                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                   PUBLISH
                                                                     June 9, 2017
                  UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT




JAMES DWIGHT PAVATT,

        Petitioner-Appellant,

v.                                                     No. 14-6117

TERRY ROYAL, Warden, Oklahoma
State Penitentiary,

        Respondent-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. No. 5:08-CV-00470-R)


Sarah M. Jernigan, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, (Patti Palmer Ghezzi, Assistant Federal Public Defender, Oklahoma
City, Oklahoma; and Robert R. Nigh, Jr., Tulsa, Oklahoma, with her on the
briefs), for Petitioner-Appellant.

Joshua L. Lockett, Assistant Attorney General, (E. Scott Pruitt, Attorney General
of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondent-
Appellee.


Before KELLY, BRISCOE and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.
        James Pavatt was convicted by an Oklahoma jury of first-degree murder

and conspiracy to commit first-degree murder. He was sentenced in accordance

with the jury’s recommendations to death on the first-degree-murder conviction

and ten years’ imprisonment on the conspiracy conviction. After exhausting his

state-court remedies, he filed an application for relief under 28 U.S.C. § 2254.

The district court denied the application, and also denied a certificate of

appealability (COA). See 28 U.S.C. § 2253(c)(1) (requiring COA to appeal

denial of relief under § 2254). Mr. Pavatt sought from this court and was granted

a COA on several issues. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the district court’s denial of relief with respect to his conviction, but we

reverse the denial of relief with respect to his sentence and remand to the district

court for further proceedings.

   I.      FACTUAL BACKGROUND

        The Oklahoma Court of Criminal Appeals (OCCA) summarized the crime:

               [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.



                                          2
      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

                                  3
      wound to her arm. The Andrew children were not, in fact, packed
      and ready to leave when Rob Andrew arrived [1] ; 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.



1
  In its opinion reviewing the conviction of Brenda Andrews, the OCCA corrected this
statement. There was not evidence that the bags were not packed. See Order Denying
Appellant’s Motion for Rehearing, But Ordering That The Opinion Be Corrected (Okla.
Crim. App. Sept. 11, 2017, at 3)
                                          4
       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 information
over the Internet about Argentina, because he had heard that country
had no extradition agreement with the United States. Larson also
testified that after the murder, Brenda and [Pavatt] asked her to help
them create a document, with the forged signature of Rob Andrew,
granting permission for the Andrew children to travel with Brenda
out of the country.

        Brenda also asked Larson to transfer funds from her bank
account to Larson’s own account, so that Larson could wire them
money after they left town. Brenda Andrew did not attend her
husband’s funeral. Instead, she and [Pavatt] drove to Mexico, and
took the Andrew children with them. [Pavatt] called his daughter
several times from Mexico and asked her to send them money.
Larson cooperated with the FBI and local authorities in trying to
track down [Pavatt] and Brenda. In late February 2002, having run
out of money, [Pavatt] and Brenda Andrew re-entered the United
States at the Mexican border. They were promptly placed under
arrest.

                                   5
Pavatt v. State (Pavatt I), 159 P.3d 272, 276–78 (Okla. Crim. App. 2007)

(paragraph numbers and footnotes omitted).

      On November 29, 2001, nine days after the murder, an information was

filed in state court charging Mr. Pavatt and Brenda Andrew with first-degree

murder. An amended information was filed on July 19, 2002, charging them with

one count of first-degree murder and one count of conspiracy to commit first-

degree murder. The prosecution also filed a bill of particulars alleging three

aggravating circumstances for Mr. Pavatt: (1) that he committed the murder for

remuneration or the promise of remuneration or employed another to commit the

murder for remuneration or the promise of remuneration (the remuneration

aggravator); (2) that the murder was especially heinous, atrocious, or cruel (the

HAC aggravator); and (3) that he constituted a continuing threat to society.

      Mr. Pavatt was tried separately from Ms. Andrew (who was also convicted

on both counts and sentenced to death). His trial, which began on August 25,

2003, included a guilt phase followed by a sentencing phase. The jury found him

guilty on both counts and found the remuneration and HAC aggravators. It also

found that these aggravating circumstances outweighed the mitigating

circumstances, and it recommended that Mr. Pavatt be sentenced to death on the

first-degree-murder conviction.

