Joseph Daniel Burns waited out his appeals Tuesday in a holding cell near the execution chamber at the state penitentiary at Parchman.

Attorneys with the Office of Capital Post-Conviction Counsel asked the Mississippi Supreme Court on Monday to let them pursue another avenue of appeals through the trial court in Lee County.

The attorney general’s office filed a brief Tuesday opposing Burns’ post-conviction petition, while the Supreme Court has not yet ruled.

The penitentiary was placed on lockdown Tuesday, the usual procedure before an upcoming execution. Burns was moved to a holding cell on Monday.

Burns, now 42, was convicted in 1996 in the stabbing death of Tupelo motel manager Floyd Melvin McBride two years earlier.

His execution is scheduled for 6 p.m. Wednesday. It would be the third execution this year in Mississippi.

Burns’ attorneys also planned to file a clemency request with the governor’s office, seeking a delay so Burns can get a mental evaluation. The Mississippi Supreme Court denied the request last week.

Assistant Attorney General Pat McNamara filed a response with the Supreme Court on Tuesday that said Burns had already failed in one attempted post-conviction petition and one is all he should get.

In 2004, the Supreme Court dismissed Burns’ for a new trial on grounds that his attorney should have done a better job.

Glenn S. Swartzfager, with the Office of Capital Post-Conviction Counsel, contends Burns did not make a “knowing and intelligent waiver” of his constitutional right to present mitigating evidence at sentencing.

That’s the argument Swartzfager said they want to make in a post-conviction relief petition in the trial court.

Defendants offer mitigating evidence in hopes of convincing a jury to impose a sentence other than death.

“We think he’s got brain damage. He began using drugs, including inhaling Freon, gasoline and paint thinner when he was 10 years old,” Swartzfager said. “Between that and his history of head injuries, he should be tested for brain damage and that’s never been told.”

Burns can still file appeals with federal courts and the U.S. Supreme Court.

“There are other avenues, I don’t know which one we will take at this point, if any,” Swartzfager said.