The opinion of the court was delivered by: Seybert, District Judge.
Petitioner Reynaldo Cartagena ("Cartagena" or "Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons below, Cartagena's petition for a writ of habeas corpus is DENIED.
BACKGROUND I. Procedural History
Petitioner was convicted by a jury in the County Court of Suffolk County, on November 3, 1995, of two counts of Kidnapping in the Second Degree and two counts of Robbery in the First Degree. The judgment of conviction was rendered on January 25, 1996.
Petitioner was sentenced as a second felony offender. For the first counts of Kidnapping and Robbery, Petitioner was sentenced to an indeterminate term of imprisonment of nine to 18 years. For the second counts of Kidnapping and Robbery, Petitioner was sentenced to an indeterminate term of imprisonment of nine to 18 years. The two sentences of nine to eighteen years are to run consecutively, for a total sentence of 18 to 36 years.
Cartagena appealed his conviction to the Appellate Division, Second Department. On appeal, Petitioner presented five claims of error: (1) the People failed to prove his guilt beyond a reasonable doubt; (2) the trial court erred when it refused the Petitioner's request to exclude spectators from the courtroom who were wearing allegedly prejudicial clothing; (3) the trial court erred when it allowed the jury to hear a prejudicial and inflammatory question posed by the detective during Petitioner's interrogation, to which Petitioner had not responded; (4) Petitioner's convictions of Kidnapping and Robbery should have been merged; and (5) the sentence imposed was harsh and excessive.
On October 9, 2001, the Appellate Division, Second Department, confirmed the conviction. People v. Cartagena, 287 A.D.2d 515, 731 N.Y.S.2d 469 (2d Dep't 2001). The New York State Court of Appeals denied Petitioner's request for leave to appeal on December 19, 2001. People v. Cartagena, 97 N.Y.2d 680, 764 N.E.2d 399, 738 N.Y.S.2d 295 (2001). Petitioner did not seek a writ of certiorari from the Supreme Court of the United States.
After the failure of his attorney to submit a timely habeas petition, Petitioner filed a pro se Petition for Writ of Habeas Corpus on October 4, 2004. Petitioner raised the same five grounds for relief that he raised on his direct appeal.
On November 22, 2004, the Court issued an Order directing Petitioner to show cause why his Petition should not be dismissed as time-barred by the one-year limitations period contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d). Petitioner submitted an affidavit on December 3, 2004, alleging that the limitations period should be equitably tolled because his attorney compromised his efforts to file a timely petition. On April 13, 2006, the Court appointed counsel for Petitioner. In June 2007, after Petitioner's first appointed counsel failed to file supplemental papers with the Court and failed to respond to various communications, the Court appointed Petitioner's current counsel. On March 3, 2008, the Court accepted Cartagena's Petition as timely pursuant to 28 U.S.C. § 2244, as amended by the AEDPA.
On May 15, 2008, Petitioner's counsel filed a memorandum in support of the Petition for a writ of habeas corpus, limiting his substantive argument to Petitioner's claim that his Fifth Amendment rights were violated by the inclusion of post-arraignment interrogation into evidence. On May 28, 2008, Respondent filed opposition papers addressing the grounds raised by both Cartagena's pro se Petition and the memorandum prepared by Petitioner's counsel.
On February 23, 1994, Petitioner and another male approached Benjamin Semonella, a traveling salesman for Snap-On Tools, a company that sells automotive tools and equipment, in Deer Park, New York. One of the men pulled out a gun and forced Semonella into the back of his van. The men drove the truck with Semonella in the back for what Semonella believed was about an hour and a half. Petitioner and his accomplice(s) ultimately stole the tools in the back of the van and left Semonella and the van in Brooklyn, New York. The New York City Police eventually found the van and Semonella.
On March 18, 1994, an individual approached Joseph Montemurro, a traveling salesman for Snap-On Tools, when Montemurro made a stop at a transmission repair shop in Huntington, New York. The individual stopped to speak with Montmurro to inquire about a tool set. At the same time, Petitioner and an accomplice approached Montemurro and pushed him to the side of the van. Petitioner took out a gun and forced Montemurro into the van. Petitioner forced Montemurro to lay on the floor in the back of the van while Petitioner stole Montemurro's glasses and $2,500 in cash. Petitioner tied Monetmurro's hands with Montemurro's belt, and Petitioner and his accomplices drove the van. The van made a few stops, during which merchandise was taken off of the van. At some point, a police officer pulled over the van. The driver indicated that he was a Snap-On employee, but when the officer asked to look inside the van, the driver fled. The driver was ultimately apprehended and identified as Petitioner's cousin, Robert Rivera ("Rivera").
