RAY JEFFERSON CROMARTIE v. BRADFIELD SHEALY, RANDA WHARTON, GEORGIA DEPARTMENT OF CORRECTIONS, and GDCP WARDEN
No. 19-14268
United States Court of Appeals for the Eleventh Circuit
October 30, 2019
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
D.C. Docket No. 7:19-cv-00181-MTT
Appeal from the United States District Court for the Middle District of Georgia
Before ED CARNES, Chief Judge, MARTIN, and ROSENBAUM, Circuit Judges.
Ray Jefferson Cromartie was convicted of murdering Richard Slysz during an armed robbery committed more than twenty-five years ago. As punishment for that crime, he is scheduled to be executed on October 30, 2019, at 7:00 p.m. On October 22, 2019, he filed a
On October 29, the district court issued a cogent opinion dismissing Cromartie‘s complaint and denying his motion for a stay of execution. Cromartie appeals those rulings and asks this Court to issue an emergency stay of execution pending the resolution of his appeal. We affirm the district court and deny his emergency motion for a stay of execution as moot.
I. FACTS AND PROCEDURAL HISTORY
A. Cromartie‘s Crimes
On April 7, 1994, Cromartie went to the Madison Street Deli in Thomasville, Georgia. Cromartie v. State, 514 S.E.2d 205, 209 (Ga. 1999). He was carrying a .25 caliber pistol that he had borrowed earlier that day from his cousin, Gary Young. Id. He walked behind the counter to where the store clerk, Dan Wilson, was washing dishes, and shot him in the face. Id. After trying and failing to open the cash register, he left empty-handed. Id. Wilson suffered a severed carotid artery but fortunately he survived. Id. The next store clerk Cromartie shot would not be so fortunate.
The following day Cromartie asked Young and Carnell Cooksey if they saw the news. Id. He told Young that he had shot Wilson. Id. He also asked Cooksey if he was “down with the 187,” which meant robbery, and he talked about a Junior Food Store with “one clerk in the store and they didn‘t have no camera.” Id. Cooksey said he was not interested. Doc. 1-2 at 13.1
Cromartie found some people who were. On April 10, Thaddeus Lucas agreed to drive Cromartie and Corey Clark to a store so they could steal beer. Cromartie, 514 S.E.2d at 209. While in the car, Cromartie had Lucas drive past the closest open store and go instead to the Junior Food Store. Id. Once they were there, Cromartie instructed Lucas to park at a nearby apartment complex and wait while he and Clark went into the store. Doc. 1-2 at 15.
Richard Slysz was the clerk on duty and when the two entered the store he was
As Slysz lay dying or dead, Cromartie and Clark tried and failed to open the cash register. Id. They fled, but not before Cromartie grabbed two 12-packs of Budweiser beer. Id. A clerk in a convenience store across the street heard the shots and saw two men fitting the general descriptions of Cromartie and Clark run from the store. Id. at 209–10. Cromartie was carrying the beer. Id. at 210. While they fled, one of the packs of beer tore open outside the store and some of the cans fell to the ground. Id. A passing motorist saw the two men run from the store and appear to drop something. Id. Clark would later testify that he gathered all but two of the cans before he and Cromartie got into Lucas’ car. Doc. 1-2 at 16.
Cooksey testified that when Cromartie and the other two men met up with him after the shooting, they had a muddy pack of beer. Cromartie, 514 S.E.2d at 210. He recounted how Cromartie boasted about shooting the clerk twice. Id. In a muddy field next to the store the police found a portion of a Budweiser beer carton, two cans of beer, and a shoeprint. Doc. 1-2 at 17. It was identified as a possible match for Cromartie‘s shoes, but not for Young‘s, Clark‘s, or Lucas‘. Id. The beer carton had Cromartie‘s thumb print on it. Id. A police canine unit tracked Cromartie‘s and Clark‘s scents to the nearby apartment complex where Cromartie had told Lucas to wait. Id. And a firearms expert determined that the .25 caliber pistol that Cromartie had borrowed from Young fired the bullets that had seriously wounded Wilson and killed Slysz. Cromartie, 514 S.E.2d at 210.
