United States District Court, M.D. Georgia, Valdosta Division
T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE
JEFFERSON CROMARTIE was sentenced to death for the murder of
Richard Slysz. For the reasons discussed below, the Court
denies habeas relief.
BACKGROUND AND PROCEDURAL HISTORY A. Facts
Georgia Supreme Court summarized the facts of this case in
Cromartie's direct appeal:
Cromartie borrowed a .25 caliber pistol from his cousin Gary
Young on April 7, 1994. At about 10:15 p.m. on April 7,
Cromartie entered the Madison Street Deli in Thomasville and
shot the clerk, Dan Wilson, in the face. Cromartie left after
unsuccessfully trying to open the cash register. The tape
from the store video camera, while too indistinct to
conclusively identify Cromartie, captured a man fitting
Cromartie's general description enter the store and walk
behind the counter toward the area where the clerk was
washing pans. There is the sound of a shot and the man leaves
after trying to open the cash register. Wilson survived
despite a severed carotid artery. The following day,
Cromartie asked Gary Young and Carnell Cooksey if they saw
the news. He told Young that he shot the clerk at the Madison
Street Deli while he was in the back washing dishes.
Cromartie also asked Cooksey if he was “down with the
187, ” which Cooksey testified meant robbery. Cromartie
stated that there was a Junior Food Store with “one
clerk in the store and they didn't have no camera.”
In the early morning hours of April 10, 1994, Cromartie and
Corey Clark asked Thaddeus Lucas if he would drive them to
the store so they could steal beer. As they were driving,
Cromartie directed Lucas to bypass the closest open store and
drive to the Junior Food Store. He told Lucas to park on a
nearby street and wait. When Cromartie and Clark entered the
store, Cromartie shot clerk Richard Slysz twice in the head.
The first shot which entered below Slysz's right eye
would not have caused Slysz to immediately lose consciousness
before he was hit by Cromartie's second shot directed at
Slysz's left temple. Although Slysz died shortly
thereafter, neither wound caused an immediate death.
Cromartie and Clark then tried to open the cash register but
were unsuccessful. Cromartie instead grabbed two 12-packs of
Budweiser beer and the men fled. A convenience store clerk
across the street heard the shots and observed two men
fitting the general description of Cromartie and Clark run
from the store; Cromartie was carrying the beer. While the
men were fleeing one of the 12-packs broke open and spilled
beer cans onto the ground. A passing motorist saw the two men
run from the store and appear to drop something.
Cooksey testified that when Cromartie and his accomplices
returned to the Cherokee Apartments they had a muddy case of
Budweiser beer and Cromartie boasted about shooting the clerk
twice. Plaster casts of shoe prints in the muddy field next
to the spilled cans of beer were similar to the shoes
Cromartie was wearing when he was arrested three days later.
Cromartie's left thumb print was found on a torn piece of
Budweiser 12- pack carton near the shoe prints. The police
recovered the .25 caliber pistol that Cromartie had borrowed
from Gary Young, and a firearms expert determined that this
gun fired the bullets that wounded Wilson and killed Slysz.
Cromartie's accomplices, Lucas and Clark, testified for
the State at Cromartie's trial.
Cromartie v. State, 270 Ga. 780, 781-82, 514 S.E.2d
205, 209-10 (1999).
September 26, 1997, a jury found Cromartie guilty of malice
murder, armed robbery, aggravated battery, aggravated
assault, and four counts of possession of a firearm during
the commission of a crime. Id. at 781 n.1, 514
S.E.2d at 209 n.1. On October 1, 1997, the jury sentenced
Cromartie to death for the murder. Id.
filed a motion for new trial, and a hearing was held on March
12, 1998. (Doc. 18-24). On April 7, 1998, the Court denied the
motion. (Doc. 17-8 at 187). Cromartie filed a notice of
appeal on May 6, 1998. (Doc. 18-25 at 1-2). The Georgia
Supreme Court affirmed his conviction and sentence on April
2, 1999. Cromartie, 270 Ga. at 781, 514 S.E.2d at
209. The United States Supreme Court denied his petition for
certiorari on November 1, 1999. Cromartie v.
