CROMARTIE v. SHEALY et al

Filing 12

ORDER GRANTING #2 Motion for Leave to Proceed in forma pauperis; DENYING #6 Motion to Stay; and GRANTING #9 Motion to Dismiss. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/28/2019. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RAY JEFFERSON CROMARTIE,
Plaintiff,
VS.
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.
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CIVIL ACTION NO. 7:19-CV-181 (MTT)

ORDER
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

1

On October 16, 2019, the Superior Court of Thomas County entered an order setting the seven-day
window during which the execution of Ray Jefferson Cromartie may occur to begin at noon, October 30,
2019 and to end seven days later at noon on November 6, 2019. Docs. 1; 8; Oct. 16, 2019 Press
Release, Office of the Att’y Gen., http://law.georgia.gov/press-releases.

2

Cromartie also moved for leave to proceed without prepayment of the filing fee or security therefor
pursuant to 28 U.S.C. § 1915(a). Doc. 2. As it appears Cromartie is unable to pay the cost of
commencing this action, his application to proceed in forma pauperis is hereby GRANTED.

1

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
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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).

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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
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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 Standard of Review
The Federal Rules of Civil Procedure require that a pleading contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must
contain sufficient factual matter to “‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are
accepted as true, and the reasonable inferences therefrom are construed in the light
most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261
(11th Cir. 2006) (internal quotation marks and citation omitted). However, “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
“[C]onclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd., 297 F.3d
at 1188. The complaint must “give the defendant fair notice of what the ... claim is and
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the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks
and citation omitted). Where there are dispositive issues of law, a court may dismiss a
claim regardless of the alleged facts. Marshall Cnty. Bd. of Educ. v. Marshall Cnty.
Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
In order to state a claim for relief under § 1983, a plaintiff must allege that: (1) an
act or omission deprived him of a right, privilege, or immunity secured by the
Constitution or a statute of the United States; and (2) the act or omission was committed
by a person acting under color of state law. Hale v. Tallapoosa Cty., 50 F.3d 1579,
1581 (11th Cir. 1995). If a litigant cannot satisfy these requirements, or fails to provide
factual allegations in support of his claim or claims, then the complaint is subject to
dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming
the district court’s dismissal of a § 1983 complaint because the plaintiff’s factual
allegations were insufficient to support the alleged constitutional violation).
B. Prerequisites for Injunctive Relief
A court may grant declaratory or injunctive relief, including a stay of execution,
only if the moving party establishes that: “(1) he has a substantial likelihood of success
on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the
stay would not substantially harm the other litigant; and (4) if issued, the injunction
would not be adverse to the public interest.” Price v. Comm’r, Dep’t of Corr., 920 F.3d
1317, 1323 (11th Cir. 2019) (citation omitted). “The ‘first and most important question’
regarding a stay of execution is whether the [plaintiff] is substantially likely to succeed
on the merits of his claims.’” Id. (citation omitted).

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C. The Court’s Jurisdiction
Cromartie alleges that the Defendants’ refusal to release the biological evidence
for DNA testing violates his right to due process and right to access the courts. 3 Doc. 1
at 4. Generally, a 42 U.S.C. § 1983 complaint is the proper vehicle for Cromartie to
raise his due process and access to courts challenges to Georgia’s postconviction DNA
statute, O.C.G.A. § 5-5-41(c). Skinner v. Switzer, 562 U.S. 521, 525 (2011).
Cromartie “challenges the constitutionality of § 5-5-41(c) both on its face and as
applied by the Georgia courts.” Doc. 1 at 4. Cromartie’s “as applied” challenge
“attacks the state court’s application of [Georgia’s] DNA access procedures to the facts
of his case.” Alvarez v. Att’y Gen. for Fla., 679 F.3d 1257, 1263 (11th Cir. 2012). The
success of his “as applied” challenge “would ‘effectively nullify’ the state court’s
judgment.” Id. at 1264 (citation omitted). In other words, his “as applied” challenge
“would succeed ‘only to the extent that the state court wrongly decided’” to disallow
DNA testing. Id. (citation omitted). Thus, his “as applied” challenge is barred by the
Rooker/Feldman 4 doctrine. Id. (finding that an “as applied” challenge to Florida’s
postconviction DNA statute was barred by Rooker-Feldman because (1) the state court
rendered judgment before the federal action was commenced; (2) the plaintiff in the
federal action was the state-court losing party; (3) the plaintiff complained of injuries

3

Cromartie also alleges that the Defendants’ refusal to allow DNA testing violates his Eighth Amendment
right to be free from cruel and unusual punishment. Doc. 1 at 4. Beyond this conclusory allegation,
however, he provides no further support for this argument. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297
F.3d 1182, 1188 (11th Cir. 2002) (finding dismissal appropriate when only conclusory allegations
presented).

