« Possible death penalty repeal in Illinois now in hand of Governor Pat Quinn | Main | Struggling to get psyched for Sykes, another ACCA case before SCOTUS »

January 11, 2011

SCOTUS blocks Texas execution, but Oklahoma completed second execution of 2011

As detailed in this AP story, Texas death row defendant "Cleve Foster’s lethal injection was stopped by the U.S. Supreme Court so it can further review [his] appeal. In the court’s brief order [which is available here], Justices Antonin Scalia and Sam Alito indicated they would have allowed the punishment to proceed."

Meanwhile, as detailed in this Reuters story, "Oklahoma put to death on Tuesday ... Jeffrey David Matthews ... [who] was convicted of murdering Otis Earl Short, 77, his great uncle, during a robbery of the elderly man's home."

As this DPIC webpage details, Oklahoma now has executed in the first few weeks of 2011 only one less person than the state put to death in all of 2009 and in all of 2010.  Meanwhile, the last-minute stay in Texas means that the Lone Star State is now certain to go more than three full months without an execution.  That long a period between Texas executions has not happened since the Baze-created SCOTUS moratorium three years ago, and had not happened before then for more than a decade.

January 11, 2011 at 09:59 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS blocks Texas execution, but Oklahoma completed second execution of 2011:


This is a ridiculous stay and yet another example of the irresponsibility of the Supreme Court when it comes to capital punishment. Cleve Foster has had his full round of state appeals and his habeas petition was denied December 10, 2010. And now the Supreme Court sees fit to grant him a stay. What an absolute joke. It is time for the federal courts' involvement with capital punishment in the states on habeas corpus to end. These last minute stays are ridiculous, as is the Court's abject refusal to deal with the lower courts willful disregard of AEDPA.

Posted by: federalist | Jan 11, 2011 10:25:32 PM

DOes anyone know what the issue was that stayed Foster's execution? It can't be innocence, DNA and posession of the murder weapon precludes that.

Posted by: MikeinCT | Jan 11, 2011 11:25:55 PM

That 7 our of 9 justices of the supreme court disagree with you federalist must really upset you. Maybe you're not as smart as you think.

Posted by: anon1 | Jan 11, 2011 11:45:00 PM

HI, I'm Pete EX Royal Navy,and retired.Been following the Cleve Foster story for 3 months.I've done my share of drinking, cussing ,womanising, and corperate killing ,but felt disturbed by this ,i go to church regular these days,have served my country in combat,so don't think i'm a bleeding heart happy clappy tree hugger ok. I prayed for this man,as i did last night 11 Jan 2011,at midnight UK time,Have i seen my prayer answered?,has common sense prevailed,a re trial with all available evidence is the only way.Not my country,but you have some real evil people in your jails,however inspite of their crimes,i think the way they are kept locked up for years and years, decades before Execution is wrong. If it is absolute that guilt is proven,do it,and do it quick,but at some point,there must be a case for life without parole,but to kill a human being after say 24 years on death row,is sickening to me., but like i say US isn't my country,and mine isn't pefect either.

Posted by: Pete | Jan 12, 2011 6:23:53 AM

did Foster's attorney file for cert at SCOTUS after the denial at the 5th Circuit? If not, there is always a chance that they will delay until the petition is filed and considered if they see an issue worth looking at.

Posted by: DaveP | Jan 12, 2011 7:28:37 AM

In the court’s brief order [which is available here], Justices Antonin Scalia and Sam Alito indicated they would have allowed the punishment to proceed.

WAIT. Justice Thomas didn't vote against the stay? Yikes.

Posted by: . | Jan 12, 2011 7:50:18 AM

The Supreme Court docket can tell you a lot. The lower court was the Court of Criminal Appeals of Texas and it decided the case on 12.30.2010. Probably a successor state petition so AEDPA doesn't apply. The petition for certiorari petition and motion for a stay of execution were filed 1.10.2010.

Posted by: arfarf | Jan 12, 2011 9:35:51 AM

Now that I have had time to look into it, SCOTUS denied cert on 12/13/10 from the denial at the 5th Circuit. arfarf is correct that they granted the stay from the TCCA's latest denial. Issues? I would have to agree with federalist now that this seems like it is stretching it. But, 7 justices granted the stay. In capital cases, nothing surprises me.

Posted by: DaveP | Jan 12, 2011 9:55:59 AM

We would execute them if we could, but that is largely out of our hands. Judges and the inmates' attorneys drag the process out for decades. The process can be sped up to some degree, but never "you're guilty so lets kill you now".

Posted by: MikeinCT | Jan 12, 2011 10:50:37 AM

"But, 7 justices granted the stay. In capital cases, nothing surprises me." Really? It doesn't surprise you that Thomas voted to grant the stay? Care to look into when the last time Thomas voted to grant and another justice voted to deny?

Posted by: . | Jan 12, 2011 11:05:33 AM

I would have to look into it where Thomas would vote to grant a stay and there were others such as in this case who wanted the execution to proceed. A little different situtation involved Roderick Nunley in October when the 8th Circuit stayed his execution and SCOTUS voted 8-1 to uphold it, with Scalia the lone dissenter.

Posted by: DaveP | Jan 12, 2011 4:39:18 PM

This stay is a garbage stay. The guy's had his full complement of appeals. And he gets a stay based on a fourth round? Whatever. We're back to the bad old pre-AEDPA days.

And the stay on the Nunley case was beyond garbage--completely in the face of AEDPA.

Posted by: federalist | Jan 12, 2011 7:51:52 PM


the Missouri Supreme Court heard OA last week on Nunley and Taylor asking them to reduce to life based on Ring. Several ex-judges joined in with them saying it would be a "miscarriage of justice" if the two did not get relief because others did. They both waived jury participation so hopefully the state will prevail. Then I suppose it goes back to Gaitan if the state wins.

Posted by: DaveP | Jan 13, 2011 6:50:00 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB