NASHVILLE, Tenn. (AP) — A Tennessee death row inmate is appealing a state trial court’s dismissal of his request to be declared intellectually disabled, which would make him ineligible for execution.

Earlier this year, Senior Judge Walter Kurtz ruled that federal courts had previously determined Byron Black was not intellectually disabled and therefore was ineligible to have the decision considered once again.

Kurtz handed down his decision even though Nashville’s top prosecutor and Black’s lawyers agreed he should not be put to death due to his intellectual disability.

On Wednesday, Black’s attorneys filed a motion asking the Tennessee Court of Criminal Appeals for a hearing to prove that executing Black would would violate the state’s Constitution.

“The trial court’s refusal to let him prove this under current law, if allowed to stand, would permit the state to knowingly and willfully violate the law by executing someone who is intellectually disabled,” said Kelley Henry, Black’s attorney, in a statement.

For more than a year, Black’s attorneys have argued the 65-year-old should be spared under a 2021 law that made Tennessee’s prohibition against executing people with intellectual disability retroactive, pointing out there is a different standard in place now than in 2004 — when the court found Black did not meet the now-obsolete definition of “mental retardation.” Previously, Tennessee had no mechanism for an inmate to reopen a case to press an intellectual disability claim.

Black was convicted by a Nashville court in the deaths of girlfriend Angela Clay, 29, and her daughters Latoya, 9, and Lakesha, 6. Prosecutors said he was in a jealous rage when he shot the three at their home. At the time, Black was on work release while serving time for shooting and wounding Clay’s estranged husband.

The inmate had been scheduled to be executed in August, but in May, Republican Tennessee Gov. Bill Lee paused all executions through the remainder of the year after he called off a separate execution in April due to an “oversight” in preparations for the lethal injection. Lee has appointed former U.S. Attorney Ed Stanton to review circumstances that led to the failure, which the state has said included a lack of required testing for endotoxins in the drugs.

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