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Pavatt v. Carpenter

United States Court of Appeals, Tenth Circuit

June 27, 2019

JAMES DWIGHT PAVATT, Petitioner - Appellant,
v.
MIKE CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma D.C. No. 5:08-CV-00470-R.

          Sarah M. Jernigan (Patti Palmer Ghezzi, with her on the briefs), Assistant Federal Public Defenders, Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellant.

          Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General, with her on the briefs), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.

          Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and CARSON, Circuit Judges.

          Briscoe, Circuit Judge.

         Petitioner James Pavatt was convicted by an Oklahoma jury of first degree murder and conspiracy to commit first degree murder. Pavatt was sentenced to death for the first degree murder conviction and ten years' imprisonment for the conspiracy conviction. After exhausting his state court remedies, Pavatt filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Pavatt's petition, and also denied Pavatt a certificate of appealability (COA). Pavatt sought and was granted a COA by this court with respect to five issues.

         The original hearing panel affirmed the district court's denial of relief with respect to Pavatt's convictions, but in a divided decision reversed the denial of relief with respect to Pavatt's death sentence and remanded to the district court for further proceedings. In doing so, the panel majority concluded that the Oklahoma Court of Criminal Appeals (OCCA) "did not apply a constitutionally acceptable interpretation of Oklahoma's [especially heinous, atrocious, or cruel (HAC)] aggravator in determining [on direct appeal] that the aggravator was supported by sufficient evidence." Pavatt v. Royal, 894 F.3d 1115, 1132 (10th Cir. 2017) (Pavatt Federal Appeal).[1]

         Respondent filed a petition for rehearing en banc.[2] We granted respondent's petition and directed the parties to file supplemental briefs addressing a number of questions concerning Pavatt's challenges to the HAC aggravator. Having received those briefs and after additional oral arguments addressing those questions, we conclude that Pavatt's Eighth Amendment "as-applied" challenge to the HAC aggravator-the issue that the original panel majority relied on in granting him relief-is, for a number of reasons, procedurally barred. We also conclude that the other issues raised by Pavatt on appeal lack merit. Consequently, we vacate the prior panel opinion and affirm the district court's denial of federal habeas relief with respect to both Pavatt's convictions and death sentence. We also deny Pavatt's request for an additional COA.

         I

         Factual background

         The background facts of Pavatt's crimes were outlined by the OCCA in resolving Pavatt's direct appeal:

[Pavatt] and his co-defendant, Brenda Andrew, were each charged with conspiracy and first-degree capital murder following the shooting death of Brenda's husband, Robert ("Rob") Andrew, at the Andrews' Oklahoma City home on November 20, 2001. [Pavatt] met the Andrews while attending the same church, and [Pavatt] and Brenda taught a Sunday school class together. [Pavatt] socialized with the Andrews and their two young children in mid-2001, but eventually began having a sexual relationship with Brenda. Around the same time, [Pavatt], a life insurance agent, assisted Rob Andrew in setting up a life insurance policy worth approximately $800, 000. [Pavatt] divorced his wife in the summer of 2001.
In late September, Rob Andrew moved out of the family home, and Brenda Andrew initiated divorce proceedings a short time later.
Janna Larson, [Pavatt]'s adult daughter, testified that in late October 2001, [Pavatt] told her that Brenda had asked him to murder Rob Andrew. On the night of October 25-26, 2001, someone severed the brake lines on Rob Andrew's automobile. The next morning, [Pavatt] and Brenda Andrew concocted a false "emergency," apparently in hopes that Rob would have a traffic accident in the process. [Pavatt] persuaded his daughter to call Rob Andrew from an untraceable phone and claim that Brenda was at a hospital in Norman, Oklahoma, and needed him immediately. An unknown male also called Rob that morning and made the same plea. Rob Andrew's cell phone records showed that one call came from a pay phone in Norman (near Larson's workplace), and the other from a pay phone in south Oklahoma City. The plan failed; Rob Andrew discovered the tampering to his car before placing himself in any danger. He then notified the police.
One contentious issue in the Andrews' divorce was control over the insurance policy on Rob Andrew's life. After his brake lines were severed, Rob Andrew inquired about removing Brenda as beneficiary of his life insurance policy. However, [Pavatt], who had set up the policy, learned of Rob's intentions and told Rob (falsely) that he had no control over the policy because Brenda was the owner. Rob Andrew spoke with [Pavatt]'s supervisor, who assured him that he was still the record owner of the policy. Rob Andrew then related his suspicions about [Pavatt] and Brenda to the supervisor. When [Pavatt] learned of this, he became very angry and threatened to harm Rob for putting his job in jeopardy. At trial, the State presented evidence that in the months preceding the murder, [Pavatt] and Brenda actually attempted to transfer ownership of the insurance policy to Brenda without Rob Andrew's knowledge, by forging his signature to a change-of-ownership form and backdating it to March 2001.
On the evening of November 20, 2001, Rob Andrew drove to the family home to pick up his children for a scheduled visitation over the Thanksgiving holiday. He spoke with a friend on his cell phone as he waited in his car for Brenda to open the garage door. When she did, Rob ended the call and went inside to get his children. A short time later, neighbors heard gunshots. Brenda Andrew called 911 and reported that her husband had been shot. Emergency personnel arrived and found Rob Andrew's body on the floor of the garage; he had suffered extensive blood loss and they were unable to revive him. Brenda Andrew had also suffered a superficial gunshot wound to her arm. The Andrew children were not, in fact, packed and ready to leave when Rob Andrew arrived; they were found in a bedroom, watching television with the volume turned up very high, oblivious to what had happened in the garage.
Brenda was taken to a local hospital for treatment. Her behavior was described by several witnesses, experienced in dealing with people in traumatic situations, as uncharacteristically calm for a woman whose husband had just been gunned down. One witness saw Brenda chatting giddily with [Pavatt] at the hospital later that night.
Rob Andrew was shot twice with a shotgun. A spent shotgun shell found in the garage fit a 16-gauge shotgun, which is a rather unusual gauge. Andrew owned a 16-gauge shotgun, but had told several friends that Brenda refused to let him take it from the home when they separated. Rob Andrew's shotgun was missing from the home when police searched it. One witness testified to seeing Brenda Andrew engaging in target practice at her family's rural Garfield County home about a week before the murder. Several 16-gauge shotgun shells were found at the site.
Brenda told police that her husband was attacked in the garage by two armed, masked men, dressed in black, but gave few other details. Brenda's superficial wound was caused by a .22-caliber bullet, apparently fired at close range, which was inconsistent with her claim that she was shot at some distance as she ran from the garage into the house. About a week before the murder, [Pavatt] purchased a .22-caliber handgun from a local gun shop. On the day of the murder, [Pavatt] borrowed his daughter's car and claimed he was going to have it serviced for her. When he returned it the morning after the murder, the car had not been serviced, but his daughter found a .22-caliber bullet on the floorboard. In a conversation later that day, [Pavatt] told Larson never to repeat that Brenda had asked him to kill Rob Andrew, and he threatened to kill Larson if she did. He also told her to throw away the bullet she had found in her car.
Police also searched the home of Dean Gigstad, the Andrews' next-door neighbor. There they found evidence that someone had entered the Gigstads' attic through an opening in a bedroom closet. A spent 16-gauge shotgun shell was found on the bedroom floor, and several .22-caliber bullets were found in the attic itself. There were no signs of forced entry into the Gigstads' home. Gigstad and his wife were out of town when the murder took place, but Brenda Andrew had a key to their home. The .22- caliber bullet found in Janna Larson's car was of the same brand as the three .22-caliber bullets found in the Gigstads' attic; the .22-caliber bullet fired at Brenda and retrieved from the Andrews' garage appeared consistent with them in several respects. These bullets were capable of being fired from the firearm that [Pavatt] purchased a few weeks before the murder; further testing was not possible because that gun was never found. The shotgun shell found in the Gigstads' home was of the same brand and odd gauge as the 16-gauge shell found in the Andrews' garage. Ballistics comparison showed similar markings, indicating that they could have been fired from the same weapon. Whether these shells were fired from the 16- gauge shotgun Rob Andrew had left at the home was impossible to confirm because, as noted, that gun also turned up missing.
In the days following the murder, [Pavatt] registered his daughter as a signatory on his checking account, and asked her to move his belongings out of his apartment. He obtained information over the Internet about Argentina, because he had heard that country had no extradition agreement with the United States. Larson also testified that after the murder, Brenda and [Pavatt] asked her to help them create a document, with the forged signature of Rob Andrew, granting permission for the Andrew children to travel with Brenda out of the country. Brenda also asked Larson to transfer funds from her bank account to Larson's own account, so that Larson could wire them money after they left town.
Brenda Andrew did not attend her husband's funeral. Instead, she and [Pavatt] drove to Mexico, and took the Andrew children with them. [Pavatt] called his daughter several times from Mexico and asked her to send them money. Larson cooperated with the FBI and local authorities in trying to track down [Pavatt] and Brenda. In late February 2002, having run out of money, [Pavatt] and Brenda Andrew re-entered the United States at the Mexican border. They were promptly placed under arrest.