Georgia, 528 U.S. 974 (1999).
filed a Petition for Writ of Habeas Corpus in the Superior
Court of Butts County, Georgia on May 9, 2000. (Doc. 19-14).
After conducting an evidentiary hearing, the state habeas
court denied relief in an order dated February 8, 2012.
(Docs. 21-14 to 23-20; 23-37). Cromartie applied for an
extension of time to file his Application for Certificate of
Probable Cause to Appeal (“CPC application”),
which was granted on March 2, 2012. (Docs. 23-38; 23-39).
Around this time, a key prosecution witness, Gary Young, said
he testified falsely at Cromartie's trial. (Doc. 1 at 8).
On March 8, 2012, Cromartie filed an emergency motion in the
Georgia Supreme Court requesting an extension of time to file
his notice of appeal. (Doc. 23-40). On March 9, 2012, the
Georgia Supreme Court granted a 30-day extension. (Doc.
filed an emergency motion for reconsideration in the Butts
County Superior Court and additional proceedings related to
Young's recantation took place in that court. (Doc. 1 at
9). Because his emergency motion for reconsideration did not
toll the time for filing a notice of appeal, Cromartie filed
a notice of appeal on April 9, 2012. (Docs. 1 at 8; 24-2). In
an order dated April 25, 2012, the Butts County Superior
Court denied Cromartie's emergency motion for
reconsideration. (Doc. 24-3). On October 1, 2012, the Georgia
Supreme Court found that the superior court did not have
jurisdiction when it entered the April 25, 2012 order because
Cromartie had previously filed his notice of appeal on April
9, 2012. (Doc. 24-8). The Georgia Supreme Court, therefore,
granted Cromartie's CPC application and remanded his case
“to the habeas court to allow it to regain jurisdiction
and . . . enter an appropriate new order.” (Doc. 24-8).
In an order dated October 5, 2012, the Butts County Superior
Court re-entered its April 25, 2012 order denying
reconsideration. (Doc. 24-9).
filed a notice of appeal on October 24, 2012 and a CPC
application on November 8, 2012. (Docs. 24-10; 24-11 at 64).
The Georgia Supreme Court summarily denied his CPC
application on September 9, 2013 and issued its remittitur on
December 10, 2013. (Docs. 24-14; 33-1). The United States
Supreme Court denied Cromartie's petition for writ of
certiorari on April 21, 2014. Cromartie v. Chatman,
134 S.Ct. 1879 (2014).
filed his habeas petition in this Court on March 20, 2014.
(Doc. 1). On April 1, 2014, Respondent filed a motion to
dismiss Cromartie's federal habeas petition as untimely.
(Doc. 9). Respondent alleged Cromartie's federal habeas
petition was untimely because statutory tolling under 28
U.S.C. § 2244(d)(2) ended on the date the Georgia
Supreme Court denied Cromartie's CPC application. (Doc. 9
at 4). On December 29, 2014, this Court denied
Respondent's motion to dismiss, finding that
“Cromartie's federal habeas petition is untimely
only if § 2244(d)(2) tolling ended on the day the
Georgia Supreme Court denied Cromartie's CPC application.
It did not.” (Doc. 42 at 18). After this Court denied
Respondent's motion to certify its December 29, 2014
Order for interlocutory appeal, Respondent moved for
permission to appeal in the Eleventh Circuit, which was
denied on April 10, 2015. (Docs. 45; 46; 51; 52)
now represented by the Federal Community Defender Office for
the Eastern District of Pennsylvania,  filed an amended
federal habeas petition on June 22, 2015 and Respondent filed
an answer on July 22, 2015. (Docs. 62; 64). On March, 21,
2016, Respondent moved to amend his answer to assert a
statute of limitations defense to Claim Ten in
Cromartie's amended petition. (Doc. 74). After allowing
both parties to brief the issue, the Court granted
Respondent's motion to amend. (Docs. 76 to 80).
parties have now briefed all outstanding issues.