4 The Rooker-Feldman doctrine derives from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). “The doctrine is a jurisdictional
rule that precludes the lower federal courts from reviewing state court judgments.” Alvarez, 679 F.3d at
1262 (citation omitted).

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caused by the state court’s judgment; and (4) the plaintiff’s claim invited the federal
court to review and reject the state court’s judgment).
Rooker-Feldman does not, however, bar the federal court from exercising subject
matter jurisdiction over Cromartie’s challenge to the facial constitutionality of O.C.G.A. §
5-5-41(c). Skinner, 562 U.S. at 530-32. Thus, the Court may consider Cromartie’s
arguments to the extent he generally “challenges, as denying him procedural due
process, [Georgia’s] postconviction DNA statue ‘as construed’ by the [Georgia] courts.”
Id. at 530.
D. Failure to Name Proper Parties
Cromartie originally named Bradfield Shealy, District Attorney for the Southern
Judicial Circuit, and Randa Wharton, Clerk of the Superior Court of Thomas County, as
the Defendants in his 42 U.S.C. § 1983 action. (Doc. 1). In its motion to dismiss,
Defendants alleged that while Shealy and Wharton may be the proper parties for his §
1983 due process and access to courts claims, neither has custody of Cromartie or the
authority to forestall his execution (Doc. 6).
O.C.G.A. § 17-10-38 (b) provides that the trial court must direct the “defendant to
be delivered to the Department of Corrections for execution of the death sentence . . . .”
The Superior Court of Thomas County has issued an execution order for Cromartie.
Oct. 16, 2019 Press Release, Office of the Att’y Gen., http://law.georgia.gov/pressreleases. Thus, the Department of Corrections is the only party that can be enjoined to
prevent his execution. Accordingly, for his motion to stay execution, Cromartie
originally failed to join the proper parties.
In response to the Defendants’ motion to dismiss, Cromartie filed an amended
8

complaint naming both the Georgia Department of Corrections and Benjamin Ford,
Warden of the Georgia Diagnostic and Classification Prison. Doc. 11.
E. Inexcusable Delay
The Defendants do not address the consequences of Cromartie’s delay in
seeking relief in this Court, 5 but the Court must. The Supreme Court has instructed
courts to consider “the extent to which the inmate has delayed unnecessarily in
bringing” an action before granting a stay. Nelson v. Campbell, 541 U.S. 637, 649-50
(2004).
Both Cromartie’s § 1983 action (Doc. 1) and his motion to stay execution (Doc. 6)
were filed within days of his October 30, 2019 scheduled execution. In his § 1983
action, Cromartie asks the Court to issue 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 26; Rutherford v. Crosby, 438 F.3d 1087, 1092 (11th Cir.
2006) (stating that when a plaintiff’s “execution is imminent, there is no practical
difference between denying a stay on equitable grounds and denying injunctive relief on
equitable grounds in a § 1983 lawsuit.), vacated on other grounds, Rutherford v.
McDonough, 547 U.S. 1204 (2006). Of course, Cromartie “is not entitled to a stay of
execution ‘as a matter of course’ simply because he brought a § 1983 claim.” Long v.
Sec’y, Dep’t of Corr., 924 F.3d 1171, 1176 (11th Cir. 2019) (citations omitted).
Before it can grant Cromartie’s preliminary injunction or stay, the Court “must
‘consider not only the likelihood of success on the merits and the relative harms to the

5

This is a bit odd because the Superior Court of Thomas County relied, in part, on Cromartie’s
inexcusable delay when it denied his motion for new trial and request for DNA testing. Doc. 1-2 at 29-35.

