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Alabama asks 11th US Circuit Court of Appeals to allow execution of Tommy Arthur next month

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MONTGOMERY, Alabama — Alabama has asked an appellate court to let the state execute inmate Tommy Arthur next month, in what would be the state's first lethal injection using a new drug combination.

The Alabama Supreme Court scheduled Arthur for execution on Feb. 19. However, a federal judge ruled that a 2012 stay of execution issued by the 11th U.S. Circuit Court of Appeals for Arthur remains in place.

Arthur was sentenced to die for the 1982 murder-for-hire of a Muscle Shoals man.

Lawyers for the state attorney general's office on Thursday asked the 11th U.S. Circuit Court of Appeals to lift the 2012 stay of execution, arguing that it applied only to Arthur's previously set execution date and Arthur's challenge to the lethal injection procedure the state used at that time.

Alabama in September adopted a new drug combination that used midazolam hydrochloride as the sedative given to render a prisoner unconscious at the start of the execution.

"The district court is acting in a manner that revives an expired stay issued by this Court without undertaking any factual inquiry. Arthur has not submitted any affidavits or evidentiary materials dealing with midazolam," lawyers for the state wrote.

State lawyers argued the 2012 stay automatically dissolved at midnight on March 29, 2012, when Arthur's execution warrant expired.

Arthur's lawyers argue the new drugs should not be used until a court has time to review them.

U.S. District Judge Keith Watkins in his order last week criticized what he called the legal "gamesmanship" of both the state in seeking to proceed with Arthur's execution and Arthur's legal team in seeking to avoid it.

Arthur has challenged the state's various drug combinations as potentially cruel and unusual punishment.

Watkins said the 2012 stay was issued to resolve the question of whether a change in the first drug used in lethal injections -- at that time from sodium thiopental to pentobarbital -- "constituted a 'significant' change to Alabama's lethal injection protocol." He said now the state was trying to proceed with another new drug combination.

"The question is, after all the twists and turns, may one reasonably conclude that the Circuit intended that Arthur be executed under an unlitigated protocol. In view of the mandate of the Circuit, the answer is no," Watkins wrote.

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