Summary
The Georgia Supreme Court reversed the grant of habeas corpus relief to Patrick Cusack on his second habeas petition. The Court held that the claim that aggravated stalking cannot be based solely on a single violation of a protective order could reasonably have been raised in Cusack’s first petition because existing law already established that a course or pattern of conduct was required. Accordingly, the claim was waived under OCGA § 9-14-51.
Topics
Practice areas
Questions Presented
- Whether Cusack's second habeas petition was permissible under OCGA § 9-14-51 because the asserted claim could not reasonably have been raised in his first petition.
- Whether State v. Burke represented a substantive change in criminal law that made Cusack's aggravated-stalking claim unavailable when he filed his first habeas petition.
- Whether existing Georgia law already precluded an aggravated-stalking conviction based solely on a single violation of a protective order.
Holdings
- A claim may be considered in a successive habeas petition only if it is constitutionally nonwaivable or could not reasonably have been raised in the earlier petition; because Cusack's claim could have been raised earlier, relief could not be granted on the second petition.
- State v. Burke did not create a substantive change in criminal law; it reiterated the existing statutory requirement that aggravated stalking involve a course or pattern of harassing and intimidating behavior.
- Although a single violation of a protective order alone cannot establish aggravated stalking, one violation may constitute aggravated stalking when it is part of a pattern of harassing and intimidating behavior.
Key quotations
“On the contrary, Burke simply reiterated the existing law, as stated in the statute.” (296 Ga. at 539)
“And, of course, one act of violating a protective order, when done as part of a pattern of harassing and intimidating behavior, see OCGA § 16-5-90 (a) (1), can constitute the crime of aggravated stalking.” (296 Ga. at 540)
Factual background
Cusack pleaded guilty to aggravated stalking and seven counts of criminal damage to property in the second degree. His second habeas petition alleged that the aggravated-stalking conviction rested solely on a single act of sending a letter in violation of a court order. The habeas court found that the conviction was based solely on that act and granted habeas relief.
Procedural history
Cusack pleaded guilty in 2006 to aggravated stalking and seven counts of criminal damage to property in the second degree. His first habeas petition was denied, and the Supreme Court of Georgia denied his application for a certificate of probable cause to appeal. In 2013, he filed a second habeas petition arguing that his aggravated-stalking conviction was void under State v. Burke because it was based solely on one violation of a protective order. The habeas court granted relief, and the Supreme Court of Georgia reversed.