STANDARD OF REVIEW
Exhaustion and procedural default
default bars federal habeas review when a habeas petitioner
has failed to exhaust state remedies that are no longer
available or when the state court rejects the habeas
petitioner's claim on independent state procedural
grounds. See Michigan v. Long, 463 U.S. 1032,
1040-42 (1983) (explaining that an adequate and independent
finding of procedural default will generally bar review of
the federal claim); Frazier v. Bouchard, 661 F.3d
519, 524 n.7 (11th Cir. 2011); Ward v. Hall, 592
F.3d 1144, 1156-57 (11th Cir. 2010).
are two exceptions to procedural default. If the habeas
respondent establishes that a default has occurred, the
petitioner bears the burden of establishing “cause for
the failure to properly present the claim and actual
prejudice, or that the failure to consider the claim would
result in a fundamental miscarriage of justice.”
Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011)
(citing Wainwright v. Sykes, 433 U.S. 72, 81-88
(1977); Marek v. Singletary, 62 F.3d 1295, 1301-02
(11th Cir. 1995)). A petitioner establishes cause by
demonstrating that some objective factor external to the
defense impeded his efforts to raise the claim properly in
the state courts. Spencer v. Sec'y,
Dep't of Corr., 609 F.3d 1170, 1180 (11th Cir.
2010) (quoting Henderson v. Campbell, 353 F.3d 880,
892 (11th Cir. 2003)). A petitioner establishes prejudice by
showing that there is “a reasonable probability that
the result of the proceeding[s] would have been
different.” Id. Regarding what is necessary to
establish the narrowly-drawn fundamental miscarriage of
justice exception, the Eleventh Circuit has stated:
To excuse a default of a guilt-phase claim under [the
fundamental miscarriage of justice] standard, a petitioner
must prove “a constitutional violation [that] has
probably resulted in the conviction of one who is actually
innocent.” To gain review of a sentencing-phase claim
based on [a fundamental miscarriage of justice], a petitioner
must show that “but for constitutional error at his
sentencing hearing, no reasonable juror could have found him
eligible for the death penalty under [state] law.”
Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996)
Claims that were adjudicated on the merits in the state
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides the standard of review. This
Court may not grant habeas relief with respect to any claim
that was adjudicated on the merits in state court unless the
state court's decision was (1) contrary to clearly
established Federal law; (2) “involved an unreasonable
application of clearly established Federal law;” or (3)
“was based on an unreasonable determination of the
facts in light of the evidence presented in the [s]tate court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2); see
also Harrington v. Richter, 562 U.S. 86, 100 (2011). The
phrase “clearly established Federal law” refers
to the holdings of the United States Supreme Court that were
in existence at the time of the relevant state court
decision. Thaler v. Haynes, 559 U.S. 43, 47 (2010);
Williams v. Taylor, 529 U.S. 362, 412 (2000).
‘contrary to' and ‘unreasonable
application' clauses of § 2254(d)(1) are separate
bases for reviewing a state court's decisions.”
Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001)
(citing Williams, 529 U.S. at 404-05).
Under § 2254(d)(1), “[a] state court's
decision is ‘contrary to'... clearly established
law if it ‘applies a rule that contradicts the
governing law set forth in [the United States Supreme
Court's] cases' or if it ‘confronts a set of
facts that are materially indistinguishable from a decision
of [the United States Supreme] Court and nevertheless arrives
at a [different] result. . . .'”
Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir.
2005) (quoting Mitchell v. Esparza, 540 U.S. 12,
court's decision involves an “unreasonable
application” of federal law when “‘the
state court identifies the correct governing legal rule but
unreasonably applies it to the facts of the particular state
prisoner's case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from
Supreme Court case law to a new context.'”