9

parties, but also the extent to which the inmate has delayed unnecessarily in bringing
the claim.’” Long, 924 F.3d at 1176 (quoting Nelson, 541 U.S. at 649-50). “There is a
‘strong equitable presumption against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the merits without requiring entry of a
stay.’” Id. (quoting Nelson, 541 U.S. at 650). According to the Supreme Court,
[c]ourts should police carefully against attempts to use such challenges as
tools to interpose unjustified delay. Last-minute stays should be the
extreme exception, not the norm, and the last-minute nature of an
application that could have been brought earlier, or an applicant’s attempt
at manipulation, may be grounds for denial of a stay.
Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019); see also Dunn v. Price, 139 S. Ct.
1312, 1312 (2019) (citing Gomez v. United States, 503 U.S. 653, 654 (1992) (vacating
stay of execution because of the “last-minute nature of” the application).
Cromartie’s case is not an “extreme exception” that warrants a stay. Bucklew,
139 S. Ct. at 1134. Cromartie raises due process and access to courts claims
stemming from the state court’s September 16, 2019 denial of his extraordinary motion
for new trial and request for DNA testing. Cromartie filed his extraordinary motion for
new trial and motion for DNA testing in the Superior Court of Thomas County on
December 28, 2018, more than twenty-one years after he was convicted. Doc. 1 at 12;
Cromartie, 270 Ga. at 781 n.1, 514 S.E.2d at 209 n.1.
Cromartie has been represented by counsel throughout his criminal proceedings.
Doc. 1-2 at 174-75. Current counsel was appointed by this Court in 2014. Id. at 169.
All of the evidence that Cromartie now seeks to test existed and was known to counsel
prior to his trial. See Doc. 1-2 at 183-86. DNA test results have been admissible in
Georgia courts since 1990, seven years before Cromartie’s trial. Caldwell v. State, 260
10

Ga. 278, 393 S.E.2d 436 (1995). Nevertheless, Cromartie apparently did not seek
DNA testing pretrial. See Doc. 1-2 at 31. Additionally, although Georgia’s post-trial
DNA statute, O.C.G.A. § 5-5-41, was enacted in 2003, Cromartie did not pursue DNA
testing until fifteen years later.
Cromartie alleges in his complaint “that DNA testing has changed dramatically
over the years.” Doc. 1 at 14. The Court agrees. But Cromartie’s complaint also
reveals that the DNA testing he wants has been available for years. For example, he
says that “touch DNA (the ability to obtain a DNA profile from a very small amount of
skin cells left simply by touching an item with one’s bare hands or other skin)” was
available as early as 2006 or 2007 and was further refined in 2010 and 2011—at least
seven years before he filed his state action seeking DNA testing. Doc. 1 at 15. Even
the “probabilistic genotyping,” which “significantly enhances the ability to evaluate
complex DNA mixtures—samples containing DNA from multiple people”—has been
available for a least a “couple of years” prior to Cromartie filing his request for DNA
testing. Doc. 1 at 15.
Furthermore, it seems that Cromartie’s challenge to the facial constitutionality of
Georgia’s DNA statute could have been made at any time after the enactment of the
statute in 2003. See Dist. Att’y Office for the Third Judicial Dist. v. Osborne, 557 U.S.
52, (2009) (finding that a plaintiff need not “exhaust state-law remedies” before filing a
42 U.S.C. § 1983 action but plaintiff could not complain that “procedures [that] are
adequate on their face” do not work in practice if he had not filed a state action);
Cunningham v. Dist. Att’y Office for Escambia Cty., 592 F.3d 1237, 1274 (11th Cir.
2010) (citation omitted) (stating “where state procedures for postconviction relief [are]
11

inadequate on their face,” a plaintiff’s “failure to properly pursue state-law remedies [is]
excused”).
In short, Cromartie’s “need for a stay of execution is directly attributable to his
own failure to” timely seek DNA testing in the state courts or to timely challenge the
facial constitutionality of Georgia’s DNA access procedures. In re Hutcherson, 468
F.3d 747, 749-50 (11th Cir. 2006). Thus, his delay provides additional grounds for
denying Cromartie’s motion to stay execution (Doc. 6) and his request for “preliminary
and permanent injunction prohibiting Defendants from executing” him (Doc. 1 at 26).
See Dunn v. Ray, 139 S. Ct. 661, 661 (2019) (quoting Gomez, 503 U.S. at 654 (1992)
(vacating stay granted by Eleventh Circuit because of the “‘last-minute nature of [the]
application to stay execution’”); Bucklew, 139 S. Ct. at 1134 (citations omitted) (affirming
Eighth Circuit’s denial of a stay and stating that “‘last-minute nature of an application’”
could be “‘grounds for denial of stay’”); Price, 139 S. Ct. at 1312 (quoting Gomez, 503
U.S. at 654) (vacating stay granted by Eleventh Circuit due to the “‘last minute nature of
[the] application to stay execution’”).
F. Challenges to O.C.G.A. § 5-5-41
i.

