ST. LOUIS (AP) – Missouri Attorney General Chris Koster’s office has appealed the stay of execution for convicted killer Allen Nicklasson, calling the federal appeals court ruling “an abuse of discretion.”

A three-judge panel of the 8th U.S. Circuit Court of Appeals granted the stay on Monday. Nicklasson was scheduled to be put to death at 12:01 a.m. on Wednesday for killing businessman Richard Drummond, who was fatally shot after stopping to help Nicklasson and two other men when their car broke down nearly two decades ago.

Late Monday, Koster’s office asked for a hearing before the full 8th Circuit in an effort to carry out the execution as scheduled, but no decision had been made on that appeal by midday Tuesday.

The appeals court panel voted 2-1 to grant the stay, citing concerns about ineffective counsel at Nicklasson’s trial and sentencing in 1996. Koster’s appeal said the panel’s “one-sentence order was an abuse of discretion because Nicklasson’s claims have no significant possibility of success on the merits.”

Nanci Gonder, a spokeswoman for Koster, said it wasn’t clear when the appeals court would decide whether or not to take up the appeal. Nicklasson’s attorney, Jennifer Herndon, did not respond to messages seeking comment Tuesday but has also asked the Missouri Supreme Court and Gov. Jay Nixon to intervene.

Missouri had been preparing for its second execution in three weeks, after going nearly three years without an execution.

Nicklasson, 41, declined interview requests this week. But in a 2009 interview with The Associated Press he recalled a childhood of abuse and mental illness. He said he had watched his mother shoot up heroin, and that she fed him Alpo dog food for dinner and once made him fight a Doberman for money.

Nicklasson, Dennis Skillicorn and Tim DeGraffenreid were returning to Kansas City after buying drugs in St. Louis in August 1994 when their car broke down on Interstate 70 near Kingdom City, Mo. When Drummond stopped to help, the men forced the 47-year-old Excelsior Springs businessman to drive west on I-70, exit and drive to a secluded area, where Nicklasson shot him twice in the head.

Nicklasson and Skillicorn stole Drummond’s car and drove to Arizona. When the vehicle broke down in the desert, they approached the home of Joseph and Charlene Babcock. Joseph Babcock was killed by Nicklasson after driving the men back to their vehicle. Charlene Babcock was killed at the couple’s home.

Both men were sentenced to life in prison for the Arizona killings. Both were sentenced to death in Missouri. Skillicorn was executed in 2009 even though Nicklasson said he was solely responsible for killing Drummond. DeGraffenreid pleaded guilty to second-degree murder and did not receive a death sentence.

Missouri carried out its first execution in three years when it put to death racist serial killer Joseph Paul Franklin on Nov. 20. It was the first execution in Missouri using a single drug, pentobarbital.

Missouri previously used a three-drug method of executions, but changed protocols after drug makers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy the Missouri Department of Corrections declines to say who makes the drug, or where.

© Copyright 2013 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.

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