CALGARY - An execution date is to be set next week for the only Canadian on death row in the United States, but Ronald Smith's lawyer intends to ask for an immediate stay.

Smith, 53, was convicted of fatally shooting two cousins, Harvey Madman Jr. and Thomas Running Rabbit, while he was high on drugs and alcohol near East Glacier, Mont., in 1982.

He refused a plea deal that would have seen him avoid death row but spend his life in prison. Three weeks later, he pleaded guilty, then asked for and was given a death sentence.

But Smith, who is from Red Deer, Alta., later had a change of heart and has been on a legal roller-coaster for the last 25 years. He has already been sentenced to death four times and had the order overturned on three occasions.

The U.S. Supreme Court refused to hear his final appeal, so it has been sent back to the State of Montana to set another date for execution.

District Judge John Larson signed an order Monday setting the hearing date for Nov. 3, in Deer Lodge, Mont.

But lawyer Greg Jackson said it's not absolutely guaranteed that an execution date will be set next week. He said an outstanding lawsuit, filed in 2008 by the American Civil Liberties Union on behalf of his client, challenges the lethal injection procedure the state uses in executions.

The ACLU contends that death by lethal injection is unconstitutionally cruel and unusual punishment.

"That is on hold by reason of the fact that the state dismantled its death chamber and until a new one is established and we can look at the protocol and the physical setup, that can not go forward," said Jackson in an interview from Helena, Mont.

"We're hopeful. We will definitely have to request the stay of any execution date pending the resolution of the lethal injection challenge."

The request for a delay in setting the execution date will happen at the Nov. 3 hearing, said Jackson. He hopes Larson grants the stay but said there are no guarantees.

"I think from a legal standpoint the stay has to be issued," said Jackson. "But he is the judge and in the end he can do whatever he wants to along those lines."

If that fails, then the matter will be taken to either the Montana Supreme Court or to the judge who is overseeing the ACLU challenge.

Regardless of what happens, Jackson said work will begin immediately on the petition asking for clemency that will go to the Board of Parole and Pardons and ultimately to Montana Gov. Brian Schweitzer.

The petition is expected to be filed within 30 days of the next court date.

Jackson said his client, who will be leaving the prison for the first time in 15 years when he attends next week's hearing, is doing as well as can be expected.

"He's doing remarkably well under the circumstances. He's resilient in terms of being able to remain as positive as can be under the circumstances," Jackson said.

"Obviously when you get down to this stage where the options are very limited, that was a major landmark in terms of his cases. Now it's the setting of an execution date and applying for clemency."

Canadian courts forced Stephen Harper's Conservative government to seek clemency for Smith last year after Ottawa initially balked at stepping in. Canada's consul general, Dale Eisler, met with the governor to make the request in June.

The Canadian government also has the option to make an argument at the clemency hearing.