Curtis, James v. Montgomery, Jesse

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3737
JAMES C URTIS,
Petitioner-Appellant,
v.
JESSE M ONTGOMERY,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 489—Matthew F. Kennelly, Judge.
A RGUED D ECEMBER 17, 2008—D ECIDED JANUARY 8, 2009
Before B AUER, P OSNER, and M ANION, Circuit Judges.
B AUER, Circuit Judge. An Illinois jury found James Curtis
guilty of aggravated stalking, telephone harassment, and
violating an order of protection. After exhausting his state
remedies, Curtis filed a pro se petition for a writ of habeas
corpus, 28 U.S.C. § 2254, in the federal district court
arguing, among other things, that the prosecution failed
to prove all of the elements of aggravated stalking
2 No. 07-3737
beyond a reasonable doubt. The district court denied his
petition, but we granted a certificate of appealability.
Curtis dated Deborah Chester for more than three
years; during that time the couple had a daughter to-
gether. On February 28, 2002, Curtis was served with
an order of protection, which, among other things, prohib-
ited him from contacting Chester or going into her
house. In the middle of the night after Curtis was
served, he called Chester to inform her that he had been
released from jail and that the next time he went back
“it would be for something more serious.” Chester called
the police. The next day—March 1—Curtis went to Ches-
ter’s house while she was out. Curtis repeatedly demanded
to know where Chester was, but Jeneen Edwards, Chester’s
babysitter, refused to either tell him or open the door.
Instead, she called the police. By the time the police
arrived, Curtis had left, but they found him five
blocks away and arrested him.
About two months later, on April 28, 2002, Edwards
awoke at Chester’s home to find that the furniture had
been slashed. Chester and Edwards later discovered that
some jewelry, leather jackets, and a set of keys had been
stolen, and that some of Chester’s court paperwork was
missing. Two days after that, Curtis called Chester and
threatened to kill her if she did not allow him to see his
daughter. She reported the threat to the police. Later that
day, Curtis called back, assuring Chester that if she
allowed him to see his daughter, he would return the
leather jackets, which he admitted stealing.
Chester again called the police, who told her to arrange
a meeting with Curtis. Chester complied with the officers’
No. 07-3737 3
instructions, and, when Curtis called back, agreed to
meet him. A few minutes after Chester arrived at the
meeting place, Curtis got out of a van and started walking
towards Chester’s car. He waved to her and motioned
for her to come towards him. Instead, she drove away,
and several detectives, who were staked out nearby,
arrested him.
A jury found Curtis guilty of aggravated stalking,
telephone harassment, and violating an order of protec-
tion, but acquitted him of residential burglary and
criminal damage to property. The trial court sentenced
him to a total of 10 years’ imprisonment. The Illinois
appellate court vacated the conviction for violating the
protective order, finding that it was a lesser included
offense of aggravated stalking, but otherwise affirmed
the judgment. Curtis unsuccessfully sought rehearing by
the appellate court. Curtis’s petitions for leave to appeal
to the Illinois Supreme Court and for a writ of certiorari
to the U.S. Supreme Court were denied.
While Curtis’s direct appeal was pending, he filed a
petition for post-conviction relief, which the Illinois
circuit court dismissed as frivolous. The Illinois appellate
court affirmed, and the Illinois Supreme Court denied
leave to appeal.
In January 2007 Curtis petitioned the federal district
court for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court denied the petition, but we issued a
certificate of appealability on the question “whether there
was sufficient evidence to sustain his conviction for
aggravated stalking where one of the two requisite acts of
4 No. 07-3737
surveillance consisted of arriving at a location where
the victim had agreed to meet him.” 1
A petitioner is entitled to a writ of habeas corpus if, as
relevant here, a state court unreasonably applies clearly
established federal law, meaning that it identifies the
appropriate standard, but unreasonably applies it to the
facts. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529
U.S. 362, 412-13 (2000). Curtis argues that the Illinois
appellate court unreasonably applied Jackson v. Virginia,
443 U.S. 307 (1979), when it upheld his conviction for
aggravated stalking. Jackson requires that the prosecu-
tion put forward enough evidence of each element of the
offense that a rational fact finder could find the defendant
guilty beyond a reasonable doubt. Jackson, 443 U.S. at
324; Johnson v. Bett, 349 F.3d 1030, 1034 (7th Cir. 2003);
McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003). Curtis
maintains that, viewing the evidence in the light most
favorable to the State—as we must, Jackson, 443 U.S. at 319;
Johnson, 349 F.3d at 1034—no rational trier of fact could
have found that the State proved all of the elements of
aggravated stalking beyond a reasonable doubt.