Due Process Claim

There is no “freestanding right to access DNA evidence.” Osborne, 557 U.S. at
73. It is Cromartie’s “burden to demonstrate the inadequacy of [Georgia’s] procedures
for postconviction relief.” Cunningham, 592 F.3d at 1262 (citation omitted). The
“State’s process for postconviction relief is constitutionally adequate unless it ‘offends
some principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental,’ or ‘transgresses any recognized principle of fundamental
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fairness in operation.’” Id. at 1260 (citation omitted). Put simply, O.C.G.A. § 5-5-41(c)
is constitutional so long as it comports with fundamental fairness. This Court’s ability to
interfere with a State’s procedures for postconviction relief is limited. The Court “may
upset [Georgia’s] postconviction relief procedures only if they are fundamentally
inadequate to vindicate the substantive rights provided.” Osborne, 557 U.S. at 69.
Cromartie argues that “[s]ection 5-5-41(c), as construed by the Georgia Supreme
Court violates fundamental fairness in at least two ways.” Doc. 1 at 19. First, he
argues that the requirements that a defendant show that the request for “DNA testing
was not made for the purpose of delay, § 5-5-41(c)(7)(D),” and that his request for a
new trial was made diligently or “as soon as possible” under § 5-5-41(a) is
fundamentally unfair. 6 Doc. 1 at 19-20. Second, he argues that the Georgia Supreme
Court’s interpretation of O.C.G.A. § 5-5-41(c)(3)(D) 7, which requires a court to find a
reasonable probability of acquittal before DNA testing can be ordered, is fundamentally
unfair because it precludes testing when the evidence of guilt presented at trial was
overwhelming. Doc. 1 at 21 (citing Crawford v. State, 278 Ga. 95, 97, 597 S.E.2d 403,
405 (2004)).
Both arguments are foreclosed by Osborne, in which the Supreme Court found
“nothing inadequate about the procedures Alaska has provided to vindicate its state

6

O.C.G.A. § 5-5-41(c)(7)(D) provides that the court shall grant the motion for DNA testing if it determines,
inter alia, that “the motion is not made for the purpose of delay.” O.C.G.A. § 5-5-41(a) provides that
“[w]hen a motion for new trial is made after the expiration of a 30 day period from entry of judgment, some
good reason must be shown why the motion was not made during such period. . . .”
7

O.C.G.A. § 5-5-41(d)(3)(D) provides that a motion for DNA testing “shall show or provide” that ‘[t]he
requested DNA testing would raise a reasonable probability that the [plaintiff] would have been acquitted
if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the
case.”

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right to postconviction relief . . . .” 557 U.S. at 69. The Court noted that Alaska’s
procedures for postconviction DNA testing, “are not without limits.” Id. at 70. Alaska’s
procedures, similar to Georgia’s, require the evidence to be “newly available,” “diligently
pursued,” 8 and “sufficiently material.”9 Id. The Court held the procedures, as limited
by these requirements, “are not inconsistent with the ‘traditions and conscience of our
people’ or with ‘any recognized principle of fundamental fairness.’” Id. (citations
omitted); See Cunningham, 592 F.3d at 1263 (upholding district court’s dismissal of
complaint, citing Osborne, and noting that a State’s “procedures will pass muster if they
compare favorably with Alaska’s”). Cromartie cites no authority for the proposition that
procedures and limitations found in O.C.G.A. § 5-5-41, as interpreted by the Georgia

8

Cromartie alleges that the ‘[b]y adding the diligence requirement as it has been construed, the Georgia
Supreme Court has placed an arbitrary and fundamentally unfair burden that is almost impossible for any
applicant to meet.” Doc. 10 at 15. It seems that diligence requirements are fairly standard in statutes
addressing postconviction relief. Osborne, 557 U.S. at 69. Georgia simply requires that a defendant
seeking an extraordinary motion for new trial “act without delay.” Drane v. State, 291 Ga. 298, 304, 728
S.E.2d 679, 683 (2012) (citation omitted). “‘The obvious reason for this requirement is that litigation must
come to an end.’” Id. (citation omitted). There is nothing fundamentally unfair in requiring a party to “act
without delay” in seeking DNA testing of evidence that was available pretrial. Id. This “requirement
ensures that cases are litigated when the evidence is more readily available to both the defendant and
the State, which fosters the truth-seeking process.” Id.
9 Citing Crawford, Cromartie argues that the Georgia Supreme Court has interpreted O.C.G.A. 5-5-41(c)
to preclude DNA testing when the evidence presented at trial was “‘overwhelming.’” 278 Ga. at 97, 597
S.E.2d at 405. According to Cromartie, “this requirement has resulted in a totally subjective review of the
trial evidence, with no meaningful assessment of the weaknesses in that evidence or the manner in which
DNA test results could offset the trial evidence and change the entire evidentiary picture.” Doc. 10 at 16.
Just as with the diligence requirement, it seems “materiality” requirements are commonplace in
postconviction DNA statutes. Osborne, 557 U.S. at 69. On its face O.C.G.A. § 5-5-41(c)(3)(D) requires
the state court to consider “in light of all the evidence in the case,” whether “DNA testing would raise a
reasonable probability that the [plaintiff] would have been acquitted if the results of DNA testing had been
available at the time of conviction.” This is exactly the analysis undertaken by the Georgia Supreme
Court in Crawford when it found that, even assuming favorable test results came from DNA tests, the
evidence tested “related only peripherally, if at all, to [Crawford’s] case, and there was, therefore, not a
reasonable likelihood of a different outcome at trial, especially given the overwhelming evidence of
Crawford’s guilt presented at trial. Id. at 98, 597 S.E.2d at 406. This interpretation in no way “effectively
precludes testing to establish innocence.” Doc. 10 at 16. It is merely a materiality requirement, which
the Supreme Court has found constitutional. Osborne, 557 U.S. at 69.

