Pavatt v. Royal, 894 F.3d 1115

Background

Defendant James Pavatt was convicted of first-degree murder and conspiracy for the 2001 killing of Rob Andrew; jury recommended death based on two aggravators (remuneration and HAC). Pavatt exhausted state remedies and filed a 28 U.S.C. § 2254 petition; the district court denied relief and COA was initially denied; Tenth Circuit granted COA on several issues.
Key trial evidence: Pavatt had an affair with victim’s wife Brenda; life-insurance motive; prior brake-line sabotage; forged insurance paperwork; Brenda called 911 and gave an account implying victim was conscious; victim suffered two shotgun wounds and was found clutching a bag of cans; ballistics and physical evidence tied Pavatt and Brenda to the scene; Pavatt fled to Mexico with Brenda and the children.
Habeas claims included ineffective assistance of trial and appellate counsel (failure to object to sympathy/victim-impact evidence, inadequate mitigation investigation), and constitutional challenges to the HAC ("especially heinous, atrocious, or cruel") aggravator and its instruction/ application.
The OCCA had adopted and applied a narrowing construction of Oklahoma’s HAC requiring torture or serious physical abuse, generally requiring conscious physical suffering (Cheney/DeRosa line).
The Tenth Circuit affirmed denial of habeas relief as to guilt-phase claims but reversed the sentence: it held the OCCA’s sufficiency determination for the HAC aggravator was contrary to or an unreasonable application of Supreme Court precedent and remanded for sentencing proceedings.

Issues

Issue	Pavatt's Argument	Oklahoma/State's Argument	Held
1) Ineffective assistance re: guilt-phase admission of sympathy/victim-impact evidence (video, witness praise, premortem photos)	Trial/appellate counsel failed to object or adequately preserve objections to emotional/sympathy evidence, prejudicing guilt verdict	State: many objections were preserved or procedurally defaulted; one premortem photo objection was doomed to fail under Oklahoma law; any other photo error was not prejudicial given overwhelming guilt evidence	Affirmed as to conviction: most claims procedurally barred; preserved photo claim failed for lack of prejudice or because objection would have failed under state law
2) Procedural default of several ineffective-assistance claims (timing/exhaustion)	Default should be excused (Martinez/Trevino) because initial postconviction counsel was ineffective and/or claims were not reasonably raiseable earlier	State: OCCA applied Oklahoma postconviction bar rules; claims were waived and OCCA properly denied later-filed claims	Majority treated many of these claims as procedurally barred for habeas review; concurrence would apply procedural bar more broadly and reject Martinez/Trevino exception here
3) Sufficiency of evidence for HAC aggravator (conscious physical suffering element)	Evidence was constitutionally insufficient to support HAC under a constitutionally adequate narrowing construction — medical testimony only showed possibility of brief consciousness; jury was not instructed to find conscious suffering	State/OCCA: evidence (medical testimony, 911 call, victim clutching cans) supported a reasonable inference of conscious suffering and OCCA applied its Cheney/DeRosa analysis to find HAC satisfied	Reversed as to sentence: majority held OCCA’s adjudication failed to address whether its construction of “conscious physical suffering” satisfied Eighth Amendment narrowing requirements; under AEDPA the OCCA decision was contrary to clearly established Supreme Court law and HAC cannot constitutionally be applied here; remanded for resentencing
4) Adequacy of HAC jury instruction and remedy (whether jury had to find conscious suffering beyond reasonable doubt; effect of invalid HAC)	Instruction failed to require a specific beyond-a-reasonable-doubt finding of conscious physical suffering; invalid HAC requires resentencing or reweighing	State: trial instruction tracked then-current OUJI language and OCCA precedent; OCCA reviewed sufficiency on the merits	Majority: did not need to decide the instructional-error claim after disposing HAC sufficiency (but found OCCA’s handling inadequate re: constitutional narrowing); concurrence would have rejected instructional-error and would affirm sentence; majority ordered remand for further proceedings on sentence (state to determine effect of other aggravator)

Key Cases Cited

Ring v. Arizona, 536 U.S. 584 (jury must find facts increasing maximum penalty; aggravators are elements)
Williams v. Taylor, 529 U.S. 362 (AEDPA standards; "contrary to" and "unreasonable application")
Jackson v. Virginia, 443 U.S. 307 (sufficiency-of-the-evidence standard)
Godfrey v. Georgia, 446 U.S. 420 (aggravator must be narrowed to avoid arbitrary death-penalty imposition)
Maynard v. Cartwright, 486 U.S. 356 (Oklahoma HAC language impermissibly vague absent proper narrowing)
Lafler v. Cooper, 566 U.S. 156 (state court’s failure to apply controlling federal standard can make AEDPA not a bar)
Zant v. Stephens, 462 U.S. 862 (aggravators must narrow the class eligible for death)
Gregg v. Georgia, 428 U.S. 153 (capital sentencing standards and need to channel discretion)
Furman v. Georgia, 408 U.S. 238 (death penalty procedures cannot be arbitrary)