      Mr. Pavatt filed a direct appeal asserting 18 propositions of error. On May

8, 2007, the OCCA rejected Mr. Pavatt’s arguments and affirmed his convictions


                                         6
and sentences. See Pavatt I, 159 P.3d at 297. Mr. Pavatt’s petition for rehearing

was denied by the OCCA on June 26, and the United States Supreme Court

denied his petition for a writ of certiorari on February 19, 2008. See Pavatt v.

Oklahoma, 552 U.S. 1181 (2008).

      On April 17, 2006, while his direct appeal was pending, Mr. Pavatt filed

with the OCCA an application for postconviction relief asserting three

propositions of error (one of which, ineffective assistance of appellate and trial

counsel, included 23 subpropositions). On April 11, 2008, the OCCA issued an

unpublished opinion denying the application. See Pavatt v. State (Pavatt II), No.

PCD-2004-25 (Okla. Crim. App. Apr. 11, 2008).

      Mr. Pavatt initiated his § 2254 proceedings on May 5, 2008, by filing a

motion for appointment of counsel, which the district court granted. On April 1,

2009, his counsel filed a § 2254 application asserting 15 grounds for relief. The

application conceded that some of the claims were “newly developed” and

“m[ight] require further exhaustion.” R. Vol. 3 at 335. For that reason, Mr.

Pavatt requested that his application “be held in abeyance so that he [could]

return to state court to accomplish any necessary exhaustion.” Id. But the

district court declined to stay the case or otherwise hold it in abeyance. Briefing

in the case was completed on October 14, 2009, when Mr. Pavatt filed a reply

brief in support of his application.

      Meanwhile, on September 2, 2009, Mr. Pavatt filed with the OCCA a

second application for postconviction relief asserting six propositions of error.

                                          7
On February 2, 2010, the OCCA issued an unpublished opinion denying the

application. See Pavatt v. State (Pavatt III), No. PCD-2009-777 (Okla. Crim.

App. Feb. 2, 2010).

      On May 1, 2014, the federal district court issued an order denying Mr.

Pavatt’s § 2254 application, entered final judgment in the case, and issued an

order denying a COA with respect to all issues raised in the application.

      Mr. Pavatt filed a notice of appeal on June 2, 2014. In a case-management

order issued on November 24, 2014, we granted Mr. Pavatt a COA on the

following issues:

      A. [1] Whether there was sufficient evidence to support the
      “especially heinous, atrocious, or cruel” aggravator . . . and [2]
      whether the trial court’s failure to provide an adequate instruction to
      the jury that it must find “conscious physical suffering” beyond a
      reasonable doubt before finding that the murder was “especially
      heinous, atrocious, or cruel” violated Mr. Pavatt’s constitutional
      rights to a fair trial, a reliable sentencing determination, and due
      process . . .

      B. Whether there was constitutionally ineffective assistance of trial
      counsel regarding the investigation of mitigating evidence or the
      presentation of a meaningful case for life imprisonment . . . [,] and
      whether appellate counsel was constitutionally ineffective in failing
      to raise a claim that trial counsel was ineffective in these regards;
      and

      C. Whether trial counsel provided constitutionally ineffective
      assistance of counsel regarding the introduction of a camping video,
      live photographs of the victim, or testimony regarding the victim’s
      good traits . . . and whether appellate counsel was constitutionally
      ineffective in failing to raise a claim that trial counsel was
      ineffective in these regards.




                                         8
(Case Management Order, Nov. 24, 2014). Because we reverse on issue A[1], we

need not address issues A[2] and B. We affirm on issue C.

      II.    STANDARD OF REVIEW

      In a challenge to a state-court conviction under § 2254, “the appropriate

standard of review depends upon whether a claim was decided on the merits in

state court.” Stouffer v. Trammell, 738 F.3d 1205, 1213 (10th Cir. 2013) (citation

omitted). When, as here, the claims we must resolve on the merits were

addressed on the merits, our standard of review is governed by 28 U.S.C.

§ 2254(d), which provides:

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be
      granted with respect to any claim that was adjudicated on the merits
      in State court proceedings unless the adjudication of the claim—

             (1) resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law,
             as determined by the Supreme Court of the United States; or

             (2) resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented in
             the State court proceeding.

