Texas man gets temporary execution stay from Supreme Court

AUSTIN, Tex Tue Apr 5, 2011 1:10pm EDT

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AUSTIN, Tex (Reuters) - A Texas man scheduled to be put to death later on Tuesday received a temporary stay of execution from the U.S. Supreme Court.

The stay was granted over concerns that inmate Cleve Foster's state-appointed lawyers were ineffective and prevented him from raising claims of innocence, said Maurie Levin, Foster's attorney.

"I'm thrilled that the Supreme Court stayed Mr. Foster's execution, and that they will be looking at the important issues raised," Levin said in an interview.

Texas, the state that executes more inmates than any other, has 30 days to respond to Foster's petition for rehearing.

The stay, Levin said, is unrelated to her concerns about the process Texas used to redesign the state's execution drug protocol.

Foster, 47, who is scheduled to be executed for the rape and murder nine years ago of Nyanuer "Mary" Pal, 28, was to have been the first person executed in Texas using a sedative often used to euthanize animals.

The new drug pentobarbital is to replace sodium thiopental in Texas' three-drug execution protocol.

The change was necessary because Hospira Inc. of Illinois announced in January that it would stop making the sodium thiopental after Italy objected to Hospira manufacturing an execution drug in that country. That caused a shortage of the drug throughout the United States.

Ohio and Oklahoma have already switched to use of pentobarbital in executions.

A judge in Austin on Friday declined to order a halt to Foster's execution based on Levin's concerns that the process used to decide on the use of pentobarbital violates the state's open records law. A state appeals court denied Foster's appeal on Monday, and Foster's attorneys plan to appeal to the state Supreme Court, Levin said.

"Hopefully, this gives Texas a little more time to take a second look at recent changes in the lethal injection protocol," Levin said of the stay.

(Additional reporting by Jim Forsyth; Editing by Greg McCune)

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