Reese v. Sec'y, Fla. Dep't of Corr., 675
F.3d 1277, 1286 (11th Cir. 2012) (quoting Greene v.
Upton, 644 F.3d 1145, 1154 (11th Cir. 2011)). An
“unreasonable application” and an
“incorrect application” are not the same:
We have explained that an unreasonable application
of federal law is different from an incorrect
application of federal law. Indeed, a federal habeas court
may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must be objectively
unreasonable. This distinction creates a substantially higher
threshold for obtaining relief than de novo review.
AEDPA thus imposes a highly deferential standard for
evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.
Renico v. Lett, 559 U.S. 766, 773 (2010) (citations
and quotation marks omitted). To obtain relief “a state
prisoner must show that the state court's ruling on the
claim . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103. In other words, a habeas
petitioner must establish that no fairminded jurist could
agree with the state court's decisions. Woods v.
Etherton, 136 S.Ct. 1149, 1152-53 (2016); Pope v.
Sec'y, Fla. Dep't of Corr., 752 F.3d 1254, 1262
(11th Cir. 2014); Holsey v. Warden, Ga. Diagnostic
Prison, 694 F.3d 1230, 1257 (11th Cir. 2012).
to 28 U.S.C. § 2254(d)(2), district courts can
“grant habeas relief to a petitioner challenging a
state court's factual findings only in those cases where
the state court's decision ‘was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.'”
Price v. Allen, 679 F.3d 1315, 1320 (11th Cir. 2012)
(quoting 28 U.S.C. § 2254(d)(2)). A state court's
factual finding is not unreasonable simply because the
federal habeas court might have made a different finding had
it been the first court to interpret the record. Burt v.
Titlow, 134 S.Ct. 10, 15 (2013) (citing Wood v.
Allen, 558 U.S. 290, 301 (2010)). Again, this Court can
grant relief only if it finds “no ‘fairminded
jurist' could agree with the state court's
determination” of the facts. Holsey, 694 F.3d
at 1257 (quoting Richter, 562 U.S. at 101). Also, a
state court's factual determination is “presumed to
be correct, ” and this presumption can only be rebutted
by “clear and convincing evidence.” 28 U.S.C.
The relevant state court decisions
deciding if the state court's decision was contrary to
Supreme Court precedent, or involved an unreasonable
application of law or determination of fact, the court
“review[s] one decision: ‘the last state-court
adjudication on the merits.'” Wilson v.
Warden, 834 F.3d 1227, 1232 (11th Cir. 2016) (quoting
Greene v. Fisher, 565 U.S. 34, 40 (2011)), cert.
granted, 85 U.S.L.W. 3409 (Feb. 27, 2017) (No. 16-6855).
The relevant decision in Cromartie's case for claims that
were adjudicated on direct appeal is the Georgia Supreme
Court's opinion. Cromartie, 270 Ga. at 780-89,
514 S.E.2d at 209-15. For claims that the Georgia Supreme
Court “provide[d] a reasoned opinion, ” this
Court “evaluate[s] the opinion.” Wilson,
834 F.3d at 1235. The relevant decision for claims
adjudicated during state habeas proceedings is the Georgia
Supreme Court's summary denial of Cromartie's CPC
application. Id. at 1232-35. Because the Georgia
Supreme Court “provide[d] no reasoned opinion”
this Court “review[s] that decision using the test
announced in Richter”:
[A] petitioner's burden under section 2254(d) is to
“show there was no reasonable basis for the state
court to deny relief.” “[A] habeas court must
determine what arguments or theories . . . could have
supported . . . the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the United States
Supreme] Court.” Under that test, [Cromartie] must
establish that there was no reasonable basis for the Georgia
Supreme Court to deny his [CPC application].
