WASHINGTON (CNN) -- An Ohio death row inmate who says he is too overweight to be executed took his plea to the Supreme Court on Friday.
Richard Cooey, 41, and an accomplice were convicted of the 1986 murders of two college students.
Richard Cooey is scheduled to die by lethal injection Tuesday and has exhausted most of his state and federal appeals. Gov. Ted Strickland earlier Friday denied the 41-year-old prisoner's clemency petition. Cooey murdered two college students in 1986.
The justices were expected to decide whether he should receive a stay of execution, and whether to address the larger constitutional claims over when a convicted person is medically unfit for capital punishment.
His lawyers have argued that the inmate-- at 5-foot-7 and 267 pounds -- is "morbidly obese," and has gained about 70 pounds since his incarceration at age 19. Prison food and confinement in his cell for 23 hours a day, limiting his opportunities for exercise, contributed to his weight problem, his legal team said in recent court filings.
Cooey also says regular medication he takes for migraines will weaken the effectiveness of an anesthetic used in the a three-drug cocktail administered during execution. He says his veins are weakened because of his health issues, and the lethal drugs would amount to cruel and unusual punishment.
In 2003, one day before Cooey was scheduled to die, a judge stopped his execution on issues unrelated to his health claims.
A federal appeals court ruled Thursday that Cooey waited too long to raise the medical issues, saying he "knew of and could have filed suit over vein access prior to July 2005."
Cooey and a then-17-year-old accomplice were convicted of the brutal murders of Wendy Offredo and Dawn McCreery, students at the University of Akron. The men had been tossing concrete slabs onto Interstate 77, and one of them struck Offredo's car.
Pretending to rescue the women, Cooey and Clinton Dickens took them to a remote field, according to prosecutors. There, the students were subjected to 3½ hours of rape, torture, stabbings and fatal bludgeonings. Cooey had carved an "X" into the stomachs of both women, prosecutors said.
Each man blamed the other for delivering the fatal blows, but both were convicted of murder. Dickens received a life sentence because of his age.
Cooey tried to escape from death row in 2005, when corrections officials said he constructed a ladder from magazines and bedsheets in an effort to scale the barrier around an outdoor recreation area.
At an August clemency hearing, Jon Offredo, brother of one of the victims, said, "Our family has never gotten an apology from Richard Cooey. We've gotten blatant lies and excuses. Is an apology too much to ask? How could he commit such a heinous act and not feel regret?"
But Cooey's lawyer, Dana Cole, said his client is sorry for his crimes.
The high court has not offered clear guidelines on what medical standards need to be met before an inmate is eligible for death. But in a case five years ago, the justices allowed inmates to at least make a claim that their specific physical or medical issues could be cause to block an execution.
The high court had sided with a convicted Alabama killer who claimed his veins were so damaged from years of drug abuse that executioners might have to cut deeply into his flesh to administer the deadly drugs.
Writing for the unanimous court, then-Justice Sandra Day O'Connor said the court was not going to "open the floodgates to all manner of method-of-execution challenges," as Alabama feared. "Our holding is extremely limited." That inmate is still on death row.
Richard Dieter of the Death Penalty Information Center, a data-resource group that opposes capital punishment, said the Supreme Court indicated that "how you're going to be executed is a civil rights matter, the same as if you were discriminated [against] on the basis of race or gender or something like that."
A Washington state killer was given a reprieve in 1994 after claiming he was too obese to hang. Mitchell Rupe at one time was more than 425 pounds, but weight-loss surgery in prison had reduced that to 275 pounds over the years. Subsequent legal efforts to execute him failed. He died in prison two years ago from a long illness.
The Ohio case is Cooey v. Strickland.
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