Earl Wesley Berry’s fate now rests with the U.S. Supreme Court.

On Friday, the 5th U.S. Circuit Court of Appeals denied Berry’s appeal. The 5th Circuit said Berry waited too late to challenge the constitutionality of lethal injection as a means of carrying out death sentence.

“Well-established Fifth Circuit precedent is clear: death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state’s method of carrying it out,” the court ruled.

Berry is scheduled to be executed by lethal injection 6 p.m. Tuesday in the state penitentiary at Parchman. He has asked the courts to stop his execution until the U.S. Supreme Court decides a Kentucky case that questions whether lethal injection violates the Constitution’s ban on cruel and unusual punishment.

Berry’s attorney, Jim Craig, said he will appeal the decision to the Supreme Court.

“Ultimately they’ve decided their past precedents trumped the Supreme Court’s recent granting (of a stay) in the Kentucky case and that will require us to go to the Supreme Court,” Craig said. “That was not totally unexpected, of course. We always knew whoever won in the district court and the court of appeals that the other party was going to go to the Supreme Court.”

Craig’s appeal will be the second filed to the high court for Berry. The Mississippi Office of Capital Post Conviction Counsel filed a separate, but parallel, appeal of a state Supreme Court ruling denying a stay to Berry.

Craig made the appeal to the 5th Circuit after U.S. District Judge W. Allen Pepper ruled in federal court Wednesday that Berry’s execution was unaffected by the Kentucky case pending before the Supreme Court.

Berry was sentenced to death for the 1987 murder of Mary Bounds. Bounds was beaten to death after being abducted shortly before her weekly church choir practice, and her body was found just off a Chickasaw County road near Houston, Miss.

When contacted Friday evening about the ruling, Mississippi Department of Corrections Commissioner Chris Epps said he had just returned from Parchman.

“We did some rehearsals up there,” he said.

“We always make sure (we’re prepared). You’ve got about 100 employees involved in an execution.”

Epps said officials will not make any changes to their normal routine as the appeals move through the court system.

Last-minute appeals have been unusual in his experience. There have been very few during his 27 years with the department and only one has occurred in the nine previous executions he presided over as commissioner.

In that case, the Supreme Court halted the execution of Bobby Glen Wilcher just 30 minutes before he was to be put to death on July 11, 2006. He was executed on Oct. 18, 2006, when the court chose not to intervene a second time.

Epps said the lethal cocktail used to put condemned inmates to death has not been an issue in Mississippi.

“I don’t see any problems with it,” he said.

In a hearing Tuesday before Pepper, the state attorney general’s office argued that Berry had waited until he was near execution to pursue an appeal.

Every state that uses lethal injections, including Mississippi, employs the same three drugs. Legal experts say there are differences among the states in the way the drugs are administered, the way the executioners who administer them are trained and the dosages given.

The U.S. Supreme Court, which has recently ordered stays of executions along with other courts, is scheduled to hear the Kentucky case early next year.

“We are still hopeful that the Supreme Court, which is the court that has shown some concern on the issue, will stay the execution,” Craig said.

Berry and four other death row inmates asked Pepper to prevent the state from carrying out their executions by lethal injection. Berry was the only one of the five with a pending execution date. The other four have appeals ongoing in the federal courts, the attorney general’s office said.

Berry’s conviction and death sentence became final in October 2002, the 5th Circuit judges wrote Friday.

“Only now, mere days before his scheduled execution, does Berry first challenge the execution protocol used in Mississippi,” they wrote. “Our precedent requires the dismissal of ‘eleventh hour’ dilatory claims such as Berry’s.”

They wrote that Berry’s appeal relies heavily on the stay granted in the Kentucky case and others, but said the court has repeatedly ruled that precedent “remains binding until the Supreme Court provides contrary guidance.”