In the Supreme Court of Georgia
Decided: February 16, 2015
S14A1471. THE STATE v. CUSACK.
HINES, Justice.
The State appeals from the grant of a writ of habeas corpus to Patrick
Cusack. For the reasons that follow, we reverse.
On September 19, 2006, Patrick Cusack (“Cusack”) pled guilty to one
count of aggravated stalking and seven counts of criminal damage to property
in the second degree. On March 31, 2010, Cusack filed a petition for habeas
corpus relief, asserting that the aggravated stalking plea was not freely and
voluntarily made, as: 1) the court failed to apprise him of required constitutional
rights; 2) trial counsel and the court failed to have his competency evaluated
prior to the plea; and 3) trial counsel failed to pursue dismissal of his case by all
means available. The habeas court denied the petition, and this Court denied
Cusack’s application for a certificate of probable cause to the appeal that
decision.
Cusack filed a second habeas petition on April 12, 2013, citing State v.
Burke, 287 Ga. 377, 379 (795 SE2d 649) (2010), for the proposition that “a
single violation of a protective order, alone, simply does not establish ‘a pattern
of harassing and intimidating behavior,’[Cit.],” id., and claiming that his
aggravated stalking conviction was based solely on a single violation of a
protective order, and therefore is void. The habeas court granted Cusack relief,
finding that the aggravated stalking charge was, in fact, based solely on a single
act of sending a letter contrary to a court order, and that the misdemeanors of
criminal damage to property in the second degree were treated as crimes
separate from the aggravated stalking charge.
Thus, habeas relief was granted on consideration of Cusack’s second
habeas petition. Ordinarily, habeas relief is not available on the filing of a
second habeas petition. Rather, under OCGA § 9-14-51,
[a]ll grounds for relief claimed by a petitioner for a writ of habeas
corpus shall be raised by a petitioner in his original or amended
petition. Any grounds not so raised are waived unless the
Constitution of the United States or of this state otherwise requires
or unless any judge to whom the petition is assigned, on considering
a subsequent petition, finds grounds for relief asserted therein
which could not reasonably have been raised in the original or
amended petition.
And here, the habeas court found that the ground for relief asserted in Cusack’s
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second habeas petition could not have been raised in his first petition,
specifically agreeing with Cusack’s contention “that the present [i.e. second]
Petition is the first available opportunity [Cusack] had to attack his conviction”
after Burke, noting that Burke was decided three months after Cusack filed his
first petition for a writ of habeas corpus. But, in doing so, the habeas court
erred.
When considering a successive petition under OCGA § 9-14-51,
the habeas court must determine, as the threshold matter, whether
the petitioner is entitled to a hearing on the merits of his belated
claims. [Cit.] In order to be so entitled, the petitioner must raise
grounds which are either constitutionally nonwaivable or which
could not reasonably have been raised in the earlier petition. [Cits.]
Tucker v. Kemp, 256 Ga. 571, 573 (351 SE2d 196) (1987). A claim that could
not reasonably be raised in an earlier petition would likely include a
circumstance in which a change in the law after the first petition “‘might render
a later challenge successful. [Cit.]’” Id.
The habeas court treated this Court’s decision in Burke as though the
opinion created a substantive change in the criminal law, in that it “altered the
range of conduct or the class of persons that the law punishes.” Schriro v.
Summerlin, 542 U.S. 348, 353 II (A) (124 SCt 2519, 159 LE2d 442) (2004)
3
(Citation omitted.) See also Chatman v. Brown, 291 Ga. 785, 788 (2) (733
SE2d 712) (2012). However, the habeas court was incorrect. In fact, not only
after, but also before this Court’s opinion in Burke issued, Cusack could not
have been convicted of aggravated stalking based solely upon a single violation
of a protective order; the authority on that point was clear. And, it is not the
mere fact that Burke issued that underlies Cusack’s second habeas petition, but
the principle that a conviction for aggravated stalking cannot be based solely
upon a single violation of a protective order.
As the habeas court recognized, in Burke, the defendant was convicted of
aggravated stalking based solely upon a single violation of a protective order.
In rendering our decision in Burke, this Court looked to the relevant statutory
language and noted that, under OCGA § 16-5-91 (a),1 aggravated stalking is
committed by doing certain acts in violation of a protective order “for the
1
OCGA § 16-5-91 (a) reads:
A person commits the offense of aggravated stalking when such person, in violation
of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary
restraining order, temporary protective order, permanent restraining order, permanent
protective order, preliminary injunction, good behavior bond, or permanent
injunction or condition of pretrial release, condition of probation, or condition of
parole in effect prohibiting the behavior described in this subsection, follows, places
under surveillance, or contacts another person at or about a place or places without
the consent of the other person for the purpose of harassing and intimidating the other
person.
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purpose of harassing and intimidating” the victim, and that, for the purpose of
OCGA § 16-5-91 (a), the phrase “harassing and intimidating” was defined in
OCGA § 16-5-90 (a) (1),2 as
a knowing and willful course of conduct directed at a specific
person which causes emotional distress by placing such person in
reasonable fear for such person's safety . . . by establishing a pattern
of harassing and intimidating behavior, and which serves no
legitimate purpose. (Emphasis supplied.) [Cit.]
Id. at 378. Accordingly, Burke held that a single violation of a protective order,
by itself, does not constitute aggravated stalking, and noted that this holding was
“[b]ased on the plain terms of the stalking statutes . . . .” Id. In doing so, Burke
2
OCGA § 16-15-90 (a) (1) reads:
A person commits the offense of stalking when he or she follows, places under
surveillance, or contacts another person at or about a place or places without the
consent of the other person for the purpose of harassing and intimidating the other
person. For the purpose of this article, the terms “computer” and “computer network”
shall have the same meanings as set out in Code Section 16-9-92; the term “contact”
shall mean any communication including without being limited to communication
in person, by telephone, by mail, by broadcast, by computer, by computer network,
or by any other electronic device; and the place or places that contact by telephone,
mail, broadcast, computer, computer network, or any other electronic device is
deemed to occur shall be the place or places where such communication is received.
For the purpose of this article, the term “place or places” shall include any public or
private property occupied by the victim other than the residence of the defendant. For
the purposes of this article, the term “harassing and intimidating” means a knowing
and willful course of conduct directed at a specific person which causes emotional
distress by placing such person in reasonable fear for such person's safety or the
safety of a member of his or her immediate family, by establishing a pattern of
harassing and intimidating behavior, and which serves no legitimate purpose. This
Code section shall not be construed to require that an overt threat of death or bodily
injury has been made.
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did not overrule any prior interpretation of the aggravated stalking statute, or
change anything in its application. Rather, Burke simply addressed a certain fact
pattern, and the State’s argument that under that fact pattern, the defendant could
be found guilty of aggravated stalking. But, the State’s argument was simply
wrong, and the fact that this Court in Burke rejected a meritless argument that
went against the language of the statute does not mean that Burke constituted a
change in substantive criminal law. On the contrary, Burke simply reiterated
the existing law, as stated in the statute. Indeed, before Cusack pled guilty in
2006, this Court noted that to establish the crime of aggravated stalking, the
State must “ prove a ‘knowing and willful course of conduct.’ [And,] [a] ‘course
of conduct’ refers to a series of successive actions, and, as such, is equivalent
to a ‘pattern of behavior.’” Daker v. Williams, 279 Ga. 782, 785 (621 SE2d
449) (2005). Such was the state of the law on aggravated stalking before
Cusack pled guilty to that crime, and before this Court’s opinion in Burke.3
Although Cusack cites State v. Carlisle, 280 Ga. 770 (631 SE2d 347)
3
This Court’s opinion in Burke, supra, was issued after a grant of certiorari in Burke v. State,
297 Ga. App. 38 (676 SE2d 766) (2009). In that opinion, issued a year before Cusack filed his first
habeas petition, the Court of Appeals specifically stated that the State’s argument that it could gain
a conviction for aggravated stalking by proving only a single violation of a court order “is not a
correct statement of the law.”
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(2006), for the proposition that, prior to the filing of his first habeas petition,
precedent of this Court showed that a conviction for aggravated stalking could
be had based upon a single violation of an order specified in OCGA § 16-5-91
(a), that is not so. Carlisle dealt with a defendant who had been convicted of
aggravated stalking as a party to the crime with her co-defendant Gibbs; it was
Gibbs who was subject to a condition of a pretrial release, and the Carlisle
opinion addressed what knowledge defendant Carlisle must have had regarding
Gibbs’s pretrial release condition in order for her to be guilty of aggravated
stalking. Id. No question was before this Court regarding whether a conviction
for aggravated stalking could be based on nothing more than a single violation
of an order specified in OCGA § 16-5-91 (a), nothing in Carlisle can be read to
have ruled on such an issue, and Carlisle cannot be considered to have
established precedent on that point. See State v Walker, 295 Ga. 888, 893 (764
SE2d 804) (2014). Further, Carlisle came to this Court on a grant of a writ of
certiorari to the Court of Appeals, and that Court’s opinion makes clear that, in
fact, defendant Carlisle had been indicted not only as a party to Gibbs’s crimes,
but also for her own acts taken in furtherance of a pattern of harassing and
intimidating the victim. See Carlisle v. State, 273 Ga. App. 567 (625 SE2d 543)
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(2005). 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. Louisyr v. State, 307 Ga.
App. 724, 725-730 (1) (706 SE2d 114) (2011). Accordingly, under the
precedents existing at the time of Cusack’s first habeas petition, a claim that
Cusack could not be convicted of aggravated stalking based solely on a single
violation of a protective order could have been raised. Consequently, under
OCGA § 9-14-51, habeas relief could not be granted on Cusack’s second habeas
petition. Tucker, supra at 374.4
Judgment reversed. All the Justices concur.
4
Further, even if this Court’s opinion in Burke had represented a substantive change in the
criminal law that could not have been raised until that opinion issued, it appears Cusack’s second
habeas petition would nonetheless have been subject to dismissal. Under OCGA § 9-14-51, grounds
not raised in the earlier habeas petition are waived “unless . . . [the] judge to whom the petition is
assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could
not reasonably have been raised in the original or amended petition.” And, although Cusack could
not have argued that Burke affected the validity of his conviction in his original first petition, he
certainly could have amended the petition to timely include such an argument. This Court has stated
that a habeas petitioner has an “unfettered right to amend” his petition at any time before the hearing
on the issues presented therein. Nelson v. Zant, 261 Ga. 358, 359 (2) (405 SE2d 250) (1991). See
also Jarrell v. Zant, 248 Ga. 492 (n. 1) (284 SE2d 17) (1981). Cusack filed his first habeas petition
on March 31, 2010; Burke was decided on June 28, 2010, and the habeas court held a hearing on
April 28, 2011. Thus, ten months passed between the issuance of the supposedly substantive change
in the law, and the hearing on Cusack’s first habeas petition. Although Cusack did not file an
amendment to his petition, given such a time frame, it would have been reasonable to do so had the
substantive criminal law actually changed, and OCGA § 9-14-51would thus operate so as to treat
that ground as waived.
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