By Kim Palmer
CLEVELAND, Jan 13 (Reuters) - A challenge to Ohio's new two-drug execution protocol was rejected by a federal judge on Monday, clearing the way for the state to put to death this week a man convicted of a 1989 rape and murder.
Dennis McGuire, 53, is due to die on Thursday by a lethal combination of a sedative, midazolam, and a pain killer, hydromorphone. He will be the first person in the United States to be executed with the new drug combination.
Ohio, like many other states, was forced to change its protocols for lethal injections because the manufacturer of pentobarbital has banned its sale for executions. The execution is to be carried out at an Ohio state prison.
McGuire's attorneys had argued that using the untried drug combination would put him at a substantial risk of severe pain, violating his right to be free of cruel and unusual punishment.
U.S. District Judge Gregory Frost said McGuire had failed to demonstrate a substantial risk that he would experience severe pain from the new mix of drugs.
"This is not to say that the court is convinced that the execution will be pain free or even complication free," Frost wrote. "There is always a possibility of human error or unfortunate misadventure."
A defense expert, Dr. David Waisel, had testified that the planned dosage of drugs would cause McGuire to suffer from a terrifying inability to obtain breath for up to five minutes because the inmate has had breathing problems since 2009.
Prosecutors said the U.S. Constitution did not demand a pain-free execution and a state expert, Dr. Mark Dershwitz, said McGuire possibly could feel euphoria when the midazolam is administered and most likely would not experience terror.
The Ohio parole board unanimously voted against recommending clemency for McGuire and Ohio Republican Governor John Kasich denied McGuire's request for clemency.
Ohio death row inmate, Ronald Phillips, had been scheduled to be the first person executed in the United States using the two-drug combination, but he was granted a stay while Ohio assesses whether his non-vital organs or tissues can be donated to his mother or possibly others. (Reporting by Kim Palmer Editing by David Bailey)