B. Criminal Trial and Direct Appeal
Cromartie was indicted in Thomas County, Georgia on one count of malice murder, one count of armed robbery, one count of aggravated battery, one count of aggravated assault, and four counts of possessing a firearm during the commission of a crime. Id. at 209 n.1. Young, Cooksey, Lucas, and Clark testified as prosecution witnesses at Cromartie‘s trial.2 Id. at 210, 213; Cromartie v. Georgia, No. 2000-v-295, slip op. at 53–77 (Butts Cty. Sup. Ct. Oct. 9, 2012). On September 26, 1997, the jury found him guilty of all counts, and five days later it recommended a sentence of death. Cromartie, 514 S.E.2d at 209 n.1. The trial court sentenced Cromartie to death for the malice murder, to life imprisonment for the armed robbery, and for his
The Georgia Supreme Court affirmed Cromartie‘s convictions and sentences on March 8, 1999. Id. at 215. He filed a motion for reconsideration, which the court denied. Notice of Filing, Cromartie v. Warden, GDCP, No. 7:14-cv-00039 (M.D. Ga. July 7, 2014), ECF 18-31. The United States Supreme Court denied his petition for certiorari, Cromartie v. Georgia, 528 U.S. 974 (1999), and his petition for rehearing, Cromartie v. Georgia, 528 U.S. 1108 (2000).
C. First Order Setting Execution
On April 19, 2000, the Thomas County Superior Court issued an order setting Cromartie‘s execution for the week of May 9 through May 16, 2000. Notice of Filing, Cromartie, No. 7:14-cv-00039, ECF 19-3. Cromartie filed a motion for a stay of execution in both the superior court and the Georgia Supreme Court. Id. ECF 19-4, 19-9. Both of those motions were denied. Id. ECF 19-6, 19-12. Cromartie‘s execution was, however, automatically stayed when he filed a state habeas petition four days before the week of his scheduled execution. See id. ECF 19-13.
D. State Habeas Petition
Cromartie filed a habeas petition in the Butts County Superior Court on May 5, 2000, id. ECF 19-14, and amended it on December 9, 2005, id. ECF 20-22. The court held an evidentiary hearing on August 12 through 14, 2008. Id. ECF 21-24. It denied his petition in an eighty-six page order on February 9, 2012. Id. ECF 23-37.
After Gary Young, a trial witness, recanted some of his testimony Cromartie filed a motion to reconsider the denial of his state habeas petition. Id. ECF 23-42. The court reopened discovery so that Young could be deposed. Id. ECF 23-44, 23-45, 23-47. On October 9, 2012, the court found that Young‘s recantation was unreliable and denied Cromartie‘s motion to reconsider. Id. ECF 24-9; see supra note 2. He filed in the Georgia Supreme Court an application for a certificate of probable cause to appeal the February 9 order that denied his habeas petition and the October 9 order that denied his motion for reconsideration. Id. ECF 24-10. The Georgia Supreme Court denied his application, id. ECF 24-14, and the United States Supreme Court denied his petition for a writ of certiorari, Cromartie v. Chatman, 572 U.S. 1064 (2014).
E. Federal Habeas Petition
Cromartie filed a habeas petition in the Middle District of Georgia on March 20, 2014, and amended it on June 22, 2015. Petition for Writ of Habeas Corpus, Cromartie, No. 7:14-cv-00039, ECF 1, 62. The district court denied the habeas petition and declined to issue a certificate of appealability on any of his claims. Cromartie v. Warden, No. 7:14-cv-00039, 2017 WL 1234139, at *43–44 (M.D. Ga. Mar. 31, 2017). The district court thereafter denied Cromartie‘s Rule 59 motion to alter or amend the judgment. Order, Cromartie, No. 7:14-cv-00039, ECF 84.
Cromartie then filed in this Court an application for a certificate of appealability, which we denied. Cromartie v. GDCP Warden, No. 17-12627, 2018 WL 3000483, at *1 (11th Cir. Jan. 3, 2018); see also Order, Cromartie, No. 17-12627, ECF 26 (denying motion for reconsideration). The United States Supreme Court denied certiorari on December 3, 2018. Cromartie v. Sellers, 139 S. Ct. 594 (2018).
On December 28, 2018, Cromartie filed a motion in the Thomas County Superior Court asking for a new trial and DNA testing on various items that had been introduced as evidence during his trial. Doc. 11 ¶ 27. He contended that two advancements in DNA technology — the ability to test “touch DNA” and probabilistic genotyping — could reveal that one of his accomplices was the actual triggerman. Doc. 1-2 at 31–32. Cromartie does not deny being involved in the robbery in which Slysz was murdered but contends that he did not fire the shots.3 Doc 11 ¶ 23 n.5.