1
The State represents in its brief that Curtis has been released
from prison and has completed his mandatory supervised-
release term, but, as the State points out, this change in status
does not moot Curtis’s petition. See Spencer v. Kemna, 523 U.S. 1,
7-8 (1998) (noting presumption that petitioners who have
been released from custody suffer adverse consequences from
the fact of their convictions); Torzala v. United States, 545
F.3d 517, 521 (7th Cir. 2008); Leyva v. Williams, 504 F.3d 357,
363 (3d Cir. 2007).
No. 07-3737 5
As relevant here, a person commits aggravated stalking
if, in violation of an order of protection, he knowingly and
without lawful justification places another person under
surveillance on at least two occasions and threatens the
victim with bodily harm. 720 ILCS 5/12-7.3(a)(1), 7.4(a)(3).
A person places another “under surveillance” by “remain-
ing present outside” the victim’s home, work, school,
or vehicle. Id. at 5/12-7.3(d). Curtis concedes that the
March 1 incident, when he went to Chester’s home and
demanded to know her whereabouts, constitutes one act
of surveillance. He contends, however, that the State did
not prove a second act of surveillance. Specifically, he
says that arriving at a location where Chester had agreed
to meet him was not an act of surveillance.
First, Curtis argues that the State did not prove beyond
a reasonable doubt that he “remained present” outside of
Chester’s car. He maintains that the State’s evidence
established that he was arrested as he was approaching
Chester’s car, and thus, that he could not possibly have
“remained” outside of it. The State contends, however, that
this argument is not cognizable because, it says, Curtis is
really taking issue with the state court’s interpretation of
state law, specifically what it means to “remain present”
outside of a vehicle for purposes of 5/12-7.3(d).
On direct appeal to the Illinois appellate court, Curtis
pressed a similar argument. The appellate court analyzed
the purposes behind the stalking statute and prior cases
interpreting the phrase “remain present.” People v. Curtis,
820 N.E.2d 1116, 1123-24 (Ill. App. Ct. 2005). It concluded
that the statute did not require the State to prove that
6 No. 07-3737
Curtis remained present outside of Chester’s car for a set
amount of time or that he stopped, stayed, or waited
outside of the car. Id. at 1124. Furthermore, the court
explained, the question “whether a particular set of
circumstances constitutes ‘surveillance’ as defined in the
statute is a question of fact for the jury.” Id. It noted that
Curtis’s actions did not fit the usual pattern where a
stalker lay in wait for his victim, but it interpreted
the statute as prohibiting a broader range of conduct,
observing that it did not require the police to wait for
the stalker to reach the victim to act. Id.
We agree with the State that Curtis is impermissibly
attempting to use a petition for a writ of habeas corpus
to press his preferred interpretation of Illinois law. We may
not review state-court interpretations of state law. See
Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lambert v.
Davis, 449 F.3d 774, 778-79 (7th Cir. 2006). And petitioners
cannot avoid this limitation by recasting their argu-
ments as challenges to a state court’s application of Jack-
son. See Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991).
Curtis insists that he is not challenging the Illinois ap-
pellate court’s interpretation of what constitutes sur-
veillance, but his arguments belie that assertion. He says
that the April 30 “incident” was “exceedingly brief,” he
“merely arrived where Ms. Chester agreed to meet him,”
and there was no evidence that he had time to “say a
single word” to Chester or that he was lying in wait
for Chester to arrive. Curtis then contrasts the facts of his
case to facts of other stalking cases where the defendants
watched their victims for longer periods of time.
No. 07-3737 7
These arguments, however, ignore the Illinois appellate
court’s decision that the stalking statute does not require
the state to prove that the defendant was present near
his victim for a minimum amount of time. Instead, the
court said, it was up to the jury to decide whether the
totality of a defendant’s actions—including in this case
the “brief period” Curtis was near Chester’s car—consti-
tuted surveillance. Curtis, 820 N.E.2d at 1124. Curtis does
not say how, given this “time-less” definition of “remain
present,” the evidence was insufficient to prove beyond
a reasonable doubt that his actions constituted surveil-
lance. Indeed, the evidence, viewed in the light most
favorable to the verdict, establishes that Curtis was ar-
rested while walking toward Chester’s car after luring
her to a meeting place by threatening to kill her if she
refused and promising to return her belongings if she
agreed. Under the interpretation of “remain present”
adopted by the Illinois appellate court, the evidence was
sufficient to convince a reasonable trier of fact beyond a
reasonable doubt that Curtis put Chester under surveil-
lance.
