re mind y ou that ever y individual has a rig ht to an attorney and yo uc andr awn o n e g a t i v e i n f e r e n c e f r o mth e f a c tth a ts o m e o n e h i r e s ana t t o r n e y. Id. at 3259. B ie re nb a um a rgue s th a t th e Da lsa ss t e sti mony wa s in a dmi ssi ble a

bs e nt d e fe ns e counsel’s r emar

k, and the pr osecution could not there fore have use d it in sum mation. Ag ain, we disa g ree . Although de fense counsel mistakenly ref err ed to the sea

rch of Bie renba um’s apar tment as a for ensic sea

rch, omitting the term “f

orensic” from counse l’s openingstatement would not have preve nted the prose cution from elicitingDalsass’s te sti mony that a lim ite d s e arc h o f t

he a pa rtme nt w a s c on du c te d s e ve ra l w e e ks a ft e r K a tz disappea red. Astrong piece of the de fense was the f act that ther e wa s no phy sical evidenc e to link Bier enbaum to the c rime. B iere nbaum does not sug g est that counsel should not have stresse d the lack of evidenc e, or should not have mentioned that sea rche s of the a partment, c ars a

nd airplane turned up nothing . (“This c ase . . . turns on the lack of evidenc e.”) In order

to put the absenc e of phy sical evide nce in c ontext , the prosec ution would have be en per

mitted to inform the jury

that the police we re c onstrained to a limited
se arc h o f t

he a pa rtme nt s e ve ra l w e e ks a ft e r t he dis a pp e ara nc e . Re g ard le ss o f d e fe ns e
c ouns e l’ s e rr or

in r e fe rr ingto t

he se arc h a s a

“ fo re ns ic se arc h, ” the pr os e c uti on wo uld also have elicited the f

act that B iere nbaum lied to Caruana about the sea

rch. In summation the prosecution improper ly arg ued that B iere nbaum and his attorne y29

preve nted the police f

rom conduc ting a

complete se arc h. When the trial court’ s attention was dra wn to this error, it re fused to orde r a mistrial, but offe red a n instruction, admonishing the jury

that it could draw no ne g ative infe renc e fr om an individual’s acting
on a dv ic e of c ouns e l. D e fe ns e c ouns e l di d n ot o bje c t to the ins tr uc tio n o r r e qu e st a strong er one . Moreove r, at that point in the summation, the prosecutingattorney was cata loguingwhat he te rmed B iere nbaum’s lies-- to Dalsass, to O’Ma lley , to Caruana , and
se ve ra l ot he r w itn e sse s. He did

no t f oc us on B ie re nb a um’ s h avin g pr e ve nte d a

fo re ns ic
sear ch. Given that the testimony was indepe ndently

admissible, and the trial c ourt g ave a
curative instruction in connection with the improper closing argument, defe nse counse l’s mistaken ref

ere nce to a

fore nsic sear ch did not “open the door” to pre judicial comments. 4. F ailin g to call two w itnesses Def ense c ounsel did not call two individuals whom Biere nbaum contends witnessed Katz l eavingthe apa rtment and the building in acc ordanc e with his narr ative of events on July

7, 1985. J une Sherma

n lived direc tly

below the B iere nbaum apa rtment. Acc ordingto her a ffidavit, she w as ac utely awa re of Katz, who fre quently

scre amed at her husband and w alked a

round noisily

in high- heele d shoes. She states that on the morning Katz disappear ed, Katz was screa ming at someone. Sherman he ard the noise of the hig hh ee l eds h o es , th en s h e h ea rdth e d o o r s l am , an d b o thth e s h o u t i n g an d

th e s o un d

o f h i gh heels on the f

loor stopped. She hea

rd nothing more. Sherma n believed that Katz left the apar tment when the door

slammed. Duringthe trial def

ense c ounsel unsucce ssfully attempted to serve Sherman, who30

had moved to Ar izona. Biere nbaum fa ults the district court for c oncluding that counsel’s eff orts to secure her te stimony wer e dilige nt, and conc luding that f ailure to pre sent her testimony did not prejudice the defe nse. Reg ardle ss of whethe r counse l’s perf ormanc e wa s deficie nt in failing to sec ure She rm an’ s te sti mony , B ie re nb a um c ann ot s ho w p re

jud ic e . Sh e rm an’ s te sti mony wo uld not have unde rmined conf idence in the jury ’s guilty verdic t. Sherman would have te sti fi e d th a t sh e be lie ve d K a tz le ft the a pa rtme nt a ft e r t