After the court held an evidentiary hearing, it issued an order denying Cromartie‘s motion on September 16, 2019. Doc. 1-2 at 3–36. The court concluded that (1) even if the DNA testing showed what Cromartie alleged it would, the results would not establish a reasonable probability that the verdict would have been different, and (2) he could not show that his motion was not filed for the purpose of delaying his execution. Id. On October 25, 2019, the Georgia Supreme Court denied Cromartie‘s application for a discretionary appeal. Cromartie v. State, Case No. S20D0330 (Ga. Oct. 25, 2019).
G. Second Order Setting Execution
On October 16, 2019, the Thomas County Superior Court issued an order setting Cromartie‘s execution for the week of October 30 through November 6, 2019. Doc. 7 at 5 n.1. The Georgia Department of Corrections scheduled it for October 30 at 7:00 p.m. Id. at 1. Cromartie moved in the Georgia Supreme Court for a stay of the execution pending his appeal of the trial court‘s order denying his request for DNA testing. Cromartie, Case No. S20D0330. That court dismissed his motion for a stay as moot because it denied his application for a discretionary appeal. Id.
On October 24, 2019, Cromartie filed in the Thomas County Superior Court an emergency motion to recall the order setting the execution period, a motion that has been denied. He also filed in the Butts County Superior Court a second state habeas petition, which has also been denied. And he filed with the Georgia State Board of Pardons and Paroles a request for a 90-day stay of his execution, which the Board denied. The Board also sua sponte considered commuting his sentence but declined to do so upon a review of all the facts and circumstances of his case.
H. Cromartie‘s 42 U.S.C. § 1983 Complaint
On October 22, 2019, Cromartie filed in the United States District Court for the Middle District of Georgia a
The defendants filed a motion to dismiss on October 25, contending both that the district court lacked subject matter jurisdiction and that Cromartie had failed to state any claims upon which relief could be granted. Cromartie filed a response and an amended complaint on October 28. On October 29, the district
court dismissed Cromartie‘s complaint and denied his motion for a stay, finding that he failed to state a claim upon which relief could be granted and that he acted with “unjustified delay in filing [his] action.” This is Cromartie‘s appeal.
II. STANDARD OF REVIEW
We review de novo the grant of a motion to dismiss for failure to state a claim under
We review the denial of a motion for a stay of execution for abuse of discretion. Muhammad v. Sec‘y, Fla. Dep‘t of Corr., 739 F.3d 683, 688 (11th Cir. 2014). “A district court abuses its discretion if, among other things, it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Long v. Sec‘y, Dep‘t of Corr., 924 F.3d 1171, 1176 (11th Cir. 2019) (quotation marks omitted).
A court may grant a stay of execution only if the moving party shows that “(1) he has a substantial likelihood of success on the merits, (2) he will suffer irreparable injury unless the injunction issues, (3) the injunction would not substantially harm the other litigant, and (4) if issued, the injunction would not be adverse to the public interest.” Id. at 1175.
III. DISCUSSION
A. Cromartie‘s Facial Procedural Due Process Claim
Cromartie claims that Georgia‘s procedure for determining whether a prisoner is entitled to postconviction DNA testing is facially unconstitutional under the Fourteenth Amendment‘s Due Process Clause.
1. The Framework for Evaluating Cromartie‘s Claim
The Supreme Court established a framework for evaluating claims like Cromartie‘s in District Attorney‘s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009). Osborne, an Alaska prisoner, filed a
The Supreme Court reversed. Id. at 61–62. It acknowledged that if state law entitles prisoners to challenge their convictions on the ground of actual innocence, they have a “liberty interest”
With that distinction in mind, the Supreme Court set out this test: A state‘s procedure for accessing postconviction DNA testing violates due process if 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 fairness in operation.” Id. (quotation marks omitted). Put another way, “[f]ederal courts may upset a State‘s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.” Id. The Court has since made clear that this is a difficult standard to meet, stressing that “Osborne severely limits the federal action a state prisoner may bring for DNA testing” and “left slim room for the prisoner to show that the governing state law denies him procedural due process.” Skinner v. Switzer, 562 U.S. 521, 525 (2011). Those of us on the lower courts have paid attention. Every court of appeals to have applied the Osborne test to a state‘s procedure for postconviction DNA testing has upheld the constitutionality of it. See, e.g., Morrison v. Peterson, 809 F.3d 1059, 1067–69 (9th Cir. 2015) (holding California‘s procedure constitutional); Alvarez, 679 F.3d at 1266 n.2 (holding Florida‘s constitutional); McKithen v. Brown, 626 F.3d 143, 152 (2d Cir. 2010) (holding New York‘s constitutional); Tevlin v. Spencer, 621 F.3d 59, 71 (1st Cir. 2010) (holding Massachusetts’ constitutional); Cunningham v. Dist. Attorney‘s Office, 592 F.3d 1237, 1261 (11th Cir. 2010) (holding Alabama‘s constitutional).
