BIRMINGHAM, Ala. (WIAT) — Ahead of an Alabama death row inmate’s scheduled execution next week, a federal district court judge will must reconsider his disability claim.

On Friday, the Eleventh Circuit Court of Appeals vacated an earlier ruling by District Court Judge Emily Marks that dismissed Willie B. Smith’s claim on technical grounds.

“Upon review, and with the benefit of oral argument,” the appeals court stated, “we conclude that the district court erred because Smith sufficiently alleged standing in his complaint. Accordingly, we vacate the district’s sua sponte dismissal and remand for the consideration of the preliminary injunction motion on the merits.”

Smith, who has an IQ of 70, was convicted of the 1991 murder of Sharma Ruth Johnson, the sister of a Birmingham police detective. Smith’s attorneys claim prison officials violated his rights under the Americans with Disabilities Act when they did not provide him a reasonable accommodation to allow him to understand he had a 30-day period to opt into execution by nitrogen suffocation.

An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States. Execution through nitrogen suffocation was approved by the Alabama Legislature in 2018, making Alabama the third state in the country– including Oklahoma and Mississippi– to have authorized its use.

While the lower court is now required to rule on the preliminary injunction, is it still undecided whether Smith’s execution will proceed on Thursday, Oct. 21. However, if the injunction is granted by Marks, the execution will be delayed until Smith’s disability claim has been adjudicated.

Before Marks dismissed Smith’s claim on technical grounds in late September, the issue was scheduled for trial in 2022.