COLUMBUS — The attorney for one of the men facing execution for a 1993 murder asked the Ohio Supreme Court on Tuesday to halt his execution because of a ruling he said could affect all death-row inmates.

Timothy J. Hoffner is to be put to death by lethal injection on May 29, 2019, for his role with Archie J. Dixon in burying Christopher Hammer, 22, alive in a wooded area in Sylvania Township.

Hoffner’s federal public defender, Stephen A. Ferrell, cited a recent ruling in Marion County Common Pleas Court in which a judge threw out a death sentence in an unrelated case.

The judge determined that Ohio’s 1981 sentencing law is unconstitutional. That judge cited a January ruling by the U.S. Supreme Court that held that Florida’s sentencing system relegated juries to an advisory role in death sentencing while judges independently weighed the factors in favor of and against imposing death.

That, the nation’s high court said, violated a defendant’s Sixth Amendment right to trial by jury.

The motion for Mr. Hoffner claims Ohio’s law has the same problem, something that could affect all 138 people on the state’s death row.

“It would be unconscionable if Ohio executed Hoffner and, subsequently, the trial court’s ruling [in the Marion case] proved to be correct,” Mr. Ferrell wrote. “No death prisoner’s epitaph should say he was executed after a statutory defect was recognized but before such defect was corrected. The risk of that unconscionable result alone warrants a stay in this case.”

Mr. Ferrell compared the Marion case, which is under appeal, to the 1978 Ohio case that invalidated the state’s sentencing law and cleared death row.

The Ohio Supreme Court already rejected an argument raising the U.S. Supreme Court ruling in another case, but the Marion judge determined the arguments in the two cases are not the same.

Evy Jarrett, Lucas County assistant prosecutor, disagreed, saying the state Supreme Court’s ruling did address this issue.

“Ohio’s scheme does not have the same constitutional infirmity ...,” she said. “The aggravating circumstances that make somebody eligible for the death penalty are still in the province of the jury.”

Ohio’s latest moratorium on carrying out executions expires at the end of this year. The next scheduled execution is that of Ronald Phillips, of Summit County, on Jan. 12. The line for the death chamber at the Southern Ohio Correctional Facility in Lucasville is now 27 inmates long extending into 2020.

The state has struggled to find the drugs it would prefer to use, either the powerful sedative pentobarbital or the short-acting barbiturate thiopental sodium, because foreign manufacturers that own them have refused to make them available for executions.

Efforts to offer legal incentives for compounding pharmacies to re-create the drugs or to import them have failed.

Ohio’s last execution was in January, 2014, when a two-drug combination, since abandoned, was used. Witnesses described Dennis McGuire, of Montgomery County, as struggling against his restraints and making choking sounds in an unusually long execution. The state has since changed its lethal injection protocol to a yet unused single-drug method.

Both Hoffner and Dixon have exhausted their usual state and federal appeals. Dixon is scheduled to die on March 20, 2019.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.

First Published August 31, 2016, 4:00 a.m.