En Banc Court Denies Capital Petitioner's Challenge to Especially Heinous Aggravating Factor

Pavatt v. Carpenter, 2019 WL 2622145 (10th Cir. June 27, 2019): On rehearing en banc, the court reverses the prior panel decision, which had granted relief to the capital habeas petitioner with respect to his death sentence and remanded to the district court for further proceedings. The respondent filed a petition for rehearing en banc. In this decision, the court reverses the panel’s decision holding that the Oklahoma Court of Criminal Appeals did not apply a constitutionally acceptable interpretation of Oklahoma’s especially heinous, atrocious, or cruel aggravator in determining that the aggravator was supported by sufficient evidence on the grounds that the petitioner’s challenge to the aggravator was procedurally barred because it could have been raised on direct appeal. The court also rejected other claims as lacking merit.

Judges Hartz, joined by Kelly and Lucero, dissented. Judge Hartz observed that Oklahoma’s especially heinous, atrocious or cruel aggravator could be applied if the victim was conscious for some period of time, even a few minutes, after the fatal blow and experienced some pain during that time. Thus, “the very act of committing the murder makes one eligible for the death penalty unless the victim was rendered unconscious immediately upon receiving the fatal blow” and therefore “no fair-minded jurist could think that this requirement distinguishes in a principled manner those deserving the death penalty from the many first-degree murderers who do not.” As for the exhaustion issue, Judge Hartz would have found that the state waived the exhaustion defense.