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Cromartie v. Shealy

United States Court of Appeals, Eleventh Circuit

October 30, 2019


          Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:19-cv-00181-MTT.

          Before ED CARNES, Chief Judge, MARTIN, and ROSENBAUM, Circuit Judges.


         Ray 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 complaint.

         On 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 as moot.


         A. Cromartie's Crimes

         On 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.

         The 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 13.[1]

         Cromartie 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.

         Richard 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.

         As 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.

         Cooksey 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.

         B. Criminal Trial and Direct Appeal

         Cromartie 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.[2] 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. Id.

         The 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).

         C. First Order Setting Execution

         On 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.

         D. State Habeas Petition

         Cromartie 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 23-37.

         After 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 (2014).

         E. Federal Habeas Petition

         Cromartie 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.

         Cromartie 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).

         F. Extraordinary Motion for a New Trial & Postconviction DNA Testing

         On 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.[3] Doc 11 ¶ 23 n.5.

         After 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).

         G. Second Order ...

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