United States District Court, M.D. Georgia, Valdosta Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
Jefferson Cromartie is scheduled to be executed on October
30, 2019 for the April 10, 1994 murder of store
clerk, Richard Slysz. Cromartie v. State, 270 Ga.
780, 781 n.1, 514 S.E.2d 205, 209 n.1 (1999). He has filed a
42 U.S.C. § 1983 actionin which he raises due process and
access to courts claims stemming from the state court's
denial of his extraordinary motion for new trial and request
for DNA testing pursuant to O.C.G.A. § 5-5-41(c). Doc.
1. Specifically, Cromartie alleges his due process rights
have been violated because O.C.G.A. § 5-5-41(c), as
construed by the Georgia Supreme Court, violates fundamental
fairness. (Doc. 4 at 19). He also argues that Georgia's
restrictive procedure for obtaining access to DNA testing
under O.C.G.A. § 5-5-41(c), and the Georgia Supreme
Court's interpretation thereof, deprive him of his
fundamental right to access the courts. (Doc. 1 at 23).
requests “[a] declaratory judgment that O.C.G.A. §
5-5-41(c), as applied by the Georgia Supreme Court, is
unconstitutional”; “[a] preliminary and permanent
injunction requiring Defendants to produce and release for
DNA testing” ten various items of evidence; and (3)
“[a] preliminary and permanent injunction prohibiting
Defendants from executing [him] until they can do so in a way
that does not violate his rights.” Doc. 1 at 25-26.
also moved to stay his execution pending disposition of his
42 U.S.C. § 1983 action. Doc. 6.
have moved to dismiss Cromartie's complaint. Doc. 9.
Cromartie has responded to the motion to dismiss (Doc. 10)
and filed an amended complaint (Doc. 11).
FACTUAL 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.
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, which was denied following an
evidentiary hearing. Doc. 1 at 11. The Georgia Supreme Court
denied Cromartie's certificate of probable cause
application and the United States Supreme Court denied his
petition for writ of certiorari. Cromartie v.
Chatman, 572 U.S. 1064 (2014).
filed a 28 U.S.C. § 2254 petition in this Court on March
20, 2014. Cromartie v. Warden, Georgia Diagnostic and
Classification Prison, 7:14-cv-39-MTT (M.D. Ga.). On
March 31, 2017, the Court denied habeas relief and both this
Court and the Eleventh Circuit denied a certificate of
appealability. Id. at Doc. 81; Cromartie v. GDCP
Warden, No. 17-12627 (11th Cir.). On December 3, 2018,
the United States Supreme Court denied certiorari.
Cromartie v. Sellers, 2018 WL 4191087, at *1 (U.S.
December 28, 2018, Cromartie filed an Extraordinary Motion
for New Trial and Postconviction DNA Testing and a Motion for
Preservation of Evidence in the Thomas County Superior Court.
Doc. 1 at 12. Following a June 24, 2019 evidentiary hearing,
the court denied Cromartie's motion for DNA testing and
new trial on September 16, 2019. Docs. 1-2; 1-3; 1-4; 1-5;
filed an application for discretionary appeal to the Georgia
Supreme Court and a motion to stay his execution.
Cromartie v. State, S20D0330 (Ga. Sup. Ct.) That
Court denied both the application and motion to stay on
October 25, 2019. Id.
Motion to Dismiss ...