The attorney general’s office has asked a federal judge to dismiss a lawsuit filed by condemned inmate Earl Wesley Berry, who is scheduled to executed Oct. 30 by lethal injection.

Berry and four other death row inmates asked a federal judge in U.S. District Court in Greenville to prevent the state from carrying out their execution by lethal injection.

Berry is the only one of the five with a pending execution date. The other four have appeals ongoing in the federal courts, according to the attorney general’s office.

Berry and the others claim the state of Mississippi shouldn’t be carrying out executions until the U.S. Supreme Court rules on the constitutionality of lethal injections procedures.

The Mississippi Supreme Court on Thursday turned down Berry’s request to stop his execution, now scheduled for 6 p.m. on Oct. 30 at the state penitentiary at Parchman.

In documents filed Friday in federal court, Assistant Attorney General Marvin White Jr. said Berry waited for over five years, until his execution is imminent, to file a challenge to the execution procedure used in Mississippi.

“He is not entitled to wait until his execution is imminent before suing to enjoin the state’s method of carrying it out,” White wrote in court papers. “The method of execution used by the State of Mississippi has been in place for the entire 19 years that petitioner has been on death row. He cannot contend that he was unaware of the method of execution during these 19 years.”

White said other federal court decisions have disallowed such last minute attempts to avoid execution.

Berry, 48, was convicted and sentenced to death for the 1987 killing of Mary Bounds. She was beaten to death after leaving her weekly church choir practice, and her body was found off a road in Chickasaw County.

Berry alleges in the lawsuit that Mississippi’s current lethal injection procedure causes unnecessary pain and that employees administering the drugs are not properly trained.

Before the U.S. Supreme Court is a case involving two Kentucky 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. 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 that are given.

The U.S. Supreme Court is scheduled to hear the Kentucky case early next year.