Boise, ID (CBS2) — The Idaho Supreme Court has denied the appeal filed by Thomas Creech to stay his execution.

Creech has been on Idaho's death row since 1995 when he was convicted for the murder of fellow inmate David Jensen.

Creech argued in his appeal that his sentence was unlawful based on the U.S. Constitution and the Idaho Constitution which prohibits cruel and unusual punishment.

The district court dismissed the appeal based on Idaho Code section 19-2719 and that Creeche's post-conviction petition was untimely because there were no triggering events in the 42 days before the appeal was filed. The Supreme Court upheld the district court's judgment on the basis that Idaho Code section 19-2719 allows for sua sponte dismissals without notice in capital cases.

Creech's Attorney Deborah A. Czuba said:

"We are disappointed that the Idaho Supreme Court chose not to answer the question of whether it’s unconstitutional for Idaho to execute someone who was sentenced to death by a judge without a jury when it’s the last state in the country putting such people to death. The court’s decision doesn’t change the fact that the country has put this practice behind it, and it doesn’t change the fact that the very judge who sentenced Tom to death now opposes his execution because it would just be an “act of vengeance.” Three members of the Parole Commission rightly chose mercy in part because both the judge and the prosecutor are against an execution. We will continue to fight to keep the government from killing a harmless and deeply remorseful old man who is beloved by the prison staff that will have to execute him.

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