Pavatt v. Trammell

Decision Date01 May 2014
Docket NumberCase No. CIV-08-470-R
CourtUnited States District Courts. 10th Circuit. Western District of Oklahoma
PartiesJAMES DWIGHT PAVATT, Petitioner, v. ANITA TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent.

ANITA TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent.

Case No. CIV-08-470-R


Dated: May 1, 2014


Petitioner, James Dwight Pavatt, a state court prisoner, has filed a Petition for a Writ of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 49.2 Petitioner, who is represented by counsel, is challenging the convictions entered against him in Oklahoma County District Court Case No. CF-2001-6189. Tried by a jury in August and September of 2003, Petitioner was found guilty of Murder in the First Degree (Count 1) and Conspiracy to Commit a Felony (Count 2). Finding that the murder was committed for remuneration or the promise of remuneration and that it was also especially heinous, atrocious, or cruel, the jury sentenced Petitioner to death on Count 1. On Count 2, the jury set punishment at ten years imprisonment and a $5,000.00 fine (O.R. XI, 2045-46, 2062-63; O.R. XII, 2249-51).

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Petitioner has presented fifteen grounds for relief. Doc. 49. Respondent has responded to the Petition and Petitioner has replied. Docs. 69 and 73. In addition to his Petition, Petitioner also filed motions for discovery and an evidentiary hearing, to which multiple responses, replies, and further supplemental pleadings have been filed. Docs. 43, 55, 70, 74, 78, 85, and 86. After a thorough review of the entire state court record (which Respondent has provided), the pleadings filed herein, and the applicable law, the Court finds that, for the reasons set forth below, Petitioner is not entitled to his requested relief.

I. Procedural History.

In Case No. D-2003-1186, Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals (hereinafter "OCCA"). In a published opinion, Pavatt v. State, 159 P.3d 272 (Okla. Crim. App. 2007), the OCCA affirmed. Petitioner sought review of the OCCA's decision by the United States Supreme Court. His petition for writ of certiorari was denied on February 19, 2008. Pavatt v. Oklahoma, 552 U.S. 1181 (2008). Petitioner also filed two post-conviction applications, both of which the OCCA denied. Pavatt v. State, No. PCD-2009-777 (Okla. Crim. App. Feb. 2, 2010) (unpublished); Pavatt v. State, No. PCD-2004-25 (Okla. Crim. App. Apr. 11, 2008) (unpublished).

II. Facts.

On November 20, 2001, Rob Andrew was shot and killed in the garage of the Oklahoma City home he had once shared with his wife, Brenda Andrew. Rob and Brenda had been separated for a couple of months and divorce proceedings were underway. Rob had

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come to the marital home that Tuesday evening to pick up his kids3 for the upcoming Thanksgiving holiday. According to Brenda, who also suffered a gun shot wound that evening, she and Rob were both shot by two masked assailants who confronted them in the garage and then fled. However, Brenda's unusual behavior and version of the event were immediate indicators to police that there was more to the story. Events, both before and after Rob's death, showed that Brenda wanted Rob dead so that she could collect his $800,000 life insurance policy and she enlisted Petitioner to help her carry out her plan. Petitioner was not only the Andrews' insurance agent but Brenda's lover.

Petitioner and the Andrews attended the same church, and Petitioner and Brenda taught a 5th and 6th grade Sunday School class together. It is not surprising then that it was at church where relationship issues first came to light. Church members noticed Brenda dressing inappropriately and acting inappropriately with Petitioner, who was also married at the time.4 As a result, on September 19, 2001, Petitioner and Brenda were asked by church leaders to step down from their teaching positions. Both Petitioner and Brenda were upset by this. Brenda was upset that Rob would not defend her and/or leave the church over it. Petitioner felt that Rob was involved behind the scenes. Right after it happened, Petitioner, referring to Rob, told a church member, "I hate the son of a bitch" (J. Tr. VI, 1538).