Though it has made clear that a prisoner will seldom be able to meet the Osborne test, the Supreme Court has “attempted neither to define exactly the level of process required to satisfy the fundamental fairness standard nor to specify the process due.” Cunningham, 592 F.3d at 1261. But Osborne gives guidance. The Court held in that case there was “nothing inadequate” about Alaska‘s procedure for several reasons. Osborne, 557 U.S. at 69–70. The Alaska procedure “provide[d] a substantive right to be released on a sufficiently compelling showing of new evidence that establishe[d] innocence.” Id. at 70. It “exempt[ed] such claims from otherwise applicable time limits.” Id. It “provide[d] for discovery in postconviction proceedings,” and “that . . . discovery procedure [was] available to those seeking access to DNA evidence.” Id. The Supreme Court discussed limits that Alaska imposed on postconviction relief claim evidence, such as requiring that it be “newly available,” “sufficiently material,” and “diligently pursued.” Id. Those limits were constitutional, the Court reasoned, because they were “similar to those provided for . . . by federal law and the law of other States” and were “not inconsistent with the traditions and conscience of our people or with any recognized principle of fundamental fairness.” Id. (quotation marks omitted).5
Using the framework that Osborne established, this Court has held that Alabama‘s and Florida‘s procedures for postconviction DNA testing are
constitutional. See Alvarez, 679 F.3d at 1266 n.2 (Florida); Cunningham, 592 F.3d at 1269 (Alabama).6 In doing so, we explained that because the Supreme Court “did not define a level of process necessary to satisfy the fundamental fairness standard,” we were left to compare Alabama‘s and Florida‘s procedures to those that the Court had already approved in Osborne. Cunningham, 592 F.3d at 1262–63; see also Alvarez, 679 F.3d at 1266 n.2Id. at 1263. We apply that comparative approach here.
2. Analyzing Georgia‘s Procedure
Section 5-5-41 of the Georgia Code sets out the procedure that a prisoner may use to challenge his conviction based on postconviction DNA testing. It allows the prisoner to file two motions: an extraordinary motion for a new trial and a motion for postconviction DNA testing.
testing under O.C.G.A. § 5-5-41(c) is generally filed in conjunction with an extraordinary motion for a new trial pursuant to O.C.G.A. § 5-5-41(a).“).
What makes an extraordinary motion for a new trial extraordinary is the time at which it is filed. Normally, Georgia prisoners must file a motion for a new trial within 30 days of the entry of judgment.
A motion for postconviction DNA testing comes with its own set of requirements. A prisoner must show, among other things, that: (1) the reason he did not have the DNA testing done for trial is that he either did not know about the evidence then, or the testing was not technologically available; (2) the “identity of the perpetrator was, or should have been, a significant issue in the case;” and (3)
the “requested DNA testing would raise a reasonable probability that the petitioner 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.”
If the prisoner meets those requirements, he is entitled to a hearing on the motion within 90 days.
The court is required to grant the motion for DNA testing if it determines that the prisoner has met all of the requirements we have discussed, and that: (1) the evidence is available in a condition that would permit testing; (2) the evidence has been subject to a chain of custody; (3) the evidence “was not tested previously or, if tested previously, the requested DNA test would provide results that are reasonably more discriminating or probative of the identity of the perpetrator than prior test results;” (4) the motion was not filed “for the purpose of delay;” (5) the “identity of the perpetrator of the crime was a significant issue in the case;” (6) the requested testing “employs a scientific method that has reached a scientific state of verifiable certainty;” and (7) the prisoner has “made a prima facie showing that the evidence sought to be tested is material to the issue of the [prisoner]‘s identity as the perpetrator.”