28 U.S.C. § 2254(d).

      “[A] state-court decision is contrary to [Supreme Court] precedent if the

state court arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law,” or “if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and arrives

at a result opposite to the [Supreme Court’s].” Williams v. Taylor, 529 U.S. 362,


                                          9
405 (2000). “On the other hand, a run-of-the-mill state-court decision applying

the correct legal rule from [Supreme Court] cases to the facts of a prisoner’s case

would not fit comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Id. at 406.

       As for the “unreasonable application” clause of § 2254(d)(1), the Supreme

Court has said, “A state-court decision that correctly identifies the governing

legal rule but applies it unreasonably to the facts of a particular prisoner’s case

certainly would qualify as a decision involving an unreasonable application of

clearly established Federal law.” Id. at 407–08 (brackets and ellipsis omitted)

(internal quotation marks omitted). “[A] federal habeas court making the

‘unreasonable application’ inquiry should ask whether the state court’s

application of clearly established federal law was objectively unreasonable.” Id.

at 409. Notably, “an unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 410. Thus, “a federal habeas court

may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly.” Id. at 411.

   III.   PAVATT’S CHALLENGES TO VERDICT OF GUILTY

       Mr. Pavatt’s sole challenge to his conviction is that his trial counsel was

ineffective in failing to object to the admission of three categories of evidence allegedly

designed to evoke sympathy for the victim, Rob Andrew: (1) a videotape showing

Mr. Pavatt and Mr. Andrew on a hunting trip, (2) “glowing accounts” of Mr. Andrew



                                             10
from his friends and family, and (3) four photographs of him taken before his death.

Aplt. Br. at 49. The first two claims are procedurally barred, and the third lacks merit.

       The claim of inadequate assistance with respect to the first two categories of

evidence was not adequately raised in federal district court. The only challenge at all

related to category 1 in Mr. Pavatt’s amended petition under § 2254 was headed:

“Counsel Failed to Object to the Admission of Live Photographs of Rob Andrew.” App.,

Vol. 3 at 317. But that section of the 216-page petition (which served as the brief in

support) does not claim ineffective assistance with respect to the video. Indeed, it begins

with the sentence, “Trial counsel objected to the admission of the video recording of the

hunting trip.” Id. In this court Mr. Pavatt argues that the trial objection to the video was

inadequate; but that claim was not made below.

       As for category 2, one sentence in the “Live Photographs” section of the petition

states, “A review of his conduct further reveals that trial counsel allowed multiple

witnesses, who were friends and family of Rob Andrew, to testify to entirely irrelevant

matters that could only raise sympathy in the minds of jurors. See Grounds 2, 7, infra.”

Id. at 318.2 But this one sentence, which is not developed further, and which is buried in

a section whose heading does not encompass the point, does not adequately preserve this




2
  Ground 2 of the petition is a Confrontation Clause challenge to alleged hearsay
introduced at trial; the word sympathy does not appear in the petition’s discussion of that
ground. Ground 7 addresses alleged prosecutorial misconduct. The petition contains a
section under that ground entitled “First Stage Victim Sympathy,” but it does not say
anything about what, if any, sympathy evidence was objected to by trial counsel. Id. at
224.
                                             11
ineffectiveness issue. The district court, not perceiving it as an issue, did not address it in

the 112-page opinion denying relief.

        Thus, the only ineffectiveness claim relating to the guilt phase of the trial that was

preserved in federal district court is that trial counsel did not adequately object to the

admission of the photographs (and that appellate counsel did not raise on appeal this

deficiency of trial counsel). Mr. Pavatt has not argued that admission of this evidence

during the guilt phase violated any federal constitutional right. The alleged

ineffectiveness was only counsel’s failure to argue that the evidence should have been

excluded under Oklahoma law. This ineffectiveness challenge clearly fails with respect

to one of the pictures (State’s Exhibit 219). In his first state postconviction petition, Mr.

Pavatt argued that his trial and appellate counsel should have objected to the admission of

the exhibit. But the OCCA rejected the argument, holding that the claim was barred by

res judicata and noting that it had sustained the admissibility of a similar photograph in a

prior case. See Pavatt II, No. PCD-2004-25 at 6 n.6. A claim of ineffective assistance

of counsel for failure to object to evidence cannot be sustained if the objection was

doomed to fail. See Williams v. Trammell, 782 F.3d 1184, 1198 (10th Cir. 2015).

