Dallas ( CNN ) Oklahoma 's first scheduled execution since last April 's controversial botched lethal injection is now in the hands of the U.S. Supreme Court to decide . Charles Frederick Warner , who was convicted in 2003 for the first-degree rape and murder of his then-girlfriend 's 11-month-old daughter in summer 1997 , is scheduled to be executed Thursday at 6 p.m. CT at the Oklahoma State Penitentiary in McAlester , about 130 miles east of Oklahoma City . Botched execution haunts inmate as death nears . Warner 's attorney , Dale Baich , filed a motion with the U.S. Supreme Court on Wednesday asking for a stay of execution , and is also asking the court to review Oklahoma 's lethal injection policies in general , after a federal appeals court rejected his appeal Monday . `` Oklahoma 's current execution protocol creates a substantial risk of severe pain , needless suffering and a lingering death , '' Baich told CNN . Jerry Massie , public information officer with the Oklahoma Department of Corrections , said Warner is scheduled to be executed using a three-drug combination of midazolam , vecuronium bromide and potassium chloride . Ohio changing execution drugs . Midazolam , a benzodiazepine that is still not FDA approved , is supposed to render the prisoner unconscious . Vecuronium bromide is a paralytic , which is meant to paralyze all muscle movement and stop respiration . Potassium chloride 's role is to activate nerves and induce cardiac arrest . Baich said the existing Supreme Court protocol and precedent under review , 2008 's Baze V. Rees case , is no longer relevant or used in any jurisdiction because different types of drugs are now used . He argued that the changes that have been made over the years are significant and `` create a significant risk of harm . '' `` Of particular concern is the use of midazolam , which has been involved in several extremely problematic executions , including the gruesome and horrific execution of Clayton Lockett in Oklahoma and the two-hour prolonged death of Joseph Wood in Arizona in July 2014 , '' Baich said . `` In Baze v. Rees , the court acknowledged that administering a paralytic and potassium chloride to someone who is not deeply unconscious would inflict an unconstitutional degree of pain and suffering . Midazolam is not capable of producing a deep , unconscious state . '' Massie said the Oklahoma Department of Corrections will have `` no further comments '' until it sees what the Supreme Court decides . Jennifer Moreno , a staff attorney with the Berkeley Law Death Penalty Clinic , said the big issue in front of the Supreme Court is whether midazolam can reliably produce the level of unconsciousness needed to complete an execution . `` It 's uncontested that administering those two drugs [ vecuronium bromide and potassium chloride ] to somebody who is conscious would cause unnecessary pain and suffering , '' Moreno said . `` The real issue is that because there are issues about midazolam 's ability to induce the necessary level of unconsciousness , and Oklahoma intends to paralyze the prisoner , that we 'll never know if he regained consciousness and experienced the effects of the second and third drugs . In all three executions where medazline has been used without a paralytic , we have seen problems that raised questions about the appropriateness of the drug . Paralyzing them does n't make the problem go away , it just hides them from us . '' Warner was originally scheduled for execution on the same night as Lockett , April 29 , 2014 , but the execution was called off after the state took 43 minutes to execute Lockett , a controversial event that was witnessed by media and state officials . Witnesses said Lockett was convulsing and writhing on the gurney , as well as struggling to speak , before officials blocked their view . The execution was halted , but Lockett eventually died . A team of medical examiners ruled that Lockett died from the state 's lethal injection . The report , which was released in September by the Oklahoma Department of Corrections , called the manner of death a `` judicially ordered execution . '' Lockett 's execution was the first time Oklahoma had used midazolam as the first element in its three-drug cocktail , the same three-drug combination that is scheduled to be used in Warner 's execution . Midazolam is generally used for children `` before medical procedures or before anesthesia for surgery to cause drowsiness , relieve anxiety and prevent any memory of the event , '' the U.S. National Library of Medicine said . `` It works by slowing activity in the brain to allow relaxation and sleep . '' Stay motions have also been filed with the U.S. Supreme Court for three other Oklahoma death row prisoners scheduled to be executed soon : Richard Glossip , scheduled to be put to death on January 29 ; John Marion Grant , scheduled to be executed on February 19 ; and Benjamin R. Cole , scheduled to be put to death on March 5 . Chemical mix and human error lead to controversial executions . CNN 's Steve Almasy contributed to this report .
Charles Frederick Warner is to be executed Thursday ; he raped and murdered an 11-month-old . His lawyer says `` protocol creates a substantial risk of severe pain , needless suffering and a lingering death ''