By MICHAEL GRACZYK, Associated Press
HUNTSVILLE, Texas -- A former Army recruiter who for the third time this year was hours away from his scheduled execution for the rape-slaying of a woman in Fort Worth nearly 10 years ago was granted yet another reprieve by the U.S. Supreme Court on Tuesday.
Cleve Foster, 47, was set to die Tuesday evening in Huntsville.
The high court twice earlier this year stopped Foster's scheduled lethal injection. The latest court ruling came about 2 1/2 hours before Foster could have been taken to the Texas death chamber.
Foster was meeting with one of his lawyers in a small holding cell a few feet from the death chamber when a Texas Department of Criminal Justice spokesman delivered the news.
"He thanked God and pointed to his attorney, saying this woman helped save his life," prison spokesman Jason Clark said.
He also said Foster repeated his insistence that he was innocent.
"I did not do this crime," Foster told him. "I know there are those out there who have hard feelings against me, but I did not do this."
Unlike his previous trips to the death house in Huntsville, the reprieve came before he was served his requested final meal, which included two fried chickens and a five-gallon bucket of peaches.
Instead, he immediately was returned to death row, at a prison about 45 miles to the east.
Foster was one of two men convicted and sent to death row for fatally shooting a 30-year-old woman whose body was found in a ditch by pipeline workers in Fort Worth in February 2002. His partner died last year of cancer.
The court's brief order said the reprieve would remain in effect pending the outcome of Foster's request for a review, known as a petition for a writ of certiorari. If the writ is denied, the reprieve is lifted, clearing the way for a new execution date to be set.
"You're always hoping for the best and fearing the worse," Maurie Levin, the attorney who was with Foster when word of his reprieve was delivered to him. "I'm thrilled. It's extremely unusual to get three stays from the Supreme Court in nine or 10 months."
In January, just before the start of a six-hour window when Foster could be strapped to the death chamber gurney for injection, he won a reprieve so the justices could further review an appeal in his case. The court later denied a hearing, the reprieve was lifted and a new date was set. Then in April, the high court again halted his execution when lawyers sought a rehearing on arguments he was innocent and had poor legal help at his trial and in early stages of his appeal.
His lawyers returned to the court with similar arguments he was innocent and had previous deficient legal help, specifically asking the court to decide whether prisoners like Foster had a constitutional guarantee for a competent lawyer when he first raised claims in a state appeals court. State lawyers said the issues had been resolved by the courts, that the Supreme Court has ruled there's no constitutional right to a competent state-provided lawyer for appeals, and the last-day appeal was just another attempt to delay Foster's punishment.
Looming before the Supreme Court is consideration of a non-death penalty case out of Arizona that deals with appellate legal representation and Levin speculated that could be related to the court's actions in Foster's case.
"After that, it's tea leaves," she said.
The Texas attorney general's office, which contested Foster's appeals, had no additional comment Tuesday beyond its arguments to the courts.
Lucy Nashed, a spokeswoman for Texas Gov. Rick Perry, who also is a Republican presidential candidate, said the reprieve was "a matter for the courts," and declined further comment.
Foster's reprieve was the second in less than a week in Texas. The Supreme Court on Thursday halted the execution of Duane Buck, a black man convicted of a double murder in Texas 16 years ago. Buck's lawyers contended his sentence was unfair because a psychologist testified during his trial that black people were more likely to commit violence.
Foster would have been the 11th Texas prisoner executed this year. On Wednesday, Lawrence Russell Brewer, 44, was set to die for participating in the notorious dragging death case in Jasper in East Texas. Brewer was one of two white men condemned for the death of a black man, James Byrd Jr., more than 13 years ago, in a hate crime that shocked the nation for its brutality.
Foster was one of two men convicted and sent to death row for fatally shooting Nyaneur Pal. Her body was found on Valentine's Day 2002.
"I didn't do this," he said recently from outside his cell on death row. "I'll fight it to the end."
Foster and a companion, Sheldon Ward, were convicted of fatally shooting Pal, who came to the U.S. from Sudan and was known as Mary. Pal, who worked at a country club, was seen talking with Foster and Ward at a Fort Worth bar. Evidence showed she had been shot once in the head and raped.
A gun identified as the murder weapon was found in a motel room where Foster and Ward were living. Authorities determined the same gun was used two months earlier to kill another woman, 22-year-old Rachel Urnosky, at her Fort Worth apartment. She also had been raped.
Foster and Ward were implicated but never tried in her slaying.
An aunt and uncle of Pal and the parents of Urnosky were to witness the execution. They had not yet arrived at the Huntsville Unit of the Texas Department of Criminal Justice, where executions are carried out, when the court ordered the punishment stopped.
A phone message seeking comment was left Tuesday evening by The Associated Press with Terry Urnosky, the victim's uncle.
Foster blamed Pal's death on Ward, who was one of his Army recruits. Prosecutors said evidence showed Foster actively participated in the woman's killing, offered no credible explanations, lied and gave contradictory stories about his sexual activities with Pal.
Her blood and tissue were found on the weapon and DNA evidence showed both men had sex with her. Ward said the sex was consensual. Foster said he was passed out from sleeping pills at the time Pal would have been murdered.
Ward died of cancer last year while on death row.
Foster also denied any involvement in Urnosky's slaying in December 2001. He told detectives he and Ward were at her apartment but they left when she refused to have sex with them. The Texas Tech honors graduate was found dead in her bed after she failed to show up for work.
In appeals, attorneys referred to Ward's several statements claiming sole responsibility for Pal's murder.
"The most striking feature of Ward's `confessions' is that they are incompatible with each other," state lawyers said in their responses to the appeals courts.
Foster grew up in Henderson, Ky., and spent nearly two decades in the Army, reaching the rank of sergeant first class. He was deployed to the Middle East during Desert Storm and was assigned to Fort Worth as a recruiter. Records showed court martial proceedings were started against him after allegations he gave alcohol to underage students as a recruiter and had sex with an underage potential recruit. He was denied re-enlistment in the Army and had been out of the service only a short time when the slayings occurred.