he do or sla mme d. She wo uld have ha d to admit that she did not see Katz leave , nor could she be sure that the door was the exterior door, rather than a n interior door. The prosec ution would have ar g ued that even if the jury believed Sher

man was te stifying tr

uthfully about what she hear d, her te sti mony wa s c on sis te nt w iththe pr os e c uti on ’s the or y that B ie re nb a

um k ill e d h is w if

e in the cour se of a

n explos ive ar g ument. Pablo Alvare z was employ ed at the a partment building in 1985. One of his duties was to re lieve the door

man at lunchtime. Ac cordingto his affidavit, on the Sunday befor e Katz’s parents and the police inquired about he r, he r elieved the doorman, Edg ar Rivera, at approxim ately

11:30 a.m. At that time he saw K atz leave the f ront entra nce of the building we aringshorts and a t-shirt. He did not see her return. De fe ns e c ouns e l de c ide d n ot t o c a ll A lva re z. T he de c isi on

no t to do so wa s a de fe ns ibl e tr ia l strate g y . B ie re nb a um d oe s n ot d isp ute that A lva re z tol d th e a

uth or iti e s in J uly 1985 that he did not rec all seeingKatz on J uly 7, and that he did not re member how she wa s dressed the last time he did see he r. B iere nbaum contends that even if A lvare z’s31

rec ollection was “ shaky ,” his testimony was e ssential to counter the prosec ution’s argument that Bie renba

um lied when he told De tective O’ Malley that a doorma

n named Edg ar ha d seen K atz leave the building
. De te c tiv e O’ Ma lle y

te sti fi e d th a t in

the ir fi rs t c onve rs a tio n B ie re nb a um t old him that a doorma

n named Edg ar ha d seen K atz leave the buildingon J uly 7. When O’Malley followed this up in a sec ond conver sation, Bier enbaum sa id that Edg ar w as now not sure whether he’d se en her

on that or anothe r day . Edg ar River a told the police that he did not
re me mbe r s e e ingKatz on July 7. Whe n Ri ve ra

te sti fi e d at tr ia l, h e state d th a t he c ou ld not remembe r any

thing a bout J uly 7, 1985. Ha d th e de fe ns e c a lle d A lva re z, and ha d h e te sti fi e d in

a c c or da nc e wi th h is aff idavit, the jury

would have be en pre sented with the testimony of the re lief doorman, who re membere d not only the depa rture of a par ticular tena

nt, but what she wa s wea

ring
on an unre marka

ble Sunday

fiftee n y ear s befor e the tria l. They would have to have ignor ed the f

act that whe n asked a

bout that Sunday

fiftee n y ear s ag o, Alvare z, li ke Rivera, did not re call see ing K atz leave the building
. Un de r t he c ir c ums tanc e s, it w a s r e a so na ble fo r d e fe ns e c ouns e l no t to c a ll Alvare z. R ivera ’s testimony was not par

ticularly damag ing to B iere nbaum’s ca se. Detec tive O’Malley

testified that B iere nbaum told him he’d made a mistake, and that Rivera wa sn’t sure whe n he’d se en Katz. The prosecution did argue in summation that Bie renba um lied about the doorman, but the thrust of the argument was that B iere nbaumAl tho ug h th e re wa s n o e vid e nc e to t hat e ff e c t, d e fe ns e c ouns e l di d n ot o bje c t. 3 32 never spoke with Rivera at all in the day s after Katz’s disappea

ranc e. The Alva

rez 3 te sti mony , if

be lie ve d, wo uld

no t ha ve c ounte re d th is a

rgume nt, a s A lva

re z did no t c la im that he ’d me nti on e d h is s ig hti ngof Katz to B ie re nb a

um, or anyon e e lse , d

ur ingthi s period. “‘The decision not to call a pa rticular w itness is ty

pically a question of tria l strateg y .’” Gr e ine r v . W

e lls , 4 1 7 F. 3 d

3 0 5 , 3 2 3 (2 d

C i r. 2 0 0 5 ) ( qu o t i n g United States v. Luciano , 1 58 F .3 d 6 55 , 6 60 (2 d Ci r. 19 98 ) ( pe r c ur iam) ). Th e de c isi on no t to c a ll Alvare z was “within the rang e of a cce ptable strate g ic and tac tical alter natives.” Luciano , 158 F.3d at 660.