Id. at 1235 (quoting Richter, 562 U.S. at
state habeas court's final orders denying state habeas
relief (Doc. 23-37; 24-9) are relevant in two
respects. First, if the state habeas court denied a
claim on a procedural ground, such as procedural default, the
Court assumes the Georgia Supreme Court's denial of
relief “rests on the same general
ground.” Id. at 1236. Thus, there is a
“rebuttable presumption that state procedural default
rulings are not undone by” the Georgia Supreme
Court's unexplained denial of a CPC application.
Id. at 1237.
“[w]hen assessing under Richter whether there
‘was no reasonable basis for the state court to deny
relief, ' a federal habeas court may look to a previous
opinion as one example of a reasonable application of law or
determination of fact.” Id. at 1239 (quoting
Richter, 562 U.S. at 98). If the reasoning of the
state habeas court is reasonable, the federal court's
inquiry ends because “there is necessarily at least one
reasonable basis on which the [Georgia Supreme Court] could
have denied relief.” Id. The relevant state
court decision, however, is still the Georgia Supreme
Court's denial of the CPC application “and federal
courts are not limited to assessing the reasoning of the
lower court.” Id. Thus, if the state habeas
court's opinion “contains flawed reasoning, ”
federal courts must give the Georgia Supreme Court
“‘the benefit of the doubt, ' and presume
that it ‘follow[ed] the law.'” Id. at
1238 (citations omitted).
Claim One: The trial court's failure to dismiss jurors
argues that the trial court violated the Sixth and Fourteenth
Amendments when it failed to excuse for cause, on defense
motion, five potential jurors whose statements made it
“abundantly clear that, if they found the killing to be
intentional, they would vote for death”: Kenneth
Barwick, Herman Burleson, Charles Bruce, Gary Pitts, and
Harlan Rogers, Jr.. (Doc. 69 at 51). He also argues that the
trial court erred when it refused to excuse for cause, on
defense motion, two additional potential jurors with a
pro-prosecution bias: Martha May and Phyllis Jones. (Doc. 69
argues that Cromartie's challenges to Pitts and Rogers
are unexhausted. (Doc. 75 at 42). On direct appeal, Cromartie
argued that “[t]he trial court erroneously failed to
excuse a number of prospective jurors whose voir dire
responses demonstrated that they could not be fair and
impartial in this case . . . .” (Doc. 18-26 at 109). He
stated that prospective jurors Burleson, Bruce, Simmons,
Barwick, Harden, and Kornegay indicated “they could not
fairly consider a sentence less than death or mitigating
evidence” and, therefore, the trial court's failure
to excuse them violated his right to an impartial jury. (Doc.
18-26 at 114). Cromartie acknowledges he failed to argue in
his appellate brief that Pitts and Rogers should have been
excused. He argues, instead, that his general claim
regarding the trial court's failure to excuse potential
jurors is “exhausted and the voir dire of jurors Rogers
. . . and Pitts was part of the record considered by the
state courts in adjudicating this claim.” (Doc. 69 at
exhaust, Cromartie had to make the Georgia Supreme Court
aware of both the legal and factual bases for his claims.
See Kelley v. Sec'y, Dep't of Corr., 377
F.3d 1317, 1344 (11th Cir. 2004) (finding that “the
prohibition against raising nonexhausted claims in federal
court extends not only to broad legal theories of relief, but
also to the specific assertions of fact that might support
relief”). Cromartie's assertions about Pitts and
Rogers are “specific assertions of fact” he never
made before the Georgia Supreme Court. Id. Cromartie
did not exhaust these factually specific allegations by
arguing generally that the trial court erred for failing to
excuse biased jurors. See id. (finding that a
general claim of ineffective assistance of counsel presented
to the state courts does not exhaust specific instances of
ineffective assistance not presented to the state courts).
