Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 489-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, POSNER, and MANION,Circuit Judges.
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 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 together. On February 28, 2002, Curtis was served with an order of protection, which, among other things, prohibited 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 Chester'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' 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 protection, 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 surveillance consisted of arriving at a location where the victim had agreed to meet him."*fn1
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 prosecution 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.
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 "remaining 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 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 ...