5. F ail ur e to c r os s- e xa m ine witn e ss A nt honySe ga las c onc e r ning K at z ’s use of c oc ain e A n th o n y S e g a l a s t e s t i f

i e d a ttr i a l th a th e an d

K a t z u s e d

c o c a i n e t o g e th e r

tw i c e . In 1985 Seg alas ha d told Detective D alg ass that he a nd Katz used coc aine on numer ous
occa sions. The police re port also stated that Katz phoned Sega las in J une 1985 and a sked him to ex amine some c ocaine she had bought, beca use she thoug ht she had re ceive d a short amount. Bie renba um faults defe nse counse l for fa iling to impeac h Seg alas with his prior statements, claimingthat this damag ed the de fense theory that Katz’s drugusag e and risky behavior may have le d to her disappe ara nce. Counsel sug g ested in his opening statement that “Y ou will also learn . . . that she had a dr ug issue and you will learn . . . at33

least one of

the lovers Ga il Katz Biere nbaum took behind Dr. B iere nbaum’s bac k was also someone she share d drug s with, and y ou will learn it from his own testimony .” Tria l Tr. vol. I , 1889. In summation, counsel attacke d the prosec ution’s use of the videota pes that showed how a

body could have been loa ded into an air plane a nd dropped into the sea , a sse rt ingthat th e vid e ota

pe s d id n ot s up ply

pr oo f o f what ha

pp e ne d to Katz. D ir e c tly following this argument he alluded to the f ilms “Panic in Needle Park,” a nd “L ooking f

or Mr. Goodbar ,” and sug g ested, in a similar ve in, that these movies did not prove that Katz’s druguse and r isky behavior wer e conne cted to her

death. L ater

in his summ ation, he re tur ne d to the dr

ug -r e late d d isa

pp e ara nc e the or y : . . . Seg alas-- they

did a little bit, what they

thought wa s coca ine that was le ft in the ho us e . Wa s sh e kil le d b y dr ugde a le rs ? Th a t is on e of the the or ie s th a t c ou ld have ha ppened. It is possi ble. Seg alas said she is the one who made the c onne c tio n. I t is no t th e fi rs t ti me an inno c e nt d ru g buy e r g e ts k ill e d in

the c ours e of a dr ugde a l. .
. . I t w a s a

dif fe re nt c ity

the n, a da ng e ro us pla c e , G a il K a tz Bie renba um may very well have found by

virtue of some of

her own behavior dang er. Trial. Tr. vol. IV, 3142. Had the de fense g otten Seg alas to admit that he a nd Katz used coc aine on se vera l
oc c a sio ns , th e de fe ns e su g g e sti on that sh e may

have be e n k ill e d b y

dr ugde a le rs wo uld still have be en plagued by lack of evidenc e, as the state cour t noted. The de fense , knowing that the alter

nate sc enar ios for Ga il Katz’s death had little in the way of fa ctual support, appar ently

chose to c ast all of the sc enar ios--the prose cution’s included- -as
m e r e l y th e o r i e s , w h i c hc o u l d n o tb e p r o v e nb e yo n d

a r e a s o n a b l e d o u b t . F o r th i s s tr a t e g y,34

the de fe ns e ha d n o p art ic ula r n e e d to e lic it e vid e nc e that K a tz w a s a re g ula r a s o pp os e d to
occa sional user. Eve n a neophy te could have “found . . . da ng er.” Pressing the point on
cross-e x amination risked alienating the jur y for no pa rticular strateg ic g ain. The state c ourt’s dete rmination that the cross- examination of Sega las was not constitutionally

defic ient was not an unr easona ble application of Strickland
. 6. F ailure to properly objec t to t he adm ission of the vid eotaped dem onstration On direc t appea l, Bier enbaum c ontended that the tr ial court e rrone ously admitted videotapes, de monstrating how a pilot can, without assistance , place a flig ht bagloaded with one hundre d ten pounds of we ight into a Cessna 172, fly the plane ove r the oc ean
and pu shit o ut. Th e Ap pe llate Di vis ion fo un d th e e rr or

un pr e se rv e d, and

de c lin e d to
re vie w i t. When the prosec ution gave notice dur ing tr ial that it had provided c opies of the
v i d eo t ap es t o th e d ef

en s e, co un s el s t at ed“I su s p ec twe ’l l o b j ec t . ” T h e t ri al j u d ge responde d “And I

suspect I ’ll allow it.” Trial Tr . vol. I I I , 2820, Oct. 12, 2000. The vid e ota pe s w e re su

bs e qu e ntl y

of fe re d into e vid e nc e wi tho ut o bje c tio n. Th e Ap pe llate Division held that Bier enbaum ha d not effe ctively protested the a dmission of the videotapes unde r Ne w York’ s prese rvation rule, which “‘ require [s] , at the ver y least, that any matter whic h a par

ty wishes the appe llate cour t to decide have bee n broug ht to the
a tte nti on of the tr ia l c ourt

a t a tim e and in a wa y that g ave the latte r t

he op po rt un ity to
reme dy the problem a

nd there by

aver t reve rsible er

ror.’ ” Richardson v. Gre ene , 497 F.3d 2 1 2 , 2 1 8 (2 d

C i r. 2 0 0 7 ) ( qu o t i n g Ga rc ia v . Le wis , 1 88 F .3 d 7 1, 78 (2 d Ci r. 19 99 )) ; see35

N.Y. Crim. Proc. L aw § 470.05[2]. B ie re nb a um n owargue s th a t hi s c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto p ro pe rl y object to the admission of the videota pes. He contends that the vide otapes lac ked any fo un datio n in

the e vid e nc e and

we re ba se d o n s pe c ulatio n. On that po int

we a g re e wi th the Appellate Division, the post-judgment motion court and the district court “that the contents of the vide otape[s] depict a sc enar io that was any thing but spec ulation. Rather, the tape’ s contents clea

rly demonstrate the fea sibili ty of the People’ s theory

of this case , a theory which all of the circ umstantial proof tog ether overwhelmingly

shows.” Bierenbaum , 748 N.Y.S.2d at 589 (dictum). Give n that the videotape s were neither sp e c ulativ e no r l a c kin g in f ound a tio n, c ouns e l w a s n ot i ne ff e c tiv e fo r f

a ili ngto o bje c t to their admission on that basis.

7. F ail ur e to m ov e for dism iss al o n t he gr ound o f insuffic ie nt e vid e nc e of spe c ific int e ntto kill At the close of

the prosec ution’s case , defe nse counse l “move[d] for a trial order of dis mis sa l of

the sin g le c ount o f t

he ind ic tme nt” be c a

us e “ the Pe op le fa ile d to e sta bli sh
ever y element of

the cr ime char g ed[,] and this case particula rly in . . . its circumstantial
natur e is i ns uf

fi c ie nt t o g o f

or wa rd fo r a jur y re so lut ion .” Tr ia l T r. vo l. IV, 30 09 -1 0, Oc t. 18, 2000. Followingthe close of evidenc e, counse l “move[d] to dismi ss the indictment . . . on the basis that the People ha ve fa iled to prove their c ase be y ond a re asonable doubt and to the leg al standar d require d for the c ase to g o to the jury .” Id. at 3107, Oct. 23, 2000. Under New Y ork law, “ [a] person is guilty of murder

in the second de g ree when .36

. . [w] ith intent to cause the de ath of a nother pe rson, he c auses the de ath of such pe rson . .

. . ” N. Y. Pe na l L aw § 12 5. 25 [1]. Atr ia l c ourt may iss ue a tr ia l or de r o f d ism iss a l a s to any count of a

n indictment on “the g round that the trial e vidence is not lega lly sufficie nt to establish the offe nse cha rg ed.” N .Y. Crim. Pro. L aw § 290.10[1]. Under NewYork law, a motion to dismiss for insuff icient evidenc e must “be spe cifica lly direc ted at the alleg ed er ror.” People v . Gray , 652 N.E.2d 919, 921 (N.Y . 1995) (inter nal quotation marks omitted). Bie renba um claims that his counsel was inef fec tive beca

use his motions di d not sp e c if y that he wa s c ha lle ng ingthe e le me nt o f i nte nt t o k ill , a nd that th e re fo re he c ou ld not seek re view of this claim on dire ct appe al. Although on this re cord the Appellate D ivision could have found a claim of lac k of intent to kill unpreserve d, it addresse d the leg al suffic iency of both eleme nts of second deg ree murder: “ The People pr oved beyond a re asonable doubt that this defendant ha d the op po rt

un ity , th e mot ive , a

nd the int e nt t o k ill his vic tim , a nd that it wa s h e wh o d id so.” Bierenbaum , 748 N.Y.S.2d at 579. Given that the A ppellate Division revie wed the
c la im that th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o p ro ve that B ie re nb a um i nte nd e d to
cause Katz’s death, he cannot c laim that counsel wa s ineffe ctive in fa iling to pre serve the issue for a