Curtis next argues that the State did not prove beyond
a reasonable doubt that his conduct was “knowing” and
“without lawful justification,” insisting that there was
no evidence that Curtis knew that he was surveilling
Chester and that the evidence showed that Curtis wanted
to meet with Chester only for the legitimate purpose of
seeing his daughter. The State contends that Curtis proce-
durally defaulted federal review of these arguments,
noting that he first raised them on a motion to recon-
sider after the appellate court decided his direct appeal,
and arguing that this was too late.
8 No. 07-3737
A petitioner is required to present his federal claims to
the state courts in accordance with the state’s procedural
requirements so that the state courts have a meaningful
opportunity to correct any mistakes. See Martin v. Evans,
384 F.3d 848, 854 (7th Cir. 2004); Chambers v. McCaughtry,
264 F.3d 732, 737-38 (7th Cir. 2001). If the petitioner
misses the opportunity to properly present a claim to
the state courts, then federal review of the claim is for-
feited. See Lieberman v. Thomas, 505 F.3d 665, 669 (7th
Cir. 2007). Curtis insists that his arguments on direct
appeal were adequate to preserve his current challenge
to the sufficiency of the evidence of his intent. To fairly
present claims, however, a petitioner must provide the
state and federal courts with the same factual and legal
bases. See Anderson v. Benick, 471 F.3d 811, 815 (7th Cir.
2006). Although Curtis did argue in his direct appeal
that the state did not prove beyond a reasonable doubt
that he engaged in two acts surveillance, he made no
mention of the intent element. Compare Stevens v. McBride,
489 F.3d 883, 893-94 (7th Cir. 2007). That Curtis might
have argued intent in his motion for reconsideration is
irrelevant because the court declined to rehear the appeal.
Curtis further argues that his petition for post-conviction
relief, if read liberally, might have raised this ground for
relief. The state courts did not construe Curtis’s petition as
attacking the evidence of intent, and it would require an
overly liberal reading to tease this argument out of his
submissions. In his 47-page brief to the appellate court,
he quotes the stalking statute’s intent element—“knowing
and without legal justification”—and on several occasions
puts quotation marks around the word “knowing,” but
No. 07-3737 9
it is always in the context of attacking the evidence of
surveillance. He never actually argues in any specific
way that the State failed to produce evidence that he
knew he was stalking Chester and that he was doing
it without legal justification. He makes even fewer refer-
ences to the intent element in his petition for leave to
appeal to the Illinois Supreme Court.
In any event, there was enough evidence from which a
rational juror could find beyond a reasonable doubt
that Curtis engaged in surveillance of Chester “know-
ingly.” A defendant acts “knowingly” as long as he “is
aware of the existence of facts that make his conduct
unlawful”; he need not know that his actions are illegal.
People v. Zamudio, 689 N.E.2d 254, 258 (Ill. App. Ct. 1997).
Curtis argues that there was insufficient evidence that he
acted knowingly because the state did not prove that
Chester objected to the meeting or that she reminded
Curtis of the protective order. But neither fact is required
to prove knowledge. A rational trier of fact could have
concluded based on the trial testimony that Curtis knew
he was luring Chester to a meeting by threatening her
and by offering to return her property, and he certainly
knew that the protective order prohibited all contact
with Chester. Thus, the State produced sufficient evi-
dence that Curtis acted knowingly.
Finally, the prosecution presented sufficient evidence
that Curtis did not have a lawful justification for his
actions. See Zamudio, 689 N.E.2d at 259. Curtis insists that
the evidence showed only that he and Chester agreed to
meet so that he could see his daughter, which he was
10 No. 07-3737
legally allowed to do. But even though Curtis was permit-
ted to visit his daughter, the protective order prohibited
him from contacting Chester in any way. Furthermore,
there was evidence, which the jury was entitled to
believe, that Chester only agreed to the meeting because
of Curtis’s threat, hardly a “lawful justification” for
meeting her.
Therefore, we AFFIRM the judgment of the district court.
1-8-09