The opinion
OPINION DENYING SUBSEQUENT AP-PPLICATION FOR POST-CONVICTION RELIEF AND EMERGENCY STAY OF EXECUTION
LUMPKIN, Presiding Judge.
1 Petitioner Jimmy Dale Bland was convicted of First Degree Malice Aforethought Murder (21 0.98.1991, § 701.7), Case No. CF-96-90, in the District Court of Tillman County. The jury found the existence of two (2) aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. This Court affirmed the judgment and sentence in Bland v. State, 2000 OK CR 11 , 4 P.3d 702 . Petitioner's first application for post-conviction relief was denied by this Court in Bland v. State, Case No. PCD-1999-1200, opinion not for publication, June 26, 2000. The United States Supreme Court denied certiorari in Bland v. Oklahoma, 531 U.S. 1099 , 121 S.Ct. 832 , 148 L.Ed.2d 714 (2001). A second Application for Post-Conviction Relief was denied by this Court in an unpublished opinion on April 17, 2008, Bland v. State, Case No. PCD-2002-969. On April 23, 2007, the United States Supreme Court denied Petitioner's petition for writ of certiorari following the affirmance of his conviction and sentence on habeas review by the United States Court of Appeals for the Tenth Cireuit,. Bland v. Sirmons, 459 F.3d 999 (10th Cir.2006); Bland v. Sirmons, -- U.S. ---, 127 S.Ct. 2117 , 167 L.Ed.2d 828 (2007). Upon the denial of cer-tiorari, the State of Oklahoma requested this Court set an execution date. This Court set Petitioner's execution for June 26, 2007. This third Application for Post-Conviection Relief was filed on June 14, 2007.
12 Pursuant to 22 O.8.8upp.2006, § 1089(C), the only issues that may be raised in an application for post-conviction relief are those that were not and could not have been raised in a direct appeal; and support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. This Court may not consider the merits of or grant relief based on any subsequent application for post-conviction relief unless it contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented in a previously considered application because the factual or legal basis for the claim was unavailable. 22 0.8.Supp.2006, § 1089(D)(8).
T3 In his sole ground for relief, Petitioner asserts he is terminally ill with advanced Tung eancer, and has at best, less than a year to live. Petitioner argues that the "evolving standards of decency which inform the Eighth Amendment and the Oklahoma Constitutional bans against cruel and unusual punishment and cruel or unusual punishment will be violated by executing a terminally ill inmate." In its response, the State asserts Petitioner's claim fails to satisfy the requirements for post-conviction review because his claim does not support a conclusion that the outcome of the trial would have been different but for the alleged errors or that he is factually innocent.
{4 Attachments provided by Petitioner support his assertion concerning his current diagnosis and life expectancy. 1 These doeu-ments also show Petitioner's claim could not have been presented at the direct appeal or a previous post-conviction application. Therefore, Petitioner has met the first requirement for post-conviction review. 2
*1078 15 We now must determine whether Petitioner's claim for relief supports a conclusion either that the outcome of the trial would have been different but for the errors or that Petitioner is factually innocent. Petitioner makes no claim of trial court errors or even factual innocence. Instead he argues that the Supreme Court's recently developing Eighth Amendment jurisprudence naturally extends to a constitutional prohibition against executing the terminally ill.
16 As an aid in interpreting the language in the federal constitution prohibiting "cruel and unusual punishments," the United States Supreme Court has "established the propriety and affirmed the necessity of referring to 'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual." Roper v. Simmons, 543 U.S. 551, 561 , 125 S.Ct. 1183, 1190 , 161 L.Ed.2d 1 (2005) citing Trop v. Dulles, 356 U.S. 86, 100-101 , 78 S.Ct. 590 , 2 L.Ed.2d 630 (1958) (plurality opinion). 3 The Supreme Court has used this framework of analysis to find that some classes of individuals are less culpable and therefore not deserving of the death penalty. See Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir.2006). 4 These classes of individuals, for which execution is constitutionally prohibited, include the mentally incompetent (Ford v. Wainwright, 477 U.S. 399 , 106 S.Ct. 2595 , 91 L.Ed.2d 335 (1986)); those under 16 years of age at the time of the offense (Thompson v. Oklahoma, 487 U.S. 815 , 108 S.Ct. 2687 , 101 L.Ed.2d 702 (1988)); the mentally retarded (Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002)), and those who committed first degree murder before the age of 18 (Roper v. Simmons, 543 U.S. at 578 , 125 S.Ct. at 1200 ). The Supreme Court has not included terminally ill individuals in the class for which execution is constitutionally prohibited. In the absence of any supporting authority from federal or state courts, Petitioner has not shown that "evolving standards of decency" prohibit the execution of terminally ill persons.
