ATLANTA (AP) — Georgia’s highest court on Wednesday declined to hear an appeal filed for a man on death row claiming that his execution would be unconstitutional because he has cognitive impairments that cause him to function like a young child.

Lawyers for Virgil Delano Presnell Jr. had argued in a filing with the Georgia Supreme Court that Presnell suffered brain damage caused by his mother’s heavy alcohol use during pregnancy.

The case was one of two pending before the state high court for Presnell, who killed an 8-year-old girl and raped her 10-year-old friend in May 1976 and had been scheduled to be executed last month.