from the United States District Court for the Middle District
of Georgia D.C. Docket No. 7:19-cv-00181-MTT.
ED CARNES, Chief Judge, MARTIN, and ROSENBAUM, Circuit
CARNES, CHIEF JUDGE.
Jefferson Cromartie was convicted of murdering Richard Slysz
during an armed robbery committed more than twenty-five years
ago. As punishment for that crime, he is scheduled to be
executed on October 30, 2019, at 7:00 p.m. On October 22,
2019, he filed a 42 U.S.C. § 1983 complaint in federal
district court claiming that Georgia's postconviction DNA
statute, Ga. Code Ann. § 5-5-41(c), is unconstitutional.
Two days later, he filed a motion to stay his execution so
that the district court could consider his § 1983
October 29, the district court issued a cogent opinion
dismissing Cromartie's complaint and denying his motion
for a stay of execution. Cromartie appeals those rulings and
asks this Court to issue an emergency stay of execution
pending the resolution of his appeal. We affirm the district
court and deny his emergency motion for a stay of execution
FACTS AND PROCEDURAL HISTORY
April 7, 1994, Cromartie went to the Madison Street Deli in
Thomasville, Georgia. Cromartie v. State, 514 S.E.2d
205, 209 (Ga. 1999). He was carrying a .25 caliber pistol
that he had borrowed earlier that day from his cousin, Gary
Young. Id. He walked behind the counter to where the
store clerk, Dan Wilson, was washing dishes, and shot him in
the face. Id. After trying and failing to open the
cash register, he left empty-handed. Id. Wilson
suffered a severed carotid artery but fortunately he
survived. Id. The next store clerk Cromartie shot
would not be so fortunate.
following day Cromartie asked Young and Carnell Cooksey if
they saw the news. Id. He told Young that he had
shot Wilson. Id. He also asked Cooksey if he was
"down with the 187," which meant robbery, and he
talked about a Junior Food Store with "one clerk in the
store and they didn't have no camera." Id.
Cooksey said he was not interested. Doc. 1-2 at
found some people who were. On April 10, Thaddeus Lucas
agreed to drive Cromartie and Corey Clark to a store so they
could steal beer. Cromartie, 514 S.E.2d at 209.
While in the car, Cromartie had Lucas drive past the closest
open store and go instead to the Junior Food Store.
Id. Once they were there, Cromartie instructed Lucas
to park at a nearby apartment complex and wait while he and
Clark went into the store. Doc. 1-2 at 15.
Slysz was the clerk on duty and when the two entered the
store he was sitting on a stool behind the register.
Id. Cromartie shot him twice. Id. The first
shot entered below his right eye, but left him alive and
conscious. Cromartie, 514 S.E.2d at 209.
Cromartie's second shot hit Slysz in his left temple.
Id. The two shots to his head sealed Slysz's
fate. He lingered for a short while but died. Id.
Slysz lay dying or dead, Cromartie and Clark tried and failed
to open the cash register. Id. They fled, but not
before Cromartie grabbed two 12-packs of Budweiser beer.
Id. A clerk in a convenience store across the street
heard the shots and saw two men fitting the general
descriptions of Cromartie and Clark run from the store.
Id. at 209-10. Cromartie was carrying the beer.
Id. at 210. While they fled, one of the packs of
beer tore open outside the store and some of the cans fell to
the ground. Id. A passing motorist saw the two men
run from the store and appear to drop something. Id.
Clark would later testify that he gathered all but two of the
cans before he and Cromartie got into Lucas' car. Doc.
1-2 at 16.
testified that when Cromartie and the other two men met up
with him after the shooting, they had a muddy pack of beer.
Cromartie, 514 S.E.2d at 210. He recounted how
Cromartie boasted about shooting the clerk twice.
Id. In a muddy field next to the store the police
found a portion of a Budweiser beer carton, two cans of beer,
and a shoeprint. Doc. 1-2 at 17. It was identified as a
possible match for Cromartie's shoes, but not for
Young's, Clark's, or Lucas'. Id. The
beer carton had Cromartie's thumb print on it.
Id. A police canine unit tracked Cromartie's and
Clark's scents to the nearby apartment complex where
Cromartie had told Lucas to wait. Id. And a firearms
expert determined that the .25 caliber pistol that Cromartie
had borrowed from Young fired the bullets that had seriously
wounded Wilson and killed Slysz. Cromartie, 514
S.E.2d at 210.
Criminal Trial and Direct Appeal
was indicted in Thomas County, Georgia on one count of malice
murder, one count of armed robbery, one count of aggravated
battery, one count of aggravated assault, and four counts of
possessing a firearm during the commission of a crime.
Id. at 209 n.1. Young, Cooksey, Lucas, and Clark
testified as prosecution witnesses at Cromartie's
trial. Id. at 210, 213; Cromartie v.
Georgia, No. 2000-v-295, slip op. at 53-77 (Butts Cty.