Georgia‘s procedure is substantially similar to the one that the Supreme Court approved in Osborne. Like Alaska‘s, it provides prisoners with an avenue to challenge their convictions based on DNA evidence showing that they are innocent. Osborne, 557 U.S. at 64; Westmoreland v. Warden, 817 F.3d 751, 753–54 (11th Cir. 2016). Like Alaska‘s, it allows prisoners to file the motion after the otherwise applicable time limit has expired. Osborne, 557 U.S. at 64. Like Alaska‘s, it requires that the prisoner show he acted with due diligence and without the purpose of delay. Id. Like Alaska‘s, it requires that the evidence or
There are some differences. The Georgia statute has one requirement that Alaska‘s does not: the prisoner must show that the identity of the perpetrator is a significant issue in the case.
And Alaska‘s statute offers discovery whereas the Georgia statute, at least on its face, does not. Osborne, 557 U.S. at 64. But, once again, the federal statute for postconviction DNA testing, which the Supreme Court blessed in Osborne, also does not provide for discovery (it only requires the government to provide the prisoner with a limited inventory). See
There are ways the Georgia procedure is more favorable to prisoners than the Alaska or federal procedures. For example, in Georgia a prisoner is entitled to a hearing on his motion if he meets the requirements for filing, and he is also expressly entitled to an appeal.
3. Cromartie‘s Arguments
Despite the similarity between Georgia‘s procedures and the ones endorsed in Osborne, Cromartie argues that Georgia‘s are fundamentally unfair for two reasons. First, he takes issue with Georgia‘s requirement that a prisoner show he acted with due diligence in filing his motion. According to him, that requirement means a prisoner must seek DNA testing on the physical evidence in his case “as soon as possible,” even if the DNA testing that exists at that time is not technologically
In discussing the due diligence requirement, the Georgia Supreme Court has stated that a prisoner must show that he “exercised due diligence but, due to circumstances beyond [his] control, was unable previously to discover the basis for the claim [he] now asserts.” Ford Motor Co. v. Conley, 757 S.E.2d 20, 30 (Ga. 2014). The fact that DNA testing was not advanced enough to render a meaningful result in a prisoner‘s case would satisfy that standard.
If there were any doubt about how Georgia‘s due diligence standard operates when it comes to DNA testing, we need only look at the plain text of the statute to rule out Cromartie‘s interpretation. Section 5-5-41(c)(3)(B) requires a prisoner to show that the evidence he wants tested “was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner . . . prior to trial or because the technology for the testing was not available at the time of trial.” (Emphasis added.) And
Second, Cromartie takes issue with Georgia‘s requirement that the favorable DNA testing results create a reasonable probability that he would have been acquitted had those results been available at trial. See
The second problem with Cromartie‘s argument is that it is at odds with stacks of precedent accepting and applying “reasonable probability” standards like this one in a number of other contexts. See, e.g., Kyles v. Whitley, 514 U.S. 419, 433 (1995) (“[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.“) (quotation marks omitted); United States v. Olano, 507 U.S. 725, 734 (1993) (stating that for a court to correct unpreserved error, the “the error must have been prejudicial: It must have affected the outcome of the district court proceedings“); Strickland v. Washington, 466 U.S. 668, 695 (1984) (“When a defendant challenges a conviction [based on ineffective assistance of counsel], the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.“). To hold, as Cromartie insists, that the reasonable probability of a different result standard is “totally subjective” and allows “no meaningful assessment of the weaknesses in [the] evidence,” would upend decades of precedent related to Brady and Strickland issues.
B. Cromartie‘s As-Applied Due Process Claim
In his complaint, Cromartie states in passing that he also “challenges the constitutionality of § 5-5-41(c) . . . as applied by the Georgia courts.” There are three problems with that.
First, to the extent Cromartie made an as-applied challenge in his complaint, he expressly disavowed it in his reply to the State‘s motion to dismiss. There, he stated: “Plaintiff brings a facial challenge, not an as-applied challenge.” Doc. 10 at 6. Given that disavowal, any as-applied argument that Cromartie might have is waived. See United States v. Phillips, 834 F.3d 1176, 1183 (11th Cir. 2016) (explaining that “when a defendant waives an argument in the district court, we cannot review it“) (emphasis omitted).
