BIRMINGHAM, Ala. (WIAT) — A federal court has dismissed a lawsuit by death row inmate Willie B. Smith that was set for trial in 2022.

Smith’s suit was dismissed on jurisdictional grounds in a ruling issued Friday by Judge Emily Marks. It claimed that Smith’s rights under the Americans with Disabilities Act were violated when prison officials did not provide him with an accommodation that facilitated his understanding of a form asking the death row inmate whether he wished to opt into execution via nitrogen hypoxia.

Smith’s IQ, according to experts, is around 70.

“A full-scale IQ score of around 70 to 75 indicates a significant limitation in intellectual functioning,” according to the American Psychological Association.

In a 2002 case, the U.S. Supreme Court ruled that executing those with such disabilities constitutes “cruel and unusual punishment” forbidden by the U.S. Constitution. The method by which Smith was deemed eligible for execution has also been ruled unconstitutional, in a case called Moore v. Texas, but the Eleventh Circuit Court of Appeals said that decision came too late to impact Smith.

“What is tragic about Mr. Smith’s case is that the decision about whether his low intellectual functioning makes him ineligible for the death penalty was based on an outdated and faulty analysis,” Montgomery-based nonprofit Equal Justice Initiative has said of the case. “It is a mere technicality that the Supreme Court set out the appropriate scientific analysis in 2017, but the Eleventh Circuit nonetheless held that Moore does not apply to Mr. Smith’s case because it was decided after the state court’s decision. The court wrote that its denial of relief on Mr. Smith’s claim was “a matter of timing.”

Execution through the use of nitrogen hypoxia was approved by Alabama’s state legislature in 2018 but required condemned inmates to opt into the method. Only two other states, Oklahoma and Mississippi, allow the practice. An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States.

In the federal district court’s latest decision, Judge Marks ruled that because the form circulated by prison officials was not required, but only aided death row inmates to opt into death by nitrogen hypoxia, an ADA accommodation was not required. Smith, she said, could have opted into the protocol “through any writing he chose.”

A lawyer for Smith, John Palombi, told CBS 42 that they plan to appeal the decision.

In 1991, Smith was convicted of murdering Sharma Ruth Johnson, the sister of a Birmingham police detective. His execution, scheduled for Oct. 21, will move forward barring further court action.