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Another Stay in Foster

The US Supreme Court continues to play "red light, green light" with the execution of Texas murderer Cleve Foster.  Today's stay order is here.

For background, see prior posts:

Tim Madigan of the Fort Worth Star Telegram has this pre-stay story.


I am sorry, but this is ridiculous. The Supreme Court is being every bit as bad as the Ninth Circuit was over the Harris execution. Each and every member of the Court ought to be thoroughly ashamed of him/herself. Either they are being too clubby to call out whoever is voting for this stay, or they are affirmatively voting to jerk around a sovereign state, which, at this point, has every right to enforce its judgment. Every right. The Supreme Court should follow the rules it has set for other federal courts, namely weighing of the equities when it comes to stays.

The Supreme Court should lose its power to stay state executions. It is that simple. This is an absolute travesty of justice.

I normally don't attach as much weight as federalist to the feelings of family members, on the theory that the first obligation of courts is to get it right, and that additional time is sometimes needed to do that. In the present instance, however, federalist is spot on. This is a disgrace. The Court is toying with the family's feelings. There has been ample time to figure out everything that needs figuring out. Time to get moving.

Has SCOTUS lost sense of reality? What are they doing with this case? What issues have been raised to get 3 stays of execution in less than a year? I don't understand the recent stays granted in the Texas cases. What happened to AEDPA?

federalist, Bill Otis

the way it's going lately, let us hope they don't block the Troy Davis execution.

Kent, could you help us understand this Foster case. I have never seen SCOTUS do this so many times.

I have asked Kent to clarify this Foster case. This is unbelievable.

The stay is because the case raises the same issue as Martinez v. Ryan, the subject of a recent cert grant. The Ninth Circuit opinion denying relief to Martinez, by O'Scannlain, was at 623 F.3d. 731 (2010). Why the Supreme Court kept issuing and reissuing Cleve Foster a stay and then vacating it is beyond me, and was no easier for Foster, his family and his counsel than it was for the State's attorney or for the victim's family. The Supreme Court should have just issued the stay for Foster and been done with it until Martinez was decided, if that was where they were going to end up anyway. Their vacillating just caused everyone needless tsuris.

Bill, I only attach as much feelings for the victims' family as the Supreme Court has:

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

Not to repeat myself, but this guy has had his full panoply of appeals/habeas and then some. In this last case, the execution date was set months after the Supreme Court lifted its latest stay. And what do we get again--a last minute appeal/stay. This is unacceptable and wrong. The Supreme Court, with these last-minute stays in response to last-minute appeals encourage litigants to hold arguments in reserve and spring them on the courts. This flies in the face of AEDPA's purpose and Court's own pronouncements. And they don't even bother to state the reasons. It is irresponsible, and it is wrong.

By the way, Foster's attorneys filed the latest round of appeals in a Texas trial court on September 2, 2011. He had months, and sprung this at the last minute. And the Supreme Court saw fit to stay the execution. The Court owes an explanation. Federal courts should no longer have the power to stay executions. They shouldn't even have the right to review death sentences.

I believe the September 20 execution date was set by the Texas district judge over 4 months ago. SCOTUS encourages death row attorneys to piecemeal the litigation and wait until the very end to file for stays.

YStxb5ckjvv.prFklNMJYN4vF7vnHg--#9e48a, please see my comment on comments of September 2.

I would love to help you understand these on-again off-again stays, but I don't understand them myself.

The Martinez issue is not all that different from the Maples issue, and that was already before the Court when they lifted the previous stay. It's very weird.

Whether or not Martinez is relevant to this case should be irrelevant. Foster has had his habeas petition. That should be it.

And, the Supreme Court really ought to be explaining itself.

The Supreme Court set an awful precedent with the Baze stays. Many of them were last-minute appeals.

There needs to be a legislative fix. SCOTUS is flouting AEDPA.

Federalist and YStxb5ckjvv.prFklNMJYN4vF7vnHg--#9e48a, since the Maples cert grant, Foster's attorneys have repeatedly raised this same issue in various petitions, receiving stays, which have been inexplicably dissolved. It's hardly their fault that the Supreme Court has so much difficulty making up it's collective mind on this.

As for the idea that piecemeal claims are encouraged by federal habeas law or federal court practice, that's not my experience.

The standards for gaining permission for filing of a second or successive petition under 28 U.S.C. § 2244(b) are daunting, statute of limitations problems and the limited availability of relation back in federal habeas is another serious obstacle, and procedural bar is no joke either. It behooves practitioners to raise procedural arguments as soon as they become obvious, to avoid common arguments regarding defaults, laches and timeliness.

The problem I have with all of this (and I suspect that the stays granted are out of some misplaced idea of collegiality) is that all these issues could have been raised much earlier, i.e., on his first habeas. Second, whether or not habeas encourages piecemeal claims is irrelevant here--the Supreme Court is encouraging piecemeal and last-minute filings with these stays. With respect to the attorneys, it's not their fault in the sense that they are doing what they think is best for client--but the Court should note that this latest claim was filed with Texas courts on September 2. This was MONTHS after the latest stay was dissolved. That's clearly relevant in the calculus of whether a stay is to be granted.

My view is that Texas and all other DP states should simply turn the phones off on the afternoon of an execution. If the stay isn't served, it's not enforceable.

My view is that Mr. Holder et al. should get off their collective behinds and implement Chapter 154 of 28 U.S.C. Once that has been done and a state has qualified, §2262(c) governs stays after the first federal habeas review has been completed: "no Federal court thereafter shall have the authority to grant a stay of execution in the case, unless the court of appeals approves the filing of a second or successive application under section 2244(b)."

The criteria for that are quite stringent: actual innocence or a retroactive new rule. Retroactivity for new rules is effectively limited to substantive, not procedural, rules.

I wholeheartedly agree. I don't see that problem getting fixed until, hopefully, January 21, 2013.

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