ppeal. 8. F ail ur e to obj e c t t o s um m at ion r e m ar ks Bie renba um faults his trial counsel for failing to object when the prosec ution argued in summation that Bier enbaum a llowed an a rgument to “g et explosi ve” a ndTh e pr os e c uti on argue d: 4 What does he do? He doe s not . . . tr[ y ] t o defuse the situation. He lets it ge t e xplos ive and

a s h e ha s d on e be fo re , a s o nly he ha s d on e be fo re , h e pla c e s h is hands ar ound her ne ck and be g ins to choke her . But he chokes he r much ha rder than he’ d done whe n she wa s only havinga cig are tte. Chokes her muc h harde r than when he had only

strang led her

to unconsciousness. He chokes he r to death. . . . He kne w in J uly

of 1985, what it would take to rende r her unconscious. He ’d done it in the past. He kne w in J uly of 1985, what it would take to kill her. He didn’t stop when he kne w he wa s hurting he r. He didn’t stop when he kne w she was unc onscious. He only stopped when she was de ad. . . . We think about the intimacy of strangulation. How close up you are with a per son that y ou are c ho kin g . . . . Str angulatio n is up c los e and pe rs on a l. Y ou

watc h a s it

lit e ra lly sq ue e ze[s ] the lif

e out of ano the r h uma n b e ing . T hink a

bo ut t he de fe nd ant. Hi s ang er at his wife. Think about him looking at her while he squeezes the life out of her. Think a

bout him st andingover G ail Katz as she fe els and he watche s the life ebbingfrom her

body . Now, you know what his intent was. Trial Tr. vol. IV, 3194, 3227-28. Bie renba

um also takes exception to his trial counsel’s fa ilure to object to the 5 prosec ution’s contention that he pre vented a complete f

orensic e x amination of the a partment. We addre ssed this point i n connec tion with counsel’s mistake in ref err ing to a

“for ensic” examination in hi s openingstatement, and f ound no prejudice
. 37 choked K atz as he had done befor e, only this ti me to her de ath. He a rgues that the 4 statements invited the jury to consider the 1983 c hoking inc ident as evide nce of propensity , and that ther e wa s no evidenc e that Katz di ed by strangulation or that Bie renba um stood over her

as she died. Although tr ial counsel made no contempora neous objec tion to the summ ation, befor e the jury

was c harg ed he move d for a mistrial on this and other g rounds. The trial

5 court de nied the motion, finding that the prosec ution had not argued prope nsity , but that the incident wa s probative of other issues in the ca se, par ticularly intent. The trial cour

t
a l s o th e r e a f

t e r a dv i s e d th e j ur y:38

. . . I have a llo we d th e Pe op le to i ntr od uc e e vid e nc e that on

ano the r o c c a sio n th is defe ndant committed a prior, what we c all leg ally [“] bad ac t,[ ”] to wit, t he str ang lin g of

Ga il K a tz B ie re nb a

um t o unc on sc iou sn e ss a

nd that w a s a llo we d in for c erta in limi ting pur

poses and I

want to make that very

clea r, as I did at the tim e su c h e vid e nc e wa s a dmi tte d. Th e fa c t th a t th is d e fe nd ant a lle g e dly committed a prior ba d act is no proof whatsoeve r that he posse ssed a pr opensity or d i s p o s i t i o nt o c o m m i tth e c r i m e c h ar g e d i nth i s i n d i c t m e n to r

an y o th e r c r i m e . It is not offere d for suc h a purpose and it must not be considere d by y ou for suc h a purpose. Instead the People wer e allowe d to offer such evide nce or

introduce su c h e vid e nc e so le ly

. . . a s p ro bativ e of

or re le va nt t o o r t o d e mon str a te defe ndant[’] s intent[ --]as they claim[--]to m urder

Gail Katz Bie renba

um . . . as probative of

his identity

as the pe rson they

claim committed the murder and whe n they summed up to y ou and made their ar g uments, Iallowed those a rguments on those points. Trial Tr. vol. IV, 3267-68. Bie renba um’s counsel e x plained that he w as conc erne d that a conte mporane ous ob je c tio n w ou ld h ave pr omp te d th e tr ia l c ourt to “ sum up ” in f

avo r o f t he pr os e c uti on , in other wor ds, to highlig ht for the jury the ar g ument that counsel found obje ctionable. The strateg y was a rea sonable one , g iven that the trial c ourt would have provided a limit ing instruction along the lines of the one g iven in the cha rg e. The Appellate D ivision conclude d that the trial cour t’s cautionar

y instructions about the prior a ssault evidence
wer e “le g ally

satisfac tory ” and a dequate ly protec ted B iere nbaum’s rig ht to a fair tr ial. Bierenbaum , 748 N.Y.S.2d at 583.

