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Cert. Denied in Foster

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The US Supreme Court denied certiorari in the case of Texas murderer Cleve Foster.  The prior post on the Court's stay of execution last week is here.  Foster's lawyers claim he is innocent, but they have a problem with the inconvenient truth of a conclusive DNA match.  The previously entered stay terminates automatically with the denial of certiorari.

The Court did not take up any new criminal cases today or issue any opinions.  Today's arguments are all civil cases.  Lyle Denniston at SCOTUSblog has this preview of argument in a "legal soap opera" that actually has some interesting issues regarding relations between state and federal courts. 

Opinions are expected tomorrow, but we do not know in what cases.

Swarthout v. Cooke, regarding the Ninth Circuit's self-assigned additional duty as California's Parole Appeals Board, has been relisted for Friday's conference.

Update:  John Elwood has this relist watch at SCOTUSblog.

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Here are the words from a unanimous Supreme Court in Hill v. McDonough:

"We state again, as we did in Nelson, that a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts."

And then there's this from Hill v. McDonough:

"Both the State and the victims of crime have an important interest in the timely enforcement of a sentence."

Here, Cleve Foster had the benefit of his direct state appeal, his state post-conviction remedies and his federal habeas petition. So now, with respect to a last-minute claim on a further round of appeals, SCOTUS, in the face of its own pronouncements stays the execution? This is surpassing unacceptable from a court supposedly, like all of us, subject to the rule of law. This is the apotheosis of "do as a say, not as I do". The Ninth Circuit, or more accurately, certain judges on the Ninth Circuit have a reputation for lawlessness. That appellation applies to this stay as well. The Supreme Court owes the victims' families an apology. It dropped the ball.

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