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Ricardo Bailey v. Secretary

November 10, 2011

RICARDO BAILEY, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS.



ORDER

Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 8). Upon consideration of the amended petition, the Court ordered Respondents to show cause why the relief sought in the amended petition should not be granted. Thereafter, Respondents filed a response to the amended petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. No. 10). Petitioner filed a reply to the response (Doc. No. 17).

Petitioner alleges five claims for relief in his amended habeas petition. For the following reasons, the amended petition is denied.

I. Procedural History and Facts Adduced at Trial

Petitioner was charged by information with two counts of sexual battery with a deadly weapon or physical force (counts one and four), kidnapping with intent to commit a felony (count two), home invasion robbery (count three), burglary of a dwelling with an assault or battery with a weapon (count five), aggravated assault with a deadly weapon (count six), and burglary of a conveyance with an assault or battery (count seven). A trial was conducted.

Samah Chihi ("Chihi") testified that on the morning of October 3, 2004, at approximately 6:30, she left her apartment to go to work. On her way to the car, she observed a man wearing white pants, a white shirt, and white socks attempting to speak to her roommate who was getting in her car. Chihi said the man subsequently approached her vehicle, started talking to her, pulled a knife, partially cut her seatbelt, and forced her into the passenger seat. Chihi testified that the man drove her vehicle to the car wash area in her apartment complex and forced her to perform oral sex on him. According to Chihi, Petitioner also took her cellular phone and made approximately three calls but did not have any conversations.

She stated that Petitioner then drove the vehicle back to her apartment and directed her into the apartment at which time he took some jewelry from the apartment and again forced her to perform oral sex. Chihi testified that Petitioner then directed her to knock on the doors of her neighbors because he needed money. Chihi said she knocked on a couple of doors, but no one answered until she knocked on the door of Eleigha Ward ("Ward"). Chihi stated that Ward opened her door and Petitioner pulled her inside of Ward's apartment and held a knife on both of them. Ward had her infant son in the apartment at the time. Chihi testified that Petitioner kept her and Ward together once they were inside the apartment.

Chihi said that Ward gave Petitioner $50, which he returned. Chihi testified that Petitioner expressed remorse for what he had done, apologized, and prayed with them. She stated that Petitioner allowed her to leave and gave her back her rings. Chihi went to her apartment but did not call the police because she was afraid. A few minutes later, however, she heard a loud noise and someone running. Chihi said that Ward then knocked on her door and said that Petitioner was gone, and Ward called the police.

Likewise, Ward testified that she was awakened by a knock on her door on the morning of the incident. Recognizing Chihi, she opened the door at which time Petitioner put a knife to her throat and came into her apartment. Ward testified that Petitioner did not take anything from her, apologized for his actions, and prayed with them. Ward said that Petitioner allowed Chihi to leave and then opened the door to see where Chihi went at which time she pushed Petitioner out of the apartment and locked the door. She testified that she heard Petitioner run away and she called the police.

Petitioner testified that he had been at a club in Orlando on the morning of the incident and after leaving the club came to the victims' apartment complex with a friend whose girlfriend lived there. According to Petitioner, he wanted to smoke some marijuana so he went in search of someone from whom to purchase it. He said that he saw Chihi sitting on the stairs smoking and approached her about obtaining some marijuana. Petitioner testified that Chihi took him to Ward's apartment where he obtained some marijuana. He said that Chihi then drove him to a convenience store near the apartment to buy rolling papers. Petitioner testified that he and Chihi went to her apartment, smoked marijuana, and she willingly performed oral sex on him. According to Petitioner, the two were going to have sexual intercourse, but before they did, Chihi said he had to pay her money. In response, Petitioner said that he told her he was married and would not pay her. Petitioner testified that the victim threatened to call the police and say that he raped her if he did not pay her money. Petitioner said that he then left the apartment.

The jury found Petitioner guilty as charged of counts one, four, five, six, and seven and guilty of the lesser-included offense of false imprisonment as to count two and the lesser-included offense of petit theft as to count three. The state court sentenced Petitioner to concurrent twenty-five year terms of imprisonment for the sexual battery counts (counts one and four), to five years of supervised probation for counts two and six, to sixty days time served for count three, and to ten years of probation for counts five and seven.

Petitioner filed a motion to correct an illegal sentence. The state court granted the motion and resentenced Petitioner to concurrent twenty-year terms of imprisonment for counts one and four to be followed by five years of sex offender probation, to concurrent five-year terms of probation for counts two, five, six and seven, and to sixty days time served for count three. Petitioner appealed, and the Fifth District Court of Appeal of Florida affirmed.

Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The state court denied the motion. Petitioner appealed, and the Fifth District Court of Appeal of Florida affirmed per curiam.

II. Legal Standards

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]section 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle ...


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