14

Supreme Court, have been found to violate fundamental fairness. 10
ii.

Access to Courts Claim

Cromartie argues that “Georgia’s restrictive procedures 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 the fundamental right to access the courts. Doc.
1 at 23. This claim is foreclosed by binding Eleventh Circuit precedent. See Alvarez,
679 F.3d at 1265-66; Cunningham, 592 F.3d at 1271-73.
To establish a violation of the constitutional right of access to the courts under
the Due Process Clause, “‘a prisoner must show an actual injury.’” Alvarez, 679 F.3d
at 1265. To show actual injury, Cromartie must have “‘a colorable underlying claim for
which he seeks relief.’” Alvarez, 679 F.3d at 1266. Cromartie’s right of access to the
courts claim is premised on his procedural due process challenge to O.C.G.A. § 5-541(c). Having concluded that Georgia’s postconviction procedure for DNA testing is

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Just as the Court was finalizing its Order, Cromartie filed a last-minute brief and an amended
complaint. Docs. 10; 11. In the brief, he further explains his facial challenge to Georgia’s postconviction
DNA statute. Doc. 10 at 11-22. But, much of Cromartie’s brief contains “as applied” due process
challenges, in which Cromartie attacks the state court’s denial of his motion for DNA testing. See Doc.
10 at 14 (“As established by Dr. Libby’s unchallenged testimony, DNA testing . . . was not available at the
time of trial . . . .); Doc. 10 at 16 (“The undisputed evidence presented at the evidentiary hearing
demonstrated that DNA testing may well be powerfully exculpatory . . . .”); Doc. 10 at 19 (“Regarding the
fired cartridge casings . . . DNA technology have made it possible to lift DNA evidence . . . .). As
explained above, these “as applied” challenges are not properly before the Court. Also, Cromartie relies
heavily on a Wilson v. Marshall, 2018 WL 5074689 (M.D. Ala. 2018), in which the plaintiff’s allegations
that called into question the facial constitutionality of Alabama’s postconviction statute survived a motion
to dismiss. Id. at *14. That case is both non-binding and distinguishable. The Court found Alabama’s
post-conviction DNA statute created a “Catch 22” because it required the plaintiff to demonstrate that the
DNA evidence was in good enough condition to yield reliable and accurate test result, without allowing
the plaintiff access to the evidence. Id. Georgia’s statute creates no such dilemma. Additionally, the
Alabama statute at issue provided that the state court “may order forensic DNA testing” if certain
conditions were met. Id. (citations omitted) (emphasis added). The district court found this “permissive”
language “may provide no guarantee of any due process at all for one who qualifies.” Id. In contrast,
Georgia’s statute contains mandatory language: “The court shall grant the motion for DNA testing if it
determines that the [plaintiff] has met the requirements. . . .” O.C.G.A. § 5-5-41(c)(7). The plaintiff in
Wilson survived a motion to dismiss because, on its face, the Alabama statute did “not actually guarantee
any process by which a [plaintiff] could be entitled to DNA testing.” Id. at *15. That simply is not the
case with Georgia’s statute.

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consistent with due process, “it follows that it does not improperly interfere with
[Cromartie’s] right of access to the courts.” Cunningham, 592 F.3d at 1272.

This

claim must, therefore, be dismissed.
III. CONCLUSION
Cromartie’s 42 U.S.C. § 1983 action is dismissed for failure to state a claim. His
requests for declaratory and injunctive relief, including a stay, are denied due to his
unjustified delay in filing this action, and because he has not shown a substantial
likelihood of success on the merits.
For these reasons, the Court GRANTS Defendants’ motion to dismiss (Doc. 9)
and DENIES Plaintiff’s motion to stay execution (Doc. 6).
SO ORDERED, this 28th day of October, 2019.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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