Divided Panel Grants Partial Relief to Capital Habeas Petitioner

Pavatt v. Royal, 859 F.3d 920 (6/9/17) (Okl.) (Published) - The 10th affirms the murder conviction but overturns the Oklahoma jury's finding that the murder was especially heinous, atrocious or cruel ("HAC") and so imposed the death penalty. First the good news. A divided 10th (Judges Hartz & Kelly) holds the Oklahoma Criminal Court of Appeals ("OCCA") issued an adjudication contrary to clearly established federal law under the stringent AEDPA standard when it held the state presented sufficient evidence that the murder was HAC. The 10th finds that evidence the shooting victim may have endured a bit of conscious physical suffering before dying was not enough to distinguish the case from many other murders where the victim didn't die instantly. The cruel & unusual punishment clause requires much more channelling of the jury's discretion so it would not be so related to chance. The OCCA acted contrary to constitutional law because it only addressed whether the evidence matched the state standard, (which the 10th indicates has been slipping away from S. Ct. precedent), and ignored the stiffer, anti-arbitrariness, narrowing constitutional standard. The 10th left it to the district court to decide what relief should be granted where the jury also found an unchallenged aggravating circumstance. Judge Briscoe dissents. She feels Mr. Pavatt procedurally defaulted the claim. Perhaps helpfully for our Johnson cases, the majority refuses to consider the procedural issue, because the state didn't raise it on appeal. Judge Briscoe also thinks the OCCA did consider the constitutional standard and it was enough to combat arbitrariness that the victim may have suffered for several minutes before dying. On the helpful side, Judge Briscoe thinks Hurst v. Fla. 136 S. Ct. 616 (2016), requires resentencing by a jury, and prohibits reweighing by the OCCA.

As for the conviction, the 10th says Mr. Pavatt did not preserve two of his ineffective-assistance-of-counsel ("IA"")issues in federal district court. For one of those issues he only mentioned it in one sentence buried under a heading that didn't mention the issue. For the third IA issue, Mr. Pavatt couldn't prove enough prejudice regarding failure to object to admission of photographs of the deceased before his death.