Nor did Cromartie exhaust his allegations related to Pitts
and Rogers simply because their voir dire “was part of
the record considered by the state courts in
adjudicating” his general claim that the trial court
erroneously failed to excuse jurors. (Doc. 69 at 52 n.5).
“[T]o preserve a claim . . . for federal review, the
habeas petitioner must assert his theory of relief and
transparently present the state courts” with the facts
that support relief. Kelley, 377 F.3d 1317 at 1344.
Cromartie failed to “transparently present” the
Georgia Supreme Court with any facts about Pitts and Rogers
to support his failure-to-excuse claim. Id.
reliance on Miller-El v. Dretke, 545 U.S. 231 (2005)
is misplaced. In that case, no one disputed that Miller-El
had fairly presented his Batson claim to the state
court. Id. at 241 n.2. The dissent questioned
whether the evidence Miller-El relied on in the federal
courts had been presented to the state courts. Id.
at 279 (Thomas, J., dissenting). The majority stated that the
evidence on which it “base[d] [its] result, was before
the state courts” and nothing in AEDPA prevented
Miller-El from presenting a different theory based on that
evidence. Id. at 241 n.2 (citations omitted).
Cromartie's case, the Respondent does dispute whether
Cromartie fairly presented his failure-to-excuse claims for
Pitts and Rogers to the state court. When Cromartie argues
that Pitts and Rogers should have been excused for cause, he
is not presenting a different theory or argument based on
evidence he presented to the Georgia Supreme Court. He is
presenting a new challenge to two jurors who he never
mentioned when his case was pending before the Georgia
Supreme Court. Just as “habeas petitioners may not
present particular factual instances of ineffective
assistance of counsel in their federal petitions that were
not first presented to the state courts, ” Cromartie
cannot present “particular factual instances” of
the trial court's failure to excuse for cause allegedly
pro-death penalty jurors that were not first presented to the
state court. Kelley, 377 F.3d at 1344 (quoting
Footman v. Singletary, 978 F.2d 1207, 1211 (11th
even assuming Cromartie fully exhausted all of his
failure-to-excuse claims, he is not entitled to habeas relief
because none of the potential jurors about which Cromartie
complains served on his jury. (Docs. 18-11 at 43-51; 75 at
36). Twelve jurors were empaneled before potential jurors May
and Jones were called and trial counsel used
peremptory strikes to excuse Barwick, Burleson, Bruce, Pitts,
and Rogers. (Doc. 18-11 at 42-51). Trial counsel did not have
to use all of their peremptory strikes,  and none of
the jurors who sat on Cromartie's jury had been
challenged for cause by trial counsel. (Docs. 18-1 at 205;
18-2 at 110, 141; 18-3 at 16, 61, 160-61; 18-4 at 62; 18-6 at
82, 98, 140-41, 155; 18-7 at 10, 64, 91, 127, 164-66; 18-11
at 11, 36-51, 100). Under United States v.
Martinez-Salazar, if a trial court errs in failing to
exclude a juror for cause and “the defendant elects to
cure such an error by exercising a peremptory challenge, and
is subsequently convicted by a jury on which no biased juror
sat, he has not been deprived of any rule-based or
constitutional right.” 528 U.S. 304, 307 (2000).
Therefore, even if the trial court erred in failing to remove
the jurors about which Cromartie complains, he was not
deprived of any “constitutional right” and this
claim must be denied. Id.
argues that Martinez-Salazar was wrongly decided
and, regardless, the Georgia Supreme Court's decision was
still contrary to clearly established federal law announced
in Witherspoon v. Illinois, 391 U.S. 510 (1968),
Wainwright v. Witt, 469 U.S. 412 (1985), and their
progeny. (Doc. 78 at 40). The Court disagrees. 28 U.S.C.