9. F ailure to re quest charge on te rrit orial jurisdiction Prior to trial Bier enbaum’ s attorney moved to dismiss the indictment, contending that the evidenc e pre sented to the g rand jury failed to prove that New Y ork had jurisdiction to prosecute him for the murder, be cause assuming that Katz was dea d, there
was no e vidence that her de ath occ urre d in New Yor k. The motion was denie d.39

Bie renba um argues that his trial counsel wa s ineffe ctive for failing to reque st a jury char g e to the ef

fec t that the prosec ution must prove be y ond a re asonable doubt that the crime oc curr ed within the state of N ew Yor k. Se e Pe op le v . M

c Lau gh lin , 606 N.E.2d 1357, 1359 (N.Y. 1992) (“[F]or the State to have criminal jurisdiction, either the a lleg ed conduct or

some conseque nce of

it must have oc curr ed within the State.”)
. Duri ngtr ia l th e e vid e nc e wa s unc on tr ov e rt e d th a t B ie re nb a um r e pe a te dly

state d to fr ie nd s, to r e lativ e s and

to t he po lic e that he la st s aw h is w if e in t he ir a pa rtme nt i n Manhattan. B iere nbaum’s only witness was Joel Davis, who saw a poster of the missing Katz and re ported sig hting he r on a Ma nhattan stree t on the afte rnoon of Sunday , J uly 7. B ie re nb a um s ug g e sts no w that a

jur y c ou ld h ave c on c lud e d th a t if he kil le d h is wife on July

7, 1985, he mig ht have done so in New Jersey and not in New Y ork. I t was
a re asonably

defe nsible leg al strategy

to conclude that on the state of the e vidence at trial th e j ur y s h o u l d b e a s k e d t o m ak e a

c h o i c e b e tw e e ntw o , n o tth r e e th e o r i e s o f th e c a s e . If the jury harbor ed a r easona

ble doubt conce rning Bie renba um’s g uilt, an instruction on jurisdiction would not have assisted the de fense . I f the jury conclude d beyond a
rea sonable doubt that B iere nbaum committed the murder , the jurors would not have ha rb or e d a re a so na ble do ub t th a t it

oc c ur re d in the a pa rtme nt. De fe ns e c ouns e l c ou ld
rea sonably

have c oncluded that it made no se nse to reque st a terr itorial jurisdiction instruction--unsupported by any evidenc e-- that contra dicted the de fense ’s theory of the
case , that Katz left the apa rtment alive a

nd was a live that afte rnoon on the stre ets of Manhattan.40

No ne of the a lle g e d e rr or s, ind ivi du a lly or c oll e c tiv e ly , amou

nt t o c on sti tut ion a lly defic ient repr esentation. I t follows that the state cour t’s reje ction of B iere nbaum’s ineffe ctive assistanc e of c ounsel claim wa s not an unrea sonable a pplication of the Strickland

standard. See H

emstree t v. Greine r , 491 F.3d 84, 90 ( 2d Cir. 2007). CO NC LU SION Th e dis tr ic t c ourt ’s de nia l of pe tit ion e r’ s a

pp lic a tio n f

or a wr it o f h a

be a s c or pu s is aff irmed.41

C ALABR E S I , C i rc u i tJ u d ge, co n cu rr i n g du bit an te : Ijoin J udg e Sessions’s opinion fully beca use I believe it to be c orre ct on the law. Ia dd a fe w w or ds be c a

us e thi s c a se tr ou

ble s me . I

be lie ve the re pr e se ntatio n g ive n to Ap pe lla nt b y his tr ia l c ouns e l le ft

a lot to b e de sir e d, tho ug h, fo r t he re a so ns state d in Judg e Se ssi on s’ s o pin ion , it do e s n ot u lti mate ly

amou nt t o c on sti tut ion a lly

ina de qu a te repr esentation. Ialso believe that the evidenc e of guilt is very thin. The sufficie ncy

of the evidenc e, howe ver, is not bef ore us. All this means that the de cision of the district court is prope rly

aff irmed.