Pavatt v. Carpenter, 928 F.3d 906

Background

James Pavatt convicted in Oklahoma of first-degree murder and conspiracy; jury found two aggravators (remuneration and HAC) and recommended death; OCCA affirmed convictions and sentence on direct appeal.
Facts: Pavatt had an affair with Brenda Andrew; Rob Andrew was shot twice with a 16‑gauge shotgun in his garage; evidence included 911 calls, ballistics linking shells, missing shotgun, Brenda’s conduct/flight, and Pavatt’s behavior (threats, travel to Mexico, forged documents).
Pavatt filed state postconviction petitions and a federal §2254 habeas petition; district court denied relief and denied a COA; Tenth Circuit granted a COA on several issues and a panel later reversed as to the death sentence based on an Eighth Amendment “as-applied” HAC challenge.
The court granted rehearing en banc, asked supplemental briefing, and focused on exhaustion/ procedural‑bar issues for Pavatt’s as-applied challenge to Oklahoma’s HAC aggravator and several ineffective-assistance claims.
En banc court held Pavatt’s Eighth Amendment as-applied HAC challenge procedurally barred (unexhausted / anticipatorily barred), rejected other habeas claims on the merits or as procedurally defaulted, vacated the panel opinion, affirmed the district court, and denied an additional COA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for HAC aggravator	Pavatt: evidence did not show torture, gratuitous violence, or conscious suffering beyond typical homicide; two shotgun blasts were independently fatal.	State: evidence (med. examiner, 911 calls, witness testimony, defensive acts) could support a reasonable juror finding conscious suffering; Jackson review requires deference.	Affirmed OCCA: evidence sufficient under Jackson; federal habeas denied on this claim.
As-applied Eighth Amendment challenge to HAC	Pavatt: OCCA applied HAC overbroadly and failed to follow its narrowing precedents, making aggravator unconstitutional as applied.	State: claim was not fairly presented/exhausted in state courts and thus is procedurally barred; respondent did not waive exhaustion.	En banc: as-applied Eighth Amendment claim unexhausted and subject to procedural bar; not reached on merits.
Adequacy of jury instruction on HAC (required finding of conscious suffering)	Pavatt: trial court failed to instruct jury it must find conscious physical suffering beyond a reasonable doubt.	State: instruction matched prevailing OCCA law at trial; claim was waived/ procedurally barred in state postconviction; alternative merits rejection.	Procedurally barred by OCCA under §1089(D)(8); even on merits, similar instructions were held constitutionally adequate in Tenth Circuit precedents.
Ineffective assistance of counsel (trial and appellate) regarding mitigation and victim-impact evidence	Pavatt: trial counsel failed to investigate and present mitigation and failed to object to pervasive victim-impact evidence; appellate counsel ineffective for not raising these.	State: claims were successive/postconviction-barred under Oklahoma law; Martinez/Trevino exceptions do not apply here; OCCA reasonably denied or deemed waived.	Claims largely procedurally barred; where reviewed (photograph issue) the OCCA/ district court rulings were not an unreasonable application of Strickland; no relief granted.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (Due process requires evidence sufficient for any rational trier of fact to find elements beyond reasonable doubt)
Ring v. Arizona, 536 U.S. 584 (aggravators operate as functional elements requiring jury finding)
Williams v. Taylor, 529 U.S. 362 (AEDPA deference standards for federal habeas review)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Martinez v. Ryan, 566 U.S. 1 (narrow equitable exception to procedural default for unpreserved IAC claims in initial-review collateral proceedings)
Trevino v. Thaler, 569 U.S. 413 (extension of Martinez where state system structure prevents raising IAC on direct appeal)
Maynard v. Cartwright, 486 U.S. 356 (Eighth Amendment requires narrowing construction of vague aggravators)
Kernan v. Hinojosa, 136 S. Ct. 1603 (AEDPA exhaustion and state adjudication principles)