Army Pvt. Dwight J. Loving confessed to killing two men while robbing them near Fort Hood, Texas. The high school drop-out from Rochester, a one-time boxer, was convicted of the 1988 murders and sentenced to death.

He's still alive, one of about nine military men awaiting execution at Fort Leavenworth. On Friday, Loving lost the latest in a long line of efforts to challenge his conviction and sentence. In a lengthy opinion that included two concurrences and a dissent, the U.S. Court of Appeals for the Armed Forces rejected Loving's challenge.

That this is no ordinary case is suggested by the fact that Eugene Fidell and the well-respected National Institute for Military Justice filed an amicus brief. Loving's challenge to the military death penalty itself had previously reached the Supreme Court in 1996.

In this, most recent, challenge, Loving claimed the military officers who represented him originally were so ineffective as to cause a violation of his constitutional rights. Specifically, he now claims his legal representatives failed to bring out the mitigating factors -- his life was a mess, his father an alcoholic ex-con -- that might have caused some mercy in sentencing.

The armed forces appellate court concluded otherwise. After offering a heart-breaking rendering of the various mitigating circumstances that Loving's attorneys were able to put into the record -- Loving's father hitting the children with a baseball bat, bullets were flying through the windows -- the appellate panel determined :

"Loving has failed to demonstrate that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different."