Second, even if the argument were not waived, it is foreclosed by this Court‘s precedent. See Alvarez, 679 F.3d at 1262–64 (holding that a prisoner‘s as-applied procedural due process claim attacking the state court‘s application of that state‘s DNA access procedure to the facts of his case is barred in these circumstances by the Rooker-Feldman doctrine).
Third, the claim as Cromartie presented it amounts to an assertion that the state court misapplied state law. See Doc. 10 at 14–18 (arguing that the Georgia court arbitrarily applied § 5-5-41(c)(3)(D)‘s reasonable probability requirement in his case). But a state court‘s misapplication of state law, without more, does not violate the federal Constitution. See, e.g., Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a State‘s criminal judgment susceptible to collateral attack in the federal courts.“); Snowden v. Hughes, 321 U.S. 1, 11 (1944) (“Mere violation of a state statute does not infringe the federal Constitution.“); Gissendaner v. Comm‘r, Ga. Dep‘t of Corr., 794 F.3d 1327, 1333 (11th Cir. 2015) (noting
For each of those reasons, the district court properly dismissed Cromartie‘s as-applied claim.
C. Cromartie‘s Right to Access the Courts Claim
Cromartie also contended in his complaint that postconviction access to evidence for DNA testing is necessary to vindicate his First and Fourteenth Amendment right to access the courts. But he “neglected to make these arguments in [his] initial brief on appeal, and our precedent unambiguously provides that issues that are not clearly outlined in an appellant‘s initial brief are deemed abandoned.” Al-Amin v. Smith, 511 F.3d 1317, 1336 (11th Cir. 2008) (quotation marks and brackets omitted); see also Tanner Advert. Grp., L.L.C. v. Fayette Cty., 451 F.3d 777, 785 (11th Cir. 2006) (en banc).
Even if he had not abandoned his claim, it fails on the merits. This Court has held that to violate a person‘s right to access the courts, there must be “actual injury.” Cunningham, 592 F.3d at 1271. That actual injury requirement “derives from the constitutional doctrine of standing” and “reflects the fact that the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Id. (quotation marks omitted).
To show actual injury, the plaintiff must “have an underlying cause of action the vindication of which is prevented by the denial of access to the courts.” Id. Cromartie has suggested two. He says that the potentially exculpatory DNA evidence could be used to challenge his conviction and death sentence in a motion for a new trial or to obtain executive clemency. Neither proffered cause of action will support an access to the courts claim.
To begin with, Cromartie‘s argument that the alleged inadequacy of Georgia‘s procedure for postconviction DNA testing has prevented him from being able to challenge his conviction or sentence “essentially mirrors” his procedural due process claim. Cunningham, 592 F.3d at 1272. Because we have concluded that Georgia‘s postconviction DNA procedure complies with due process requirements, “it follows that it does not improperly interfere with [Cromartie‘s] right of access to the courts.” Id. That Cromartie has not succeeded in obtaining potentially exculpatory evidence under the state‘s constitutionally adequate procedures is not a denial of his right to access the courts. Id.
Cromartie‘s argument about executive clemency fares no better. The Supreme Court has held that there is no federal constitutional right to executive clemency. See Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981). As a result, executive clemency “cannot be a basis for an access to courts claim.” Cunningham, 592 F.3d at 1272.
Because Cromartie has failed to identify a cause of action that meets the actual injury requirement for a claimed denial of access to the courts, the district court was right to dismiss his access to the courts claims for lack of subject matter jurisdiction.
We AFFIRM the district court‘s decision dismissing Cromartie‘s
MARTIN, Circuit Judge, concurring in the judgment:
The Majority opinion correctly sets out the precedent that binds our decision here. I therefore concur in its judgment.
Notes
This argument of his does risk confusing motions for new trial with motions for postconviction DNA testing. The two are distinct. See White v. State, 814 S.E.2d 447, 451 (Ga. Ct. App. 2018) (noting a motion for postconviction DNA testing may be filed before any extraordinary motion for a new trial); see also State v. Clark, 615 S.E.2d 143, 145–46 (Ga. Ct. App. 2005) (reviewing a motion for postconviction DNA testing that was filed without an accompanying extraordinary motion for a new trial). Cromartie has not pointed to any Georgia decision holding that a prisoner cannot file multiple motions for postconviction DNA testing. Nor has he pointed to any decision holding that if a prisoner obtains favorable DNA results after he has already filed his one extraordinary motion for a new trial, he cannot file a state habeas petition seeking relief based on those results.