       That leaves only a challenge to the failure to object to three other photographs

taken of Mr. Andrew during his life. But even if competent counsel should have objected

to the evidence, Mr. Pavatt’s ineffectiveness claim fails for lack of prejudice. To prevail

on such a claim, he must show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the [guilt phase] would have been different.”

Id. at 1197–98 (internal quotation marks omitted). We are at a total loss to see how, in

                                              12
light of the compelling evidence of guilt, the three photographs could have been a

significant factor in the verdict; and Mr. Pavatt offers no argument in support. We

therefore reject this portion of the claim on the merits.

    IV.      “HEINOUS, ATROCIOUS, OR CRUEL” (HAC) AGGRAVATOR

          At the conclusion of the second-stage proceedings the jury found the
                                                               3
murder to be “especially heinous, atrocious, or cruel.”            The jury instruction on

the HAC aggravating circumstance defined the terms as follows:

          As used in these instructions, the term “heinous” means extremely
          wicked or shockingly evil; “atrocious” means outrageously wicked
          and vile; “cruel” means pitiless, or designed to inflict a high degree
          of pain, utter indifference to, or enjoyment of, the sufferings of
          others.

          The phrase “especially heinous, atrocious, or cruel” is directed to
          those crimes where the death of the victim was preceded by torture
          of the victim or serious physical abuse.

R. Vol. 1 at 188. According to Mr. Pavatt, the evidence presented at his trial was

“constitutionally insufficient” to establish the HAC aggravator, Aplt. Br. at 21,

and the OCCA’s determination to the contrary was “contrary to or an

unreasonable application of Supreme Court law,” id. at 36.

          “To assess the sufficiency of the evidence, we first determine the elements of the

offense and then examine whether the evidence suffices to establish each element.”

Anderson-Bey v. Zavaras, 641 F.3d 445, 448 (10th Cir. 2011). Due process requires that

the evidence presented at trial, viewed in the light most favorable to the prosecution, be

3
  The jury also found the remuneration aggravator. The parties have not presented
arguments on what effect that has on the disposition of this case. We leave the matter to
the district court on remand.
                                               13
sufficient to allow a “rational trier of fact [to] have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a

capital case the aggravating factors necessary for imposition of the death penalty “operate

as the functional equivalent of an element of a greater offense.” Ring v. Arizona, 536

U.S. 584, 609 (2002) (internal quotation marks omitted).

       The elements of a state offense are ordinarily purely a matter of state law. In

reviewing a state conviction under § 2254, we do not second guess whether the state

courts have correctly interpreted their law. See Estelle v. McGuire, 502 U.S. 62, 67–68

(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”). But States do not have a totally free hand in

deciding how to define their aggravating circumstances for capital cases. The United

States Constitution sets some limits. Since the Supreme Court held in Furman v.

Georgia, 408 U.S. 238 (1972), that then-current capital-sentencing procedures were

unconstitutional, the underlying principle guiding Supreme Court doctrine has been that

“the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of

death under legal systems that permit this unique penalty to be . . . wantonly and

. . . freakishly imposed.” Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (brackets, ellipsis,

and internal quotation marks omitted). To prevent that intolerable result, discretion in

imposing the death penalty “must be suitably directed and limited so as to minimize the

risk of wholly arbitrary and capricious action.” Id. (internal quotation marks omitted).

The State must “channel the sentencer’s discretion by clear and objective standards that



                                              14
provide specific and detailed guidance, and that make rationally reviewable the process

for imposing a sentence of death.” Id. (internal quotation marks omitted).

       Thus, a defendant challenging the sufficiency of the evidence to support a capital

aggravator may, as Mr. Pavatt does here, raise both a Jackson challenge to the sufficiency

of the evidence to establish the aggravator as defined by state law and an Eighth

Amendment challenge to the constitutionality of the aggravator as so defined. Our focus

is on the Eighth Amendment challenge. This requires a thorough review of Supreme

Court precedent regarding how federal courts are required to examine a State’s

aggravating circumstances to see if they pass muster.

