HOUSTON (AP) - A federal appeals court on Tuesday refused the case of a former Army recruiter on Texas death row for the slaying of a Sudanese woman in Fort Worth eight years ago.
Condemned inmate Cleve Foster asked the 5th U.S. Circuit Court of Appeals for permission to move forward with appeals challenging his conviction for the abduction, rape and shooting death of Nyaneur "Mary" Pal on Valentine's Day 2002.
Foster, 46, insists he's innocent. He's one of two men sentenced to die for the 28-year-old woman's slaying.
DNA tests tied both Foster and his roommate, Sheldon Ward, 30, to Pal's death, though Ward has tried to accept sole responsibility for the killing. Neither man has an execution date.
Pal and the two men were regulars at a Fort Worth bar and pool hall. A bartender testified he saw Pal talking with the men after the place closed about 2 a.m. and she then drove off in her car, which was followed closely by Ward and Foster in Foster's truck. About eight hours later, construction workers found the body of Pal, nude and shot in the head, in a ditch in Tarrant County.
Police focused on the two men after learning they had been with her the previous night. Evidence showed a bullet recovered from the slain woman came from a gun detectives retrieved from the motel room the men shared.
Clinton Broden, one of Foster's attorneys, said he was reviewing Tuesday's ruling and Foster's appeals were not exhausted.
"We would definitely ask the Supreme Court to hear it and we may or may not as the 5th Circuit for a rehearing," he said.
A federal district court earlier limited Foster's appeals claims to arguments that his trial lawyers were deficient and that the Texas death penalty statute was unconstitutional. His appeals attorneys initially raised 11 claims in their appeal and argued to the New Orleans-based 5th Circuit that the other issues could be considered as "miscarriage of justice" exceptions.
The appeals court disagreed and supported the lower court's finding that evidence attempting to show Foster's innocence was not new and not reliable.
"He has not shown that he is qualified to pass through the actual innocence gateway," the appeals court wrote.
Foster argued his trial lawyers didn't put into evidence a number of records, including his military records, and evidence of abuse and neglect he suffered as a child.
The court said Foster's trial attorneys made a strategic choice about his military records because they included allegations he gave alcohol to underage students as a recruiter and had sex with an underage potential recruit. The allegations prompted court-martial proceedings to be instituted against Foster, who was denied the opportunity to re-enlist in the service.
The court also rejected the constitutional challenge to the Texas death penalty, saying the claim contended jurors were sent "mixed signals" when they were asked special-issue questions to determine punishment but failed to explain what those mixed signals were.