The state of Mississippi should not be setting execution dates for condemned inmates until a decision is reached on whether death by lethal injection is cruel punishment, says attorneys for Earl Wesley Berry.

Assistant Attorney General Marvin L. White Jr. asked the Mississippi Supreme Court on Monday to set an execution date for Berry.

The Mississippi court has not ruled on the request.

In a response filed Thursday with the court, attorneys with the Mississippi Office of Capital Post-Conviction Counsel said other states have delayed executions until the lethal injection issue is settled.

Attorney Robert M. Ryan said the U.S. Supreme Court’s decision to consider the constitutionality of a lethal injection procedure similar to that used in Mississippi is sufficient for a stay of execution. He said without a final decision the setting of an execution date for Berry was premature.

The U.S. Supreme Court case involves two death row inmates’ claim that lethal injection as practiced in Kentucky violates the Constitution’s ban on cruel and unusual punishment.

Every state that uses lethal injections — including Mississippi — employs the same three drugs, but there are differences among the states in the way the drugs are administered, training of executioners who administer them and dosages, legal experts have said.

The nation’s high court said it will hear the case early next year.

White said the Supreme Court has not halted other executions while the Kentucky case is pending. He said the Mississippi court “has upheld the use of lethal injection as a constitutional method of execution.”

Ryan said Berry has not exhausted his appeals as the state had claimed. Ryan said Berry will file a post-conviction petition to attack his execution by lethal injection with claims similar to those in the Kentucky case.

Berry, who has been on death row since 1988, lost an appeal Monday when the U.S. Supreme Court declined to hear his case.

Berry had challenged a decision from the 5th U.S. Circuit Court of Appeals, which said in April that Berry had raised no new issues that might win him another trial. A federal judge in Mississippi in 2006 denied Berry’s same request.

Berry was convicted and sentenced to death by a Chickasaw County jury for the Nov. 19, 1987, killing of Mary Bounds. Bounds was beaten to death after leaving her weekly church choir practice, authorities said. Her body was found just off a Chickasaw County road near Houston.

Berry admitted to the killing, and the confession was used against him at trial.

Berry has lost appeals on issues ranging from allegations that blacks were illegally kept off his trial jury to whether he is mentally retarded.