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State v. Cusack

Supreme Court of Georgia

February 16, 2015

THE STATE
v.
CUSACK

Habeas corpus. Fulton Superior Court. Before Judge Tusan.

Judgment reversed.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, David K. Getachew-Smith, Assistant District Attorneys, for appellant.

Yurachek & Associates, Mark A. Yurachek, for appellee.

HINES, Justice. All the Justices concur.

OPINION

Page 371

Hines, Presiding 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 appeal that decision.

Cusack filed a second habeas petition on April 12, 2013, citing State v. Burke, 287 Ga. 377, 379 (695 S.E.2d 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 [296 Ga. 535] 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 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 ...


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