Pavatt v. Carpenter

• Decision Date: 27 June 2019
• Docket Number: No. 14-6117,14-6117
• Citation: 928 F.3d 906
• Parties: James Dwight PAVATT, Petitioner - Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

928 F.3d 906

James Dwight PAVATT, Petitioner - Appellant,

v.Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

No. 14-6117

United States Court of Appeals, Tenth Circuit.

FILED June 27, 2019

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...