Pavatt v. State, 159 P.3d 272, 276-78 (Okla. Crim. App. 2007) (paragraph numbers and footnotes omitted) (Pavatt I).

         State trial proceedings

         On November 29, 2001, the State of Oklahoma filed an information in the District Court of Oklahoma County charging Pavatt and Brenda Andrew jointly with first degree murder. An amended information was filed on July 19, 2002, charging Pavatt and

         Brenda Andrew with one count of first degree murder and one count of conspiracy to commit first degree murder. At that same time, the State filed a bill of particulars alleging the existence of three aggravating circumstances: (1) that Pavatt committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration; (2) the murder `was especially heinous, atrocious, or cruel; and (3) the existence of a probability that Pavatt would commit criminal acts of violence that would constitute a continuing threat to society.

         The case against Pavatt proceeded to trial on August 25, 2003.[3] At the conclusion of the first-stage evidence, the jury found Pavatt guilty of both counts charged in the amended information. At the conclusion of the second-stage evidence, the jury found the existence of two aggravating circumstances: (1) that Pavatt committed the murder, or employed another to commit the murder, for remuneration or the promise thereof; and (2) that the murder was especially heinous, atrocious, or cruel. The jury also found that these aggravating circumstances outweighed the mitigating circumstances and it recommended that Pavatt be sentenced to death for the first degree murder conviction.

         Pavatt was sentenced in accordance with the jury's recommendations on each count of conviction.

         Pavatt's direct appeal

         Pavatt filed a direct appeal asserting eighteen propositions of error. The OCCA rejected all of Pavatt's propositions of error and affirmed his convictions and sentences. Pavatt I, 159 P.3d at 297. Pavatt filed a petition for rehearing, which was denied by the OCCA.

         Pavatt filed a petition for writ of certiorari with the United States Supreme Court. The Supreme Court denied Pavatt's petition on February 19, 2008. Pavatt v. Oklahoma, 552 U.S. 1181 (2008).

         Pavatt's application for post-conviction relief

         On April 17, 2006, Pavatt filed with the OCCA an application for post-conviction relief asserting three propositions of error. Approximately two years later, on April 11, 2008, the OCCA issued an unpublished opinion denying Pavatt's application. Pavatt v. State, No. PCD-2004-25 (Okla. Crim. App. Apr. 11, 2008) (Pavatt II).

         The filing of Pavatt's federal habeas petition

         Pavatt initiated these federal habeas proceedings on May 5, 2008, by filing a motion for appointment of counsel. The district court granted that motion and appointed counsel to represent Pavatt. On April 1, 2009, Pavatt's appointed counsel filed a petition for writ of habeas corpus asserting fifteen grounds for relief. In his petition, Pavatt conceded that certain of the claims asserted therein were "newly developed" and "m[ight] require further exhaustion." ROA, Vol. 1 at 243 (Dist. Ct. Docket No. 42 at 213). As a result, Pavatt requested that his petition "be held in abeyance so that he [could] return to state court to accomplish any necessary exhaustion." Id. At no point, however, did the district court stay the case or otherwise hold it in abeyance to allow Pavatt to exhaust his state court remedies.

         Pavatt's second application for post-conviction relief

         On September 2, 2009, while his federal habeas petition was pending in federal district court, Pavatt filed with the OCCA a second application for post-conviction relief asserting six propositions of error. On February 2, 2010, the OCCA issued an unpublished opinion denying Pavatt's second application. Pavatt v. State, No. PCD-2009-777 (Okla. Crim. App. Feb. 2, 2010) (Pavatt III).