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In late September 2001, Brenda kicked Rob out of the house and he moved into an apartment. The day after he moved out, Rob told a close friend that he was afraid that Brenda had finally found someone to kill him and that someone was Petitioner.5 Shortly thereafter, Brenda filed for divorce. Even though it was apparent that Brenda was being unfaithful and Rob knew that she had been unfaithful to him before,6 Rob continued to express his love for Brenda and maintained the hope that they could reconcile. In the divorce, the two most troublesome issues were custody of the kids and Rob's $800,000 life insurance policy. Brenda was very possessive of the kids and did not want Rob to have any relationship with them. Regarding the life insurance policy, Brenda was adamant that she remain the designated beneficiary.

After Rob moved out and the divorce was underway, the relationship between Petitioner and Brenda was much more transparent. A next door neighbor recalled seeing Petitioner's truck at the Andrew residence with increased frequency. In fact, it was particularly common to see Petitioner's truck in the Andrew driveway shortly after Brenda had put the kids on the school bus. Petitioner, who had told his adult daughter, Janna Larson,

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that he was having a sexual relationship with Brenda, later told her of his plans to marry Brenda and have a child with her. Meanwhile, Brenda continued to relay her hatred for Rob. Mr. Higgins, one of Brenda's former paramours, testified that after the divorce was filed, Brenda told him that she wished Rob would just die so she could get the money and go on with her life.

On October 26, 2001, someone cut the brake lines to Rob's car. Rob noticed a problem with the brakes when he first got into the car and he took it straight to the dealership. The dealership confirmed that his brake lines had in fact been cut. Rob called 911 from the dealership to report what he believed was attempted murder. That morning, Rob received three phone calls, one on his cell phone and two at work. In all three calls, he was told that he needed to get Norman Regional Hospital as soon as possible because Brenda and/or his family were there.7 Petitioner's daughter, Janna, admitted to making two of the phone calls at the request of Petitioner. After listening to the third call, Janna told police that she believed it was her dad disguising his voice. Twice, once before Rob's death and once after, Petitioner told Janna to never tell anyone about making those phone calls to Rob. Also, Janna testified that around the same time as the brake incident, her father told her that "nuttier than a fruitcake" Brenda had asked him to murder Rob or have someone do it. Janna testified that they both laughed it off and joked about it. However, despite the nature of

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Brenda's request and Petitioner's assessment of her mental status, Janna noted that Petitioner continued in his relationship with Brenda.

The brake incident escalated Rob's fear that Petitioner and Brenda were trying to kill him and he immediately began efforts to remove Brenda as the beneficiary of his $800,000 life insurance policy. Rob wanted to make sure that if anything happened to him, the insurance proceeds would go to his children. When Rob asked Petitioner about changing the beneficiary, Petitioner told him he could not change it because he was not the owner of the policy. When Rob went over Petitioner's head and asked Petitioner's boss whether he could change the beneficiary, Rob was told that as of October 26, 2001, he was the owner of the policy and that he could change the beneficiary. When Petitioner found out that Rob had called his boss, he was furious and told Rob, "[I]f you think you have problems with Brenda you haven't seen anything until you messed with me" (J. Tr. VII, 1859-60).

The $800,000 life insurance policy in question was sold to Rob by Petitioner, a Prudential agent, on March 25, 2000. As issued, Rob was the owner and the insured, Brenda was the primary beneficiary, and the Andrew children were the contingent beneficiaries. Although both Petitioner and Brenda asserted that the ownership of the policy had been changed to Brenda on a Prudential form dated March 22, 2001,8 Prudential's corporate office

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never received the original form.9 Although Rob ultimately wanted to change the primary beneficiary to his brother as trustee of a trust for the benefit of his kids, the matter was at least temporarily resolved by a temporary order entered in the divorce case on November 1, 2001. Per court ruling, the kids were to be named the primary beneficiaries with Brenda as the designated trustee.10

On November 20, 2001, Rob was looking forward to picking up his kids and spending the long Thanksgiving holiday weekend with them. Although Rob had also hoped to do some quail hunting that weekend with his brother, his continued efforts to acquire his 16-gauge shotgun from Brenda were unsuccessful. At 6:00 that evening, Rob sat in the driveway of the marital residence talking on his cell phone to a friend while he waited for Brenda to get the kids ready to go. When the garage door began to rise, Rob told his friend that he had to go. Shortly thereafter, shots were fired.


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