BATON ROUGE — Louisiana officials on Monday asked a federal judge to throw out death row inmate Todd Wessinger’s legal challenge to his upcoming execution by nitrogen gas, saying they will allow him to die by the alternative method he previously requested.

Wessinger faces execution for killing two restaurant employees during a 1995 robbery in Baton Rouge. He filed a lawsuit to challenge the state’s protocols for nitrogen hypoxia and two-drug lethal injection. In his lawsuit, his lawyers argue that both risk cruel and unusual punishment, which is banned by the Eighth Amendment.

In new filings, the state argues that the case should be dismissed saying that the state does not intend to utilize the two-drug injection protocol and that Wessinger cannot sue over nitrogen hypoxia if he voluntarily declines the option he requested—single injection by the euthanasia drug pentobarbital.

Turning down his own requested execution method, the state alleges, turns Wessinger’s lawsuit into an improper delay tactic.

Louisiana Attorney General Liz Murrill filed the request to dismiss on Monday on behalf of defendant Department of Public Safety and Corrections Secretary Gary Westcott.

A federal judge presiding over Todd Wessinger's plea for a new sentencing date decided last Tuesday to side with an appeals court and denied him the possibility of leniency, paving the way for his execution. 

On Nov. 19, 1995, Todd Kelvin Wessinger went into the kitchen of Calendar's Restaurant on Perkins Road and killed manager Stephanie Guzzardo, 27, David Breakwell, 46, and shot a 19-year-old. 

Wessinger, 27 at the time of the shooting, had recently been fired from the restaurant and management would not re-hire him when he asked for his job back.

He was found guilty of first-degree murder, which carries a mandatory life sentence with the possibility of execution if the district attorney's office deems it applicable. Wessinger has been on death row at Angola since his conviction.