(CN) – An Army veteran on death row in Texas won a last-minute stay of execution from the Supreme Court late Tuesday. Cleve Foster was one of two men convicted in the February 2002 rape and murder of a woman they met in a bar.
Foster had presented his appeal to Justice Antonin Scalia, who then referred the case to the full court, which granted the stay as the court considers whether to rehear the case. Scalia and Justice Samuel Alito dissented, stating simply that they would deny Cleve’s application.
Foster, 47, is an Army veteran and reportedly went by the nickname “Sarge” on death row. Prison officials said Foster had eaten his last meal and was moments from execution when the Supreme Court issued the four-sentence order at the end of the day on Tuesday, according to the AP.
The 5th Circuit rejected Foster’s appeal in an unsigned March opinion.
That ruling describes how Foster and Ward met Nyanuer “Mary” Pal at a bar in Fort Worth, Texas, where all three were regular patrons. Pal and the men left the bar separately, and Pal’s nude body was found eight hours later in a ditch far off a road in Tarrant County. She had been raped and shot in the head.
As police began investigating Foster and Ward’s role in the crime, Ward admitted to a friend that he needed a place to say because he had killed someone.
“Ward told his friend that he followed a girl home from a bar, forced her into a truck at gunpoint, took her out to the country, raped her, and shot her,” the March ruling states. “Ward did not mention Foster. The friend stopped the truck at a store and got the police to arrest Ward.”
Ward wrote a note to Foster apologizing for involving him and then confessed to authorities. According to Ward’s testimony, he admitted to having consensual sex with Pal in Foster’s truck and in the hotel room he shared with Foster while Foster was passed out. Ward said he went driving with Pal and next remembers standing over the woman’s dead body with a gun in his hand.
Foster told authorities Pal voluntarily went to their hotel room and performed oral sex on him as he slept.
Prosecutors did not find Foster’s story credible, however, since his semen had been in Pal’s vagina. They also said Ward, at 5 foot 6 and 140 pounds, was an inch shorter and just 10 pounds heavier than Pal, so he may have needed help from Foster, who is 6 feet and weighs 225 pounds, to move Pal’s body from the scene of the shooting to the site where her body was found.
The federal appeals court rejected Foster’s appeal, finding that he had not presented compelling new evidence that might have changed the outcome of his trial.