State v. Cusack
296 Ga. 534
| Ga. | 2015Background
- In 2006 Patrick Cusack pled guilty to one count of aggravated stalking and seven counts of criminal damage to property (2nd degree).
- In 2010 Cusack filed a habeas petition claiming his aggravated-stalking plea was involuntary (court failed to advise rights; competency and counsel failures); that petition was denied and he was refused a certificate of probable cause on appeal.
- In April 2013 Cusack filed a second habeas petition relying on State v. Burke, arguing aggravated stalking cannot be based solely on a single violation of a protective order and therefore his conviction was void.
- The habeas court granted relief on the second petition, finding the aggravated-stalking conviction rested solely on a single letter sent in violation of a protective order and treating the other misdemeanors as separate crimes.
- The State appealed, arguing the second petition was barred by OCGA § 9-14-51 unless the claim could not reasonably have been raised earlier or was constitutionally nonwaivable.
- The Supreme Court of Georgia reversed, holding Burke did not create a new substantive rule and that Cusack could have raised the single-violation argument earlier (and could have amended his first petition after Burke issued).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aggravated stalking can be based on a single violation of a protective order | Cusack: Burke shows a single violation cannot, so his conviction is void | State: Second habeas petition is barred under OCGA § 9-14-51 unless claim was unavailable earlier | Held: Burke reiterated existing statutory law; single violation alone cannot support aggravated stalking, but Cusack could have raised it earlier, so second petition was barred |
| Whether Burke constituted a substantive change in criminal law excusing successive-petition waiver | Cusack: Burke created a new rule he could not have raised in first petition | State: Burke did not change substantive law; earlier precedent already required a "course of conduct" | Held: Burke did not announce a new substantive rule; it applied the plain statutory language and prior precedent already required a pattern |
| Whether the habeas court erred in finding the claim could not reasonably have been raised earlier | Cusack: Burke issued after his first petition, so claim was not available before | State: Even after Burke, Cusack had time to amend his first petition before the habeas hearing | Held: Court: the single-violation claim was available under preexisting law (e.g., Daker), and even if Burke were new, Cusack could have amended his petition before the hearing |
| Whether relief on a successive petition was permissible under OCGA § 9-14-51 exception | Cusack: exception applies because Burke made the claim newly viable | State: exception doesn't apply—claim was not newly viable and was waived | Held: Exception did not apply; habeas relief on the second petition was improper and must be reversed |
Key Cases Cited
- State v. Burke, 287 Ga. 377 (reaffirming statutory requirement of a "course of conduct"; single violation insufficient for aggravated stalking)
- Daker v. Williams, 279 Ga. 782 (stalking requires a "knowing and willful course of conduct"; a course of conduct implies a series or pattern)
- Tucker v. Kemp, 256 Ga. 571 (standards for considering successive habeas petitions under OCGA § 9-14-51)
- Schriro v. Summerlin, 542 U.S. 348 (distinguishing substantive rule changes in criminal law from mere applications of existing law)