T7 Petitioner attempts to include himself in the above list by comparing his situation to that of a mentally incompetent person. However, a review of the medical records provided by Petitioner shows he has not been found legally incompetent. Petitioner cites to an incident in early June 2007, where he became increasingly unresponsive during transport to the hospital for chemotherapy. However, the records also indicate Petitioner was ultimately revived. The records indicate possible causes for his unresponsiveness were an overdose of barbiturates or a brain seizure brought about by the cancer. However, neither conclusion mentioned Petitioner's general competence. Further, there is no indication from the medical records that the medications taken by Petitioner affect his general competence. 5 Therefore, Petitioner's claim that his execution would be the same as executing one who is mentally incompetent is unavailing.
18 In this Court's review of the Eighth and Fourteenth Amendments and corollary provisions of the Oklahoma Constitution, we have looked at "whether the punishment at issue is proportionate to the offense, offends contemporary standards of decency, and has legitimate punishment objectives". Wood v. State, 2007 OK CR 17, ¶ 31 , 158 P.3d 467, 477-78 ; Malicoat v. State, 2006 OK CR 25, ¶ 6 , 137 P.3d 1234, 1236 (citing Roper v. *1079 Simmons as authority). Petitioner's illness does not lessen his culpability for his crime or obviate his legally imposed punishment of death. Neither does his illness lessen the retributive or deterrent purposes of the death penalty. Petitioner has not shown he is entitled to an indefinite stay of execution during his illness in order that he might die a natural death. While the current diagnosis estimates Petitioner's life expectancy at less than one year, the medical records indicate he is currently undergoing treatment which has the possibility of impacting the length of his life expectancy. To find it improper to carry out the sentence of death on a terminally ill person would mean the death sentence could not be carried out before the natural expiration of a person's life. This conclusion would clearly be against Supreme Court precedent and would forever prevent the application of a legally authorized punishment.
T9 Therefore, as Petitioner has failed to show his claim supports a conclusion either that the outcome of the trial would have been different but for the errors or that he is factually innocent, and as there is no established authority from the Supreme Court or this Court supporting his claim, we find Petitioner's Third Application for Post-Conviction Relief and Request for Emergency Stay of Execution are both DENIED. While we have determined there is no legal right to stay Petitioner's execution, we find this is an issue of merey more appropriately presented to the Governor via the Pardon and Parole Board and clemency proceedings.
1 10 Additionally, Petitioner has filed in his direct appeal, Case No. D-1998-152, a Motion for Stay of Execution and to Rescind Execution Date on the Ground that as Administered, Death by Lethal Injection in Oklahoma Constitutes Cruel and Unusual Punishment in Violation of the Wight and Fourteenth Amendments and Likewise Violates the State Constitutional Proscription Against Cruel and Unusual Punishment, and Brief in Support. In this filing, Petitioner argues the state's execution procedure creates a substantial risk that he will consciously suffer or experience excruciating pain during the execution process. Petitioner also notes that pending litigation in the federal courts challenges Oklahoma's execution protocol, and asks this Court to stay any execution date until that litigation has been resolved. Petitioner recognizes this is the same claim rejected by this Court in Malicoat, 2006 OK CR 25, at ¶ 11 , 137 P.3d at 1239 , but requests that we revisit the issue. We decline Petitioner's offer and reaffirm our finding that Oklahoma's execution protocol is not cruel and unusual. Petitioner is not entitled to a stay of execution while the federal litigation is pending and his execution date remains as June 26, 2007.
C. JOHNSON, V.P.J., and A. JOHNSON, J., specially concurring.
CHAPEL and LEWIS, JJ., dissent.
. Letter from Dr. Melody Benjamin, University of Oklahoma Health Sciences Center, Hematology/Oncology Fellow (Attachment 1) and Petitioner's medical records from the University of OKkla-homa Medical Center (Attachment 2). Although Petitioner has not requested an evidentiary hearing, these ex parte affidavits would be insufficient evidence to warrant such a hearing.
. The State also argues Petitioner has not satisfied this Court's Rule 9.7(G)(3) providing that "[nlo subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for the new issue is announced or discovered". The State argues that the "logical trigger" for starting the 60 day rule is when Petitioner himself was told by doctors of the terminal nature of his cancer. We reject this argument as we find Petitioner could not have been aware of the legal significance of his illness *1078 to his death sentence. Accordingly, we find the attachments included by Petitioner support the claim that defense counsel learned of the terminal nature of the illness within the last 60 days. Therefore, we find Petitioner has satisfied the 60 day rule for review by this Court. Rule 9.7(G)(1)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007).
. Personally, with all due respect, I have searched the federal constitution and fail to find this language in it. It appears to be another penumbra we are forced to navigate when applying the text of the Constitution.
. In Allen, the United States Court of Appeals for the Ninth Circuit upheld the decision of the California Supreme Court that the Eighth Amendment did not prohibit the execution of an elderly and infirm prisoner.
. Defense counsel has not provided any support for his claim that two of the medications taken by Petitioner, Lovastatin and Metformin, can cause extreme drowsiness and mental confusion.