MONTGOMERY, Ala. (WHNT) — Alabama State officials could soon decide whether or not the untested method of execution by nitrogen hypoxia could be used for the first time ever in place of lethal injection.

A federal judge has ruled that someone representing either the Alabama Attorney General’s Office, the Alabama Department of Corrections or another state agency will have to definitively say if the state is ready to use the new method by Thursday, September 15 at 5 p.m.

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According to, the order given by U.S. District Judge R. Austin Huffaker Jr. says that the AG’s Office “shall file an affidavit or declaration of Commissioner John Q. Hamm, Attorney General Steve Marshall, or other appropriate official with personal knowledge, definitively setting forth whether or not the (state) can execute (Alan Miller) by nitrogen hypoxia on September 22, 2022.”

Miller, now 57, was convicted of killing three men in Shelby County during a workplace shooting spree on August 5, 1999. Lee Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancy were killed.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, was signed into law as an allowable option for inmates waiting to be executed. The new method has been authorized by Alabama and two other states for executions but as of September 2022, has never been used by a state.

After Governor Ivey signed the bill, 50 inmates out of the 177 on Alabama’s Death Row chose to die by the new method by filling out a form distributed throughout the prison.

Miller filed a lawsuit recently that claims a correctional officer didn’t turn in his form requesting the change to his execution method four years ago. In’s article, Miller claims in a court affidavit that he signed the form requesting the change, and gave it back to the correctional officer – but was denied a copy of the form or the chance to have it notarized.

On Monday, Deputy State Attorney General James Houts told Judge Huffaker that it is “very likely” the method could be available for the execution of Miller on Sept. 22, if the judge blocks the use of lethal injection.

Houts said the protocol “is there,” but that the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Attorneys for Miller say that the State lost his signed form requesting the change, while the AG’s Office claims there isn’t any evidence proving he actually completed the form.

The 57-year-old is requesting his scheduled lethal injection execution to be called off and his request to use the nitrogen hypoxia method to be honored.