         The denial of Pavatt's federal habeas petition and the instant appeal

         On May 1, 2014, the district court issued an order denying Pavatt's petition. On that same date, the district court entered final judgment in the case and also issued an order denying Pavatt a COA with respect to all of the issues raised in his habeas petition.

         Pavatt filed a notice of appeal on June 2, 2014. In a case management order issued on November 24, 2014, we granted Pavatt a COA on the following issues: (1) "[w]hether there was sufficient evidence to support the [HAC] aggravator (raised in Ground 10 of . . . Pavatt's habeas petition)"; (2) "whether the trial court's failure to provide an adequate instruction to the jury that it must find 'conscious physical suffering' beyond a reasonable doubt before finding that the murder was 'especially heinous, atrocious, or cruel' violated . . . Pavatt's constitutional rights to a fair trial, a reliable sentencing determination, and due process (raised in Ground 11 of . . . Pavatt's habeas petition)"; (3) "[w]hether there was constitutionally ineffective assistance of trial counsel regarding the investigation of mitigating evidence or the presentation of a meaningful case for life imprisonment (raised in Ground 15, Claim I.I., of . . . Pavatt's habeas petition)"; (4) "whether appellate counsel was constitutionally ineffective in failing to raise a claim that trial counsel was ineffective" regarding the investigation of mitigating evidence or the presentation of a meaningful case for life imprisonment; and (5) "[w]hether trial counsel provided constitutionally ineffective assistance regarding the introduction of a camping video, live photographs of the victim, or testimony regarding the victim's good traits (raised in Ground 15, Claim I.E., of . . . Pavatt's habeas petition), and whether appellate counsel was constitutionally ineffective in failing to raise a claim that trial counsel was ineffective in these regards." Case Mgmt. Order at 1-2.

         The original hearing panel affirmed the district court's denial of relief with respect to Pavatt's convictions, but in a divided decision reversed the denial of relief with respect to Pavatt's death sentence and remanded to the district court for further proceedings. Respondent filed a petition for rehearing en banc, which we granted.[4]

         II

         Standard of review

         "The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to 'exhaus[t] the remedies available in the courts of the State.'" Kernan v. Hinojosa, 136 S.Ct. 1603, 1604 (2016) (per curiam) (alteration in original) (quoting 28 U.S.C. § 2254(b)(1)(A)). "If the state courts adjudicate the prisoner's federal claim 'on the merits,' § 2254(d), then AEDPA mandates deferential, rather than de novo, review . . . ." Id. Specifically, this court cannot grant relief unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d)(1)-(2).

         "'Clearly established Federal Law' refers to the Supreme Court's holdings, not its dicta." Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)), petition for cert. filed, No. 18-8666 (U.S. Mar. 29, 2019). "A state-court decision is only contrary to clearly established federal law if it 'arrives at a conclusion opposite to that reached by' the Supreme Court, or 'decides a case differently' than the Court on a 'set of materially indistinguishable facts.'" Id. (quoting Williams, 529 U.S. at 412-13). "But a state court need not cite the Court's cases or, for that matter, even be aware of them." Id. "So long as the state-court's reasoning and result are not contrary to the Court's specific holdings, § 2254(d)(1) prohibits [this court] from granting relief." Id. (citing Early v. Packer, 537 U.S. 3, 9 (2002) (per curiam)).

         "A state court's decision unreasonably applies federal law if it 'identifies the correct governing legal principle' from the relevant Supreme Court decisions but applies those principles in an objectively unreasonable manner." Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). "Critically, an 'unreasonable application of federal law is different from an incorrect application of federal law.'" Id. (quoting Williams, 529 U.S. at 410 (emphasis in original)). "[A] state court's application of federal law is only unreasonable if 'all fairminded jurists would agree the state court decision was incorrect.'" Id. (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).

         "Finally, a state-court decision unreasonably determines the facts if the state court 'plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim.'" Id. (quoting Byrd v. Workman, 645 F.3d 1159, 1170-72 (10th Cir. 2011)). "But this 'daunting standard' will be 'satisfied in relatively few cases.'" Id. (quoting Byrd, 645 F.3d at 1172).

