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Condemned Miss. prisoner files appeal with US Supreme Court as execution nears

Earl Wesley Berry was sitting in a holding cell next to the execution room at the Mississippi State Penitentiary at Parchman Tuesday while his attorneys raced the clock to file appeals with the U.S. Supreme Court.

Berry, 49, is scheduled to be executed at 6 p.m. Wednesday. His would be the second execution by lethal injection in the country since the U.S. Supreme Court upheld Kentucky’s procedure in April. Before the decision, executions had been on hold across the nation for more than seven months.

Georgia became the first state in the nation to execute a death row inmate after the ruling. William Earl Lynd was put to death May 6 for kidnapping and killing his live-in girlfriend.

Georgia’s next execution is scheduled for Thursday night. Samuel David Crowe was sentenced to die in 1989 for killing a manager at a lumber company.

Berry was sentenced to death for the 1987 beating death of Mary Bounds in north Mississippi. He confessed to abducting Bounds as she left choir practice at First Baptist Church of Houston, Miss., killing her and dumping her body on a rural road.

Gov. Haley Barbour said Monday that he won’t grant clemency to the convicted murderer.

Berry was moved to the holding cell Monday as required by the Mississippi Department of Corrections. He will eat his final meal there, visit with his attorney, family and clergyman before being taken to the execution room around 6 p.m. Wednesday.

Last October, the Supreme Court stopped Berry’s execution while it mulled the Kentucky case.

Berry’s appeal will go to Justice Antonio Scalia. If Scalia turns it down, his decision could be appealed to the full court.

Jim Craig of Jackson, one of Berry’s attorneys, said Tuesday that the appeal will argue that Berry is mentally retarded and will attack Mississippi’s lethal injection procedure — both of which have been rejected in the Mississippi courts and the 5th U.S. Circuit Court of Appeals in New Orleans.

“The Mississippi protocol for lethal injections does not provide the same safeguards as the process that Kentucky,” Craig said in an interview Tuesday.

“Our Supreme Court papers ask the court to consider … does the Constitution require some court — state or federal — to review the facts of the Mississippi protocol for lethal injections to ensure that it provides adequate safeguards against low doses of anesthetic and other issues that would cause excruciating pain and a torturous death?” Craig said.

After the 5th Circuit’s refused Monday to stop Berry’s execution, Attorney General Jim Hood said no appeal is likely to succeed.

“This case is quickly moving toward its final resolution. We anticipate that the execution of Earl Wesley Berry will occur as scheduled,” Hood said.