§ 2254(a) provides that a federal “court shall
entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” Under Martinez-Salazar, there
was no constitutional violation because none of the jurors
about which Cromartie complains were empaneled. Therefore,
even if the Court found, under § 2254(d), that the
Georgia Supreme Court's decision was contrary to, or an
unreasonable application of, Witherspoon or
Witt,  it could not grant habeas relief because
there was no violation of the federal Constitution, laws, or
Claim Two: The trial court's dismissal of Juror Kelly
Smith for cause
claims that Juror Kelly Smith should not have been excused
for cause. (Doc. 69 at 58-62). The record shows that the
trial court asked Smith if she was conscientiously opposed to
capital punishment and she answered, “No.” (Doc
18-3 at 129). The court questioned if she would automatically
vote to impose the death penalty regardless of the evidence
and the instructions given. (Doc. 18-3 at 130). Again, she
answered, “No.” (Doc. 18-3 at 130).
Next, the State examined Smith:
Q. Are you morally opposed to the imposition of the death
penalty under any circumstances?
A. I'm opposed, but, I, I just don't believe in it,
in the death penalty.
Q. The Judge asked you a minute ago were you conscientiously
opposed to the death penalty. Are you conscientiously opposed
to the death penalty?
A. Yes; I am opposed to the death penalty.
Q. Did you misunderstand the Judge's question a minute
A. I guess so; yes, sir.
Q His question was, I think if I may state what I think he
said was . . . are you conscientiously opposed to the death
Q. Okay, is that fixed in your mind?
Q. You could not give someone the death penalty?
A. No, sir.
Q. Under any circumstances?
A. No, sir.
Q. I believe the Judge - You, you, automatically would not
impose the death penalty.
A. No, sir.
Q No matter what the evidence or the facts were.
A. No, sir.
(Doc. 18-3 at 132-33).
Court intervened, stating it needed to “redo the
questions” to make sure Smith understood:
[T]he question that I have to determine at this time in my
mind is whether or not you would listen to the evidence, you
would follow the [c]ourt's instructions in regards to the
law concerning consideration of the three possible
punishments and, of course, make your determination based on
the evidence and the instructions of the law as opposed to a
position of at this time in your mind being automatically
and, and, as stated, irrevocably, meaning you would not
change your mind under any circumstances, automatically and
irrevocably opposed to the imposition of the death penalty.
Do you understand what I'm talking about, my question?
A. I think so.
THE COURT: If you were selected and if this case reached the
second phase, at this time, regardless of what the evidence
was and regardless of what the instructions of the law were
from the [c]ourt, is it my understanding that you could not
and would not consider imposition of the death penalty?
A. Yes, sir. Correct.
(Doc. 18-3 at 133-34).
counsel then questioned Smith. She indicated that she would
have no problems serving as a juror if the death penalty was
not at issue. (Doc. 18-3 at 135-36).
reiterated that she did not “agree with” the
death penalty and attributed her beliefs to her religious
training. (Doc. 18-3 at 136). Smith affirmed that she
“would listen” to all the evidence and
Q. And would you listen and follow the instructions of the,
of the [c]ourt, . . . before you made your decision about
what penalty would be appropriate?
A. Yes; I would listen.
Q. Okay. Now, you would do all of that. The problem is, would
you be able to vote for the death penalty if you thought it
A. I would have to think about that. Since I don't agree
with the death penalty it would take, you know, I would have
to take great consideration in that before I could agree with
it or hand that sentence out.
Q. If you thought it was appropriate though after you
considered it, and even though it's something that you
personally don't believe in, if you were called to serve
would you listen to the evidence-you said you would do that
A. Um-hum (affirmative).
Q. And you'd listen to the instructions of the [c]ourt.
You said you would do that?
A. Um-hum (affirmative).
Q. Could you, if you thought it was in accordance with the
evidence and the instructions of the [c]ourt, an appropriate
sentence, could you vote for the death penalty?
A. I, I don't know. To be honest, I don't know.
Q. Okay. That's a tough question.
A. It is.
Q. But at least you would consider the death penalty as part
of a sentencing option if you were called upon to do so?
