PIERRE, S.D. (KELO) — The South Dakota Supreme Court has denied to stop the planned execution of Charles Rhines on Monday.

The state’s high court made the decision Monday morning. His legal team has appealed this decision to the Supreme Court of the United States. That makes now three cases open in SCOTUS.

Rhines’ execution was planned for Monday at 1:30 p.m.

Tim Bormann is chief of staff for South Dakota’s attorney general. He said the state is waiting to hear back from SCOTUS before moving forward with the execution.

“SCOTUS is aware of the imminent nature of the case and is working accordingly,” Bormann said.

The state filed a response around 11:30 a.m.

In it, they argue “Rhines is not entitled to a stay because he cannot show a significant possibility of succeeding on the merits.”

The state also argues this issue is a state issue, not a federal issue.

“It is time for him to be punished for this killing. Equity howls against delay in this case,” the state wrote in briefs filed in SCOTUS.

Rhines’ legal team responded to the state’s brief on Monday afternoon after the scheduled start time for the execution.

“The unavoidable truth is that no state court has actually decided the constitutional claim that Rhines has brought in this action,” his team wrote.

Rhines had appealed Judge Jon Sogn’s Thursday decision to the South Dakota Supreme Court.

Sogn’s order hinges not on the substance whether the drug meets the standard of short-acting-barbiturate or ultra-short-acting-barbiturate, but rather a legal principle called Res Judicata.

Basically, because another court had already looked at this issue in the past, it cannot be pursued further.

“It is highly doubtful that the real purpose of this suit is Rhines’ desire to die by the use of thiopental instead of pentobarbital as the barbiturate used in the two-drug protocol. Instead, the real purpose behind his claim is likely to see a delay of his execution,” Sogn wrote in his opinion.

Sogn wrote that in 2011, Rhines knew about this and could have brought a challenge eight years ago.

Rhines’ legal time filed the appeal late Thursday. They were asking the South Dakota Supreme Court to answer three questions:

  • Whether the trial court erred in denying application for preliminary injunction and stay of execution?
  • Whether the trial court erred in concluding the claims are barred by res judicata?
  • Whether Mr. Rhines has shown a strong likelihood on the merits of his causes of action?

In the briefs filed by Rhines’ legal team late Monday morning, lawyers are asking SCOTUS to answer the following questions:

  • Does Petitioner have a life and liberty interest in the choice given him such that the refusal to honor his choice violates due process?
  • Did South Dakota courts violate due process when it relied upon an extreme misapplication of res judicata law to refuse to adjudicate the merits of Petitioner’s claims?

Rhines was sentenced to death on Jan. 29, 1993. He was convicted for the murder of 22-year-old Donnivan Schaeffer during a burglary of a Rapid City donut shop.

This is a developing story.