NEW ORLEANS — The Louisiana Supreme Court said Sunday a man convicted of raping and killing a New Orleans advertising account executive is not entitled to a later date of execution because a preliminary injunction he won last week didn't last long enough.

Jessie Hoffman had cited a portion of Louisiana law that says a 30- to 45-day delay is warranted if any federal or state court grants a stay of execution or a governor grants a reprieve. Hoffman is due to die by nitrogen hypoxia on Tuesday.

The justices said the provision kicks in only if the execution is actually delayed.

"When a federal or state court grants a stay of execution that is dissolved before the execution date, the execution may proceed on the date originally fixed," the justices wrote in a 5-2 decision that was unsigned.

U.S District Judge Shelly Dick granted Hoffman a preliminary injunction last week so he could raise claims that asphyxiation by nitrogen gas could be a cruel or unusual punishment. Federal courts in Alabama, and the U.S. Supreme Court, have allowed gassing prisoners.

Also last week, the 5th U.S. Circuit Court of Appeals overturned Dick's order and said she had overstepped her bounds. 

The state Supreme Court said Sunday that when a stay is almost immediately reversed, the execution on the original date.

"The ... injunction was immediately vacated well in advance of the March 18 execution date," Justice Jay McCallum wrote in a concurring opinion. "Therefore, I join the majority in full agreement that this court should not stay this execution and certainly, should not order that a new execution date be set."

Justices Piper Griffin and John Michael dissented. Griffin wrote that questions remain on whether executions using nitrogen hypoxia violate the Louisiana Constitution, and Guidry said Dick was within her right to stop the execution, and that Hoffman should be given time to seek another review.

WBRZ previously reported that Hoffman requested to die either by firing squad or by drinking a deadly drug cocktail, which is similar to a combination used in assisted suicides and not permitted in Louisiana.

Lethal injections that are allowed in the state have been blocked by pharmaceutical companies and Louisiana no longer has a working electric chair. 

Hoffman, who is a Buddhist, claims that death by nitrogen hypoxia will not allow him to practice his religion's meditative breathing during his last moments of life.