from the United States District Court for the Western
District of Oklahoma D.C. No. 5:08-CV-00470-R.
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.
TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ,
HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID,
and CARSON, Circuit Judges.
Briscoe, Circuit Judge.
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.
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
filed a petition for rehearing en
banc. 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
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
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
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)
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
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
case against Pavatt proceeded to trial on August 25,
2003. 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.
was sentenced in accordance with the jury's
recommendations on each count of conviction.
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.
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).
application for post-conviction relief
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).
filing of Pavatt's federal habeas petition
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.
second application for post-conviction relief
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).
denial of Pavatt's federal habeas petition and the
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.
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.
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
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;
(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).
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)).
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.
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).
of evidence challenge to the HAC aggravator
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.
Clearly established federal law applicable to the claim
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.
The OCCA's general construction of the HAC
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).
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.
The OCCA's resolution of Pavatt's challenge to the
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. ...