During the investigation of the robberies, Detective Henry Kozen ("Detective Kozen") learned that Petitioner was Rivera's cousin, Petitioner matched the description given by Montemurro and Semonella, and that Petitioner had ties to both Brooklyn and Suffolk County. Detective Kozen assembled a photo spread, which he presented to Montemurro. Montemurro identified Petitioner.
On May 3, 1994, officers brought Petitioner to the police precinct, where he was met by Detective Kozen and Detective Anton Pravetz. Detective Kozen ("Kozen") testified that, after detaining Petitioner for interrogation, he read Petitioner his Miranda rights. Petitioner declined to contact a lawyer. Kozen then informed Petitioner that there would be a lineup that night and that he knew Petitioner was involved in the robbery-kidnappings and that the victims would identify him in the lineup. Kozen urged Petitioner to cooperate and Petitioner responded, saying "I can't snitch, I can't give up the other guys. It wouldn't be right."
(Tr. 2.81.) Kozen answered "That's because you are the main guy. The reason you won't give up the other guy is because you are the main guy." (Id.) According to Kozen, Petitioner then made a hand gesture and no longer wanted to speak. (Id.) Both victims then identified Petitioner in a lineup.
Petitioner bases his pro se Petition for a writ of habeas corpus upon five central grounds. Petitioner's counsel focuses his memorandum in support of the Petition on the third ground originally asserted by Petitioner. First, Petitioner asserts that the People failed to prove his guilt beyond a reasonable doubt. Second, Petitioner argues that the trial court erred when it refused, at the defense's request, to exclude spectators from the courtroom who were wearing clothes with clearly visible "Snap-On Tools" logos. Third, Petitioner, in his pro se Petition, asserted that his constitutional right to remain silent was violated when the trial court allowed the jury to hear Detective Kozen's question, "That's because you are the main guy. The reason you won't give up the other guy is because you are the main guy," and Petitioner's silence in response to the question. Petitioner argues that the question was prejudicial and inflammatory. However, Petitioner's new counsel further argues that Petitioner's right to remain silent was violated because his comment, "I can't snitch" was an invocation of silence and thus Detective Kozen should have ceased his questioning at that moment. Petitioner argues that the entire colloquy between himself and Detective Kozen was improperly used against him as evidence at trial. Petitioner's fourth argument is that his convictions of kidnapping and robbery as to each incident should merge. Finally, Petitioner argues that the sentence imposed was harsh and excessive.
Respondent argues that none of the foregoing warrant the relief Petitioner seeks, and additionally argues that Petitioner's new argument regarding the "snitch" comment is unexhausted and procedurally barred.
The Court's review of the Petition is governed by the guidelines set forth at 28 U.S.C. § 2254, as amended by the AEDPA, Pub. L. No. 104-132, 110 Stat. 1214. The Court will first address the issue of exhaustion and then proceed to the merits of the instant Petition.
I. Exhaustion and Procedural Default
One of the most well-known barriers to federal habeas corpus relief is the failure to exhaust claims. The exhaustion doctrine is codified at 28 U.S.C. § 2254 - most specifically subsections (b) and (c). "In general, the exhaustion doctrine provides that a habeas petitioner seeking to upset his state conviction on federal grounds must first have given the state courts a fair opportunity to pass upon his federal claim." Daye v. Attorney General of the State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982). The doctrine is based upon principles of comity and serves to ensure that the federal courts do not interfere with state court authority. Manning v. Artuz, No. 94-CV-3325, 1996 U.S. Dist. LEXIS 22224, at *3 (E.D.N.Y. June 3, 1996) (citing Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979)); see also Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed. 2d 379 (1982).
To exhaust state remedies, a petitioner must: "(i) present the federal constitutional claim asserted in the petition to the highest state court . . . and (ii) inform that court of both the factual and legal bases for the federal claim." DiGuglielmo v. Senkowski, 42 Fed. Appx. 492, 494, 2002 U.S. App. LEXIS 10656 at *6 (2d Cir. 2002) (holding that because petitioner failed to identify any violated federal constitutional provisions in a Leave Application submitted to the state court, the court declined to reach the merits of his claims) (citing Picard v. Connor, 404 U.S. 270, 276-77, (1971); Daye v. Attorney Gen. of the State of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982) (en banc). The burden of proving exhaustion lies with the habeas petitioner. See Colon v. Johnson, 19 F. Supp. 2d 112, 120 (S.D.N.Y. 1998).
Specifically, in proving that the claims have been "fairly presented," the petitioner must show that the federal constitutional claims are the same, both legally and factually, as those brought at each level of state court proceedings. See id. at 115 (internal citations omitted). The claim that the petitioner presents to the highest state court must be the "claim that is now the gravamen of his federal ...