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Cromartie v. Warden, Georgia Diagnostic and Classification Prison

United States District Court, M.D. Georgia, Valdosta Division

March 31, 2017

WARDEN, Georgia Diagnostic and Classification Prison, Respondent.



         RAY JEFFERSON CROMARTIE was sentenced to death for the murder of Richard Slysz. For the reasons discussed below, the Court denies habeas relief.[1]


         The 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).

         B. Procedural history

         On 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.

         Cromartie filed a motion for new trial, and a hearing was held on March 12, 1998. (Doc. 18-24).[2] 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).

         Cromartie 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. 23-41).

         Cromartie 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).

         Cromartie 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).

         Cromartie 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.”[3] (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)

         Cromartie, now represented by the Federal Community Defender Office for the Eastern District of Pennsylvania, [4] 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.[5] (Docs. 76 to 80).

         Both parties have now briefed all outstanding issues.


         A. Exhaustion and procedural default

         Procedural 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).

         There 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) (citations omitted).

         B. Claims that were adjudicated on the merits in the state courts

         The 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).

         “The ‘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, 15-16 (2003)).

         A state 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).

         Pursuant 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. § 2254(e)(1).

         C. The relevant state court decisions

         When 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 98, 102).

         The state habeas court's final orders denying state habeas relief (Doc. 23-37; 24-9) are relevant in two respects.[6] 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.

         Second, “[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.'”[7] Id. at 1238 (citations omitted).


         A. Claim One: The trial court's failure to dismiss jurors for cause

         Cromartie 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 at 53-54).

         Respondent 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[8] 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.[9] 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 52 n.5).

         To 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.

         Cromartie's 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).

         In 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 Cir. 1992)).

         But, 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[10] 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, [11] 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.

         Cromartie 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, [12] it could not grant habeas relief because there was no violation of the federal Constitution, laws, or treaties.

         B. Claim Two: The trial court's dismissal of Juror Kelly Smith for cause

         Cromartie 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 ago?
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 penalty?
A. Yes.
Q. Okay, is that fixed in your mind?
A. Yes.
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).

         The 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).

         Trial 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).

         She 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 instructions:

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 was appropriate?
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 matter?
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)

         The 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.[13] (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 Defense.
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 matter.
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 case.

(Doc. 18-3 at 142).

         On 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 (citations omitted).

         Cromartie 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 ...

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