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Cromartie v. Shealy

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

October 28, 2019

RAY JEFFERSON CROMARTIE, Plaintiff,
v.
BRADFIELD SHEALY, Southern Judicial Circuit District Attorney; RANDA WHARTON, Clerk of Superior Court Thomas County, GEORGIA DEPARTMENT OF CORRECTIONS; BENJAMIN FORD, Warden, Georgia Diagnostic and Classification Prison, Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT

         Ray Jefferson Cromartie is scheduled to be executed on October 30, 2019[1] 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 action[2]in 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).

         Cromartie 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.

         Cromartie also moved to stay his execution pending disposition of his 42 U.S.C. § 1983 action. Doc. 6.

         Defendants 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).

         I. FACTUAL AND PROCEDURAL HISTORY A. Facts

         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.

         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, 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).

         Cromartie 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. 2018).

         On 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; 1-6; 1-7.

         Cromartie 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.

         II. ANALYSIS

         A. Motion to Dismiss ...


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