        We start with Gregg v. Georgia, 428 U.S. 153 (1976), where the Supreme Court

considered Georgia’s outrageously-or-wantonly-vile aggravator, which included any

murder that was “‘outrageously or wantonly vile, horrible or inhuman in that it involved

torture, depravity of mind, or an aggravated battery to the victim,’” id. at 210 (White, J.,

concurring) (quoting Georgia statute). The prevailing plurality stated that it was

“arguable that any murder involves depravity of mind or an aggravated battery.” Id. at

201 (joint opinion of Justices Stewart, Powell, and Stevens). But, in the view of those

Justices, the aggravator’s “language need not be construed in this way,” and they would

not invalidate the aggravator because “there [was] no reason to assume that the Supreme

Court of Georgia [would] adopt such an open-ended construction.” Id.; see Lewis, 497

U.S. at 775 (construing this as the holding in Gregg).

       Later, however, in Godfrey v. Georgia, 446 U.S. 420 (1980), the Court took

another look at the State’s application of the aggravator. The prevailing plurality (two

                                             15
other Justices would have set aside the death sentence on broader grounds) framed the

issue before the court as “whether, in affirming the imposition of the sentences of death

in the present case, the Georgia Supreme Court has adopted such a broad and vague

construction of the [pertinent] aggravating circumstance as to violate the Eighth and

Fourteenth Amendments to the United States Constitution.” Id. at 423. Godfrey

murdered his wife and mother-in-law after his wife, who had moved in with her mother,

had ended a telephone conversation by telling him that reconciliation would be

impossible. The Court described the facts of the murder as follows:

               At this juncture, the petitioner got out his shotgun and walked with it
       down the hill from his home to the trailer where his mother-in-law lived.
       Peering through a window, he observed his wife, his mother-in-law, and his
       11-year-old daughter playing a card game. He pointed the shotgun at his
       wife through the window and pulled the trigger. The charge from the gun
       struck his wife in the forehead and killed her instantly. He proceeded into
       the trailer, striking and injuring his fleeing daughter with the barrel of the
       gun. He then fired the gun at his mother-in-law, striking her in the head
       and killing her instantly.

Id. at 425.4 The Georgia Supreme Court rejected Godfrey’s challenge to the aggravator

as unconstitutionally vague, noting its prior rejection of such challenges and stating that




4
  Justice White’s dissent also described Godfrey’s murder of his mother-in-law: “[After
Godfrey killed his wife with a shotgun blast that left a hole in her head the size of a silver
dollar,] he took out time not only to strike his daughter on the head, but also to reload his
single-shot shotgun and to enter the house. Only then did he get around to shooting his
mother-in-law, . . . whose last several moments as a sentient being must have been as
terrifying as the human mind can imagine.” 446 U.S. at 449 (White, J., dissenting). He
continued, “[W]ho among us can honestly say that [the mother-in-law] did not feel
‘torture’ in her last sentient moments. . . . What terror must have run through her veins as
she first witnessed her daughter’s hideous demise and then came to terms with the
imminence of her own.” Id. at 449–50.
                                              16
the evidence supported the jury’s finding of the aggravating circumstances. See id. at

427.

       The United States Supreme Court reversed. Although it acknowledged that in

prior cases the Georgia Supreme Court had applied constitutionally valid narrowing

constructions of the aggravator, it said that there was no evidence that the Georgia court

had applied a narrowing construction in that case. See id. at 429–32; Lewis, 497 U.S. at

775 (paraphrasing Godfrey). In particular, the state court had upheld the death sentence

even though, in contrast to prior cases in which the sentence had been upheld, there was

no claim of torture and no evidence that the defendant had “committed an aggravated

battery upon [either victim] or, in fact, caused either of them to suffer any physical injury

preceding their deaths.” 446 U.S. at 432. The prevailing plurality said that there was “no

principled way to distinguish this case, in which the death penalty was imposed, from the

many cases in which it was not.” 446 U.S. at 433; see also id. at 428–29 (“a person of

ordinary sensibility could fairly characterize almost every murder as ‘outrageously or

wantonly vile, horrible and inhuman.’”)

       The Supreme Court’s standard was succinctly stated in Zant v. Stevens, 462 U.S.