Sup. Ct. Oct. 9, 2012). On September 26, 1997, the jury found
him guilty of all counts, and five days later it recommended
a sentence of death. Cromartie, 514 S.E.2d at 209
n.1. The trial court sentenced Cromartie to death for the
malice murder, to life imprisonment for the armed robbery,
and for his other crimes to lesser terms of imprisonment, all
of which were to be served consecutively. Id. The
court denied Cromartie's motion for a new trial.
Georgia Supreme Court affirmed Cromartie's convictions
and sentences on March 8, 1999. Id. at 215. He filed
a motion for reconsideration, which the court denied. Notice
of Filing, Cromartie v. Warden, GDCP, No.
7:14-cv-00039 (M.D. Ga. July 7, 2014), ECF 18-31. The United
States Supreme Court denied his petition for certiorari,
Cromartie v. Georgia, 528 U.S. 974 (1999), and his
petition for rehearing, Cromartie v. Georgia, 528
U.S. 1108 (2000).
First Order Setting Execution
April 19, 2000, the Thomas County Superior Court issued an
order setting Cromartie's execution for the week of May 9
through May 16, 2000. Notice of Filing, Cromartie,
No. 7:14-cv-00039, ECF 19-3. Cromartie filed a motion for a
stay of execution in both the superior court and the Georgia
Supreme Court. Id. ECF 19-4, 19-9. Both of those
motions were denied. Id. ECF 19-6, 19-12.
Cromartie's execution was, however, automatically stayed
when he filed a state habeas petition four days before the
week of his scheduled execution. See id. ECF 19-13.
State Habeas Petition
filed a habeas petition in the Butts County Superior Court on
May 5, 2000, id. ECF 19-14, and amended it on
December 9, 2005, id. ECF 20-22. The court held an
evidentiary hearing on August 12 through 14, 2008.
Id. ECF 21-24. It denied his petition in an
eighty-six page order on February 9, 2012. Id. ECF
Gary Young, a trial witness, recanted some of his testimony
Cromartie filed a motion to reconsider the denial of his
state habeas petition. Id. ECF 23-42. The court
reopened discovery so that Young could be deposed.
Id. ECF 23-44, 23-45, 23-47. On October 9, 2012, the
court found that Young's recantation was unreliable and
denied Cromartie's motion to reconsider. Id. ECF
24-9; see supra note 2. He filed in the Georgia
Supreme Court an application for a certificate of probable
cause to appeal the February 9 order that denied his habeas
petition and the October 9 order that denied his motion for
reconsideration. Id. ECF 24-10. The Georgia Supreme
Court denied his application, id. ECF 24-14, and the
United States Supreme Court denied his petition for a writ of
certiorari, Cromartie v. Chatman, 572 U.S. 1064
Federal Habeas Petition
filed a habeas petition in the Middle District of Georgia on
March 20, 2014, and amended it on June 22, 2015. Petition for
Writ of Habeas Corpus, Cromartie, No. 7:14-cv-00039,
ECF 1, 62. The district court denied the habeas petition and
declined to issue a certificate of appealability on any of
his claims. Cromartie v. Warden, No. 7:14-cv-00039,
2017 WL 1234139, at *43-44 (M.D. Ga. Mar. 31, 2017). The
district court thereafter denied Cromartie's Rule 59
motion to alter or amend the judgment. Order,
Cromartie, No. 7:14-cv-00039, ECF 84.
then filed in this Court an application for a certificate of
appealability, which we denied. Cromartie v. GDCP
Warden, No. 17-12627, 2018 WL 3000483, at *1 (11th Cir.
Jan. 3, 2018); see also Order, Cromartie,
No. 17-12627, ECF 26 (denying motion for reconsideration).
The United States Supreme Court denied certiorari on December
3, 2018. Cromartie v. Sellers, 139 S.Ct. 594 (2018).
Extraordinary Motion for a New Trial & Postconviction
December 28, 2018, Cromartie filed a motion in the Thomas
County Superior Court asking for a new trial and DNA testing
on various items that had been introduced as evidence during
his trial. Doc. 11 ¶ 27. He contended that two
advancements in DNA technology - the ability to test
"touch DNA" and probabilistic genotyping - could
reveal that one of his accomplices was the actual triggerman.
Doc. 1-2 at 31-32. Cromartie does not deny being involved in
the robbery in which Slysz was murdered but contends that he
did not fire the shots. Doc 11 ¶ 23 n.5.
the court held an evidentiary hearing, it issued an order
denying Cromartie's motion on September 16, 2019. Doc.
1-2 at 3-36. The court concluded that (1) even if the DNA
testing showed what Cromartie alleged it would, the results
would not establish a reasonable probability that the verdict
would have been different, and (2) he could not show that his
motion was not filed for the purpose of delaying his
execution. Id. On October 25, 2019, the Georgia
Supreme Court denied Cromartie's application for a
discretionary appeal. Cromartie v. State, Case No.
S20D0330 (Ga. Oct. 25, 2019).
Second Order ...