         Sufficiency of evidence challenge to the HAC aggravator

         In Proposition One of his appellate brief, Pavatt challenges the sufficiency of the evidence supporting the HAC aggravator found by the jury at the conclusion of the second-stage proceedings. Aplt. Br. at 20. According to Pavatt, the evidence presented at his trial was "constitutionally insufficient" to establish that the murder of Rob Andrew was "especially heinous, atrocious, or cruel," and, he asserts, "[t]he OCCA's determination" to the contrary was "unreasonable." Id. at 20-21.

         a) Clearly established federal law applicable to the claim

         It is clearly established that "the fundamental protection of due process of law" requires that the evidence presented at a criminal trial, viewed in the light most favorable to the prosecution, be sufficient to allow "any rational trier of fact [to] have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Because most states' "enumerated aggravating factors" for capital cases "operate as 'the functional equivalent of an element of a greater offense, '" Ring v. Arizona, 536 U.S. 584, 609 (2002) (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19 (2000)), this same due process requirement applies to any aggravating factor alleged by the prosecution and found by the jury in a capital case. Thus, in sum, a state capital defendant seeking federal habeas relief from his or her death sentence can assert a sufficiency-of-the-evidence challenge to any of the aggravating factors found by the jury.

         b) The OCCA's general construction of the HAC aggravator

         Before we examine whether and how the OCCA addressed Pavatt's sufficiency-of-evidence challenge to the HAC aggravator, we pause briefly to review how the OCCA has generally construed the HAC aggravator. In Stouffer v. State, 742 P.2d 562, 563 (Okla. Crim. App. 1987), the OCCA expressly "restrict[ed] . . . application" of the HAC aggravator "to those murders in which torture or serious physical abuse is present." More specifically, the OCCA "identified two kinds of cases in which 'torture or serious physical abuse' [will be deemed to be] present: those characterized by the infliction of 'great physical anguish' and those characterized by the infliction of 'extreme mental cruelty.'" Medlock v. Ward, 200 F.3d 1314, 1324 (10th Cir. 2000) (Lucero, J., concurring) (quoting Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995)). "In the mental cruelty context, the OCCA has emphasized that the torture required for finding the 'heinous, atrocious, or cruel' aggravator must produce mental anguish in addition to that which of necessity accompanies the underlying killing." Id. (quotation marks omitted). And, with respect to the physical anguish branch of its test, the OCCA has held that, "[a]bsent evidence of conscious physical suffering by the victim prior to death, the required torture or serious physical abuse standard is not met." Battenfield v. State, 816 P.2d 555, 565 (Okla. Crim. App. 1991).

         In Nuckols v. State, 805 P.2d 672, 674 (Okla. Crim. App. 1991), the OCCA held that the HAC aggravator "contemplates a two-step analysis." The first step of this analysis, the OCCA stated, requires the jury to determine whether the death of the victim was preceded by torture or serious physical abuse. Id. "Once this foundational assessment is made," the OCCA stated, "then the jury may apply the definitions given to them . . . to measure whether or not the crime can be considered to have been heinous, atrocious or cruel." Id.

         c) The OCCA's resolution of Pavatt's challenge to the HAC aggravator

         In his direct appeal, Pavatt challenged the sufficiency of the evidence supporting the HAC aggravator. Proposition XIV of Pavatt's direct appeal brief was titled: "There was insufficient evidence to support the 'especially heinous, atrocious or cruel' aggravating circumstance." Direct Appeal Br. at iv (capitalization omitted). In the body of his direct appeal brief, Pavatt argued, in support of Proposition XIV, that "[t]he evidence does not support the fact that the murder was 'especially' heinous, atrocious or cruel." Id. at 47. He in turn quoted the following statement made by his defense counsel during the second-stage closing arguments: "'To some degree I suppose all homicides are heinous, atrocious or cruel. I think that's the reason why our legislature has inflicted the term especially to that phrase.'" Id. Lastly, Pavatt commented briefly on the evidence presented by the state in support of the HAC aggravator:

Interestingly, the State attempts to prove the existence of the aggravating circumstance on the basis of the information provided by Brenda Andrew in her 911 call to the police. (Tr. 3763) The medical examiner's testimony was that either of the two wounds could have been fatal. Death occurred in a matter of minutes. ...

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