Appeals court denies attempt to delay David Earl Miller's execution
![David Earl Miller, sentenced to death for killing Lee Standifer.](/https/www.tennessean.com/gcdn/presto/2018/08/10/PKNS/508abf78-4f54-4293-931e-504e2539b594-Miller_David_95792.jpg?width=188&height=250&fit=crop&format=pjpg&auto=webp)
A federal appeals court has blocked an attempt to delay David Earl Miller's execution while he challenges the constitutionality of lethal injection and the electric chair.
In an opinion handed down Monday, the 6th Circuit Court of Appeals sided with the federal district court in Nashville, saying Miller's execution should move forward as scheduled Dec. 6 while his lawsuit against Tennessee's execution methods is pending.
Miller, 61, has told prison officials he wants to be executed using the electric chair. He was sentenced to death for killing 23-year-old Lee Standifer in 1981.
Miller was one of four death row inmates to file suit in November, arguing that a firing squad would be more humane than the state's three-drug lethal injection protocol or the electric chair.
Legal challenge:Tennessee death row inmates seek firing squad as alternative to electric chair, lethal injection
In order to secure a stay of execution, the appellate judges wrote, Miller would have to show he was likely to succeed in challenging Tennessee's lethal injection and electrocution methods as unconstitutionally cruel and unusual.
A majority of the judges said he had failed to do so.
"Miller (has) not shown that the new (lethal injection) protocol is 'sure or very likely' to be less humane than electrocution" the majority wrote in a 2-1 decision. "Because Miller has elected to be executed by electrocution, he has waived any challenge to his execution by that method."
But Judge Helene White dissented, saying he had shown adequate evidence that the state's lethal injection and electrocution methods were cruel and unusual enough to violate the U.S. Constitution.
The defeat at the 6th Circuit further limits Miller's options to stop his execution, although a few remain.
His attorneys have appealed the 6th Circuit's ruling to the U.S. Supreme Court, which has yet to rule on a separate request for a stay in this case.
And Gov. Bill Haslam has not decided on Miller's application for clemency, which was filed Friday.
Reach Adam Tamburin at 615-726-5986 and [email protected]. Follow him on Twitter @tamburintweets.