862, 877 (1983): “[A]n aggravating circumstance must genuinely narrow the class of

persons eligible for the death penalty and must reasonably justify the imposition of a

more severe sentence on the defendant compared to others found guilty of murder”; see

also Lewis, 497 U.S. at 776 (“aggravating circumstances must be construed to permit the

sentencer to make a principled distinction between those who deserve the death penalty

and those who do not”). The Court held that the two aggravating circumstances in that

                                             17
case (the defendant had escaped from lawful confinement and had a prior conviction for a

capital felony) “adequately differentiate this case in an objective, evenhanded, and

substantively rational way from the many Georgia murder cases in which the death

penalty may not be imposed.” 462 U.S. at 879.

       Of particular significance to this appeal is Maynard v. Cartwright, 486 U.S. 356,

359 (1988), affirming Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987) (en banc),

which considered Oklahoma’s HAC aggravator. The operative language of the

aggravator was the same as for this case—“especially heinous, atrocious, or cruel.” And

the jury had been instructed that “‘the term “heinous” means extremely wicked or

shockingly evil; “atrocious” means outrageously wicked and vile; “cruel” means pitiless,

or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the

sufferings of others.’” Cartwright, 822 F.2d at 1488. The Supreme Court said that in

applying the aggravator, the OCCA “simply had reviewed all the circumstances of the

murder and decided whether the facts made out the aggravating circumstance.” 486 U.S.

at 360. It held that the OCCA’s approach did not satisfy the Eighth Amendment (1)

because the statutory language “fail[ed] adequately to inform juries what they must find

to impose the death penalty and as a result [left] them and appellate courts with the kind

of open-ended discretion which [had been] held invalid in [Furman],” 486 U.S. at 361–

62, and (2) because the OCCA had not construed the HAC aggravator in a manner

sufficient “to cure the unfettered discretion of the jury and to satisfy the commands of the

Eighth Amendment,” id. at 364. “Court precedents,” it said, “have insisted that the

channeling and limiting of the sentencer’s discretion in imposing the death sentence is a

                                              18
fundamental constitutional requirement for sufficiently minimizing the risk of wholly

arbitrary and capricious action.” Id. at 362. The Court compared the language of the

Oklahoma aggravator to the “outrageously or wantonly vile, horrible and inhuman”

language considered in Godfrey, where the Court had said: “There is nothing in these

few words, standing alone, that implies any inherent restraint on the arbitrary and

capricious infliction of the death sentence. A person of ordinary sensibility could fairly

characterize almost every murder as ‘outrageously or wantonly vile, horrible and

inhuman.’” Id. at 363 (internal quotation marks omitted). The vague language of the

aggravator resulted in there being “no principled way to distinguish this case, in which

the death penalty was imposed, from the many cases in which it was not.” Id. (internal

quotation marks omitted). The Court further rejected “[t]he State’s contention that the

addition of the word ‘especially’ somehow guides the jury’s discretion, even if the term

‘heinous’ does not.” Id. at 364. The contention was “untenable” because “[t]o say that

something is ‘especially heinous’ merely suggests that the individual jurors should

determine that the murder is more than just ‘heinous,’ whatever that means, and an

ordinary person could honestly believe that every unjustified, intentional taking of human

life is ‘especially heinous.’” Id. The Court indicated, however, that Oklahoma could

cure the problem by providing a limiting construction of the statutory language. It

mentioned that this court had noted cases stating that imposing a requirement of torture or

serious physical abuse is adequate but the Court left open the possibility that other

limiting instructions could also suffice. See id. at 364–65.



                                             19
       In response to this court’s Cartwright opinion, the OCCA narrowed its

construction of the HAC aggravator. It required that “the murder of the victim [be]

preceded by torture or serious physical abuse, which may include the infliction of either

great physical anguish or extreme mental cruelty.” Cheney v. State, 909 P.2d 74, 80

(Okla. Crim. App. 1995); see Medlock v. Ward, 200 F.3d 1314, 1324 (10th Cir.

2000) (Lucero, J., concurring) (summarizing Oklahoma law). “Absent evidence

of conscious physical suffering of the victim prior to death, the required torture

or serious physical abuse standard is not met.” Cheney, 909 P.2d at 80 (internal

quotation marks omitted). As for extreme mental cruelty, “torture creating

extreme mental distress must be the result of intentional acts by the defendant”

and “must produce mental anguish in addition to that which of necessity

accompanies the underlying killing.” Id.

       Consequently, the HAC aggravator “contemