JACKSON, Miss. — Mississippi should not set an execution date for a former Marine Corps recruiter who has been on death row 21 years because he is part of an ongoing federal lawsuit that challenges the state’s execution method, his attorney says.

Thomas Edwin Loden Jr. was convicted in the 2000 rape and killing of a 16-year-old waitress. Loden, now 58, has been on death row since 2001, when he pleaded guilty to capital murder, rape and four counts of sexual battery.

The Mississippi attorney general’s office on Oct. 4 asked the state Supreme Court to set an execution date for Loden.

Loden’s attorney, Stacy Ferraro, filed a response Friday. In objecting to the court setting a date, she said Loden has not exhausted “all state and federal remedies” to try to avoid being put to death.

Mississippi’s most recent execution was in November.

In 2015, Loden joined four other Mississippi death row inmates in a federal lawsuit challenging the state’s lethal injection protocol. Mississippi revised the protocol to allow the use of midazolam if thiopental or pentobarbital cannot be obtained.

A federal district judge granted an injunction to prevent the state from using compounded pentobarbital or midazolam, but the 5th U.S. Circuit Court of Appeals reversed that ruling. The case is back at the district court and is unresolved.

The state attorney general’s office wrote that the continuing challenge to the lethal injection protocol “is not an impediment to setting Loden’s execution.”

Ferraro disagreed.

“It would be especially inappropriate for this Court to set an execution date while the federal court is in the midst of directly overseeing the discovery process and preparing the case for a trial on the merits,” Ferraro wrote.

According court documents, Loden kidnapped Leesa Marie Gray, who was stranded on the side of a road in northern Mississippi’s Itawamba County on June 22, 2000. The documents said Loden spent four hours raping and sexually battering Gray before suffocating and strangling her to death.

Gray disappeared on her way home from working as a waitress at her family’s restaurant in the Dorsey community. Prosecutors said she was last seen driving out of the restaurant parking lot. Relatives found her car hours later with her purse still inside and the hazard lights flashing. Her body was found the next day in Loden’s van.

Loden had joined the Marine Corps immediately after he graduated from high school in Itawamba County in 1982. He served in Operation Desert Storm and went to recruiter school in 1998. Loden started operating the Marines’ recruiting office later that year in Vicksburg, Mississippi.

During Loden’s sentencing hearing after he pleaded guilty, he did not cross examine state witnesses, did not object to exhibits that prosecutors showed and did not offer any evidence to help his own case, the attorney general’s office wrote.

Loden filed several appeals of his conviction, and those were unsuccessful.

An execution last November was Mississippi’s first in nine years. A lethal injection was given to David Neal Cox, who had pleaded guilty to killing his estranged wife and sexually assaulting her young daughter as her mother lay dying in 2012.

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