A. I, I would listen to all of the information I was given.
Q. And would you do your very best to be fair?
A. Yes, sir.
Q. And would you do your very best to make the right decision
based upon the evidence and the instructions of the [c]ourt?
A. Yes, sir.
(Doc. 18-3 at 138-39).
The trial court again questioned Smith:
THE COURT: Ms. Smith, based on your religious belief, do you
feel like it would be difficult for you to lay your personal
feelings aside and follow the law in regards to the
instructions given you by the [c]ourt?
A. Do I think it would be difficult?
THE COURT: Yes, ma'am.
A. No; not if that was the instructions I was given I
don't think it would be. It's what I believe.
THE COURT: I understand that.
A. But given the evidence that I would be given I would
listen and try to follow the instructions.
THE COURT: I guess we get back full circle to where we were.
At this time, regardless of the evidence and the
[c]ourt's instructions, do you feel that you would be
able to vote to impose the death penalty in this particular
A. I'm sorry. I, I didn't understand.
THE COURT: At this time, are you in a position, frame of
mind, your views and opinions on capital punishment, the
death penalty, are those such at this time that you would
automatically vote against the imposition of the death
penalty, again regardless of what the evidence showed and
what the law was?
A. At this time?
THE COURT: Yes, ma'am.
A. Yes, sir.
(Doc. 18-3 at 140)
State moved to excuse Smith for cause. (Doc. 18-3 at 141).
Trial counsel objected, pointing out that the trial court
allowed allegedly pro-death penalty juror Barwick to remain
on the panel. (Doc. 18-3 at 141). The trial court
explained its decision to excuse Smith for cause:
Of course, my interpretation of, I believe it's Mr.
Kenneth Barwick's answers to the voir dire questions, not
only his verbalization but his demeanor, my interpretation of
his responses are somewhat different from Ms. Smith's
responses. Ms. Smith may have equivocated a very small amount
on one or two, possibly two questions propounded by the
But, I think taking all of her responses into consideration
in the voir dire examination, at this time she'd be
unable to apply the law based upon her religious views. She
holds a strong personal aversion to the death penalty and is
very uncertain as to whether or not she could actually impose
such. And I think she would be unable to apply the law as
opposed to following her personal beliefs in this particular
Therefore, I do find as a fact and determine that she should
be and she is excused because of her views on capital
punishment. I feel that her views would prevent,
substantially impair her in the performance of her duties as
a juror in accordance with the instructions of the [c]ourt
and the oath that she would undertake as a juror in this
(Doc. 18-3 at 142).
direct appeal, Cromartie argued Smith should not have been
excused for cause, and the Georgia Supreme Court found:
The trial court did not err by excusing prospective Juror
Smith for cause due to her inability to consider a death
sentence. “The proper standard for determining the
disqualification of a prospective juror based upon his views
on capital punishment ‘is whether the juror's views
would “prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions
and his oath.”'” Although she answered
several questions equivocally, Juror Smith also repeatedly
and firmly stated that she could not vote to impose a death
sentence under any circumstances. The trial court was
authorized to excuse her for cause.
Cromartie, 270 Ga. at 783, 514 S.E.2d at 210-11
argues this decision was based on an unreasonable
determination of the facts. (Doc. 69 at 60). He alleges the
Georgia Supreme Court's factual finding that Smith
“repeatedly and firmly stated that she could not vote
to impose a death sentence under any circumstances” was
unreasonable in light of the evidence presented for two
reasons. Cromartie, 279 Ga. at 783, 514 S.E.2d at
211. First, Smith stated she would “give the death
penalty great consideration.” (Doc. 69 at 60-61).
According to Cromartie, Smith's anti-capital punishment
protestations were no more pronounced than the pro-death
penalty position taken by other prospective jurors who the
trial court refused to excuse for cause. (Doc. 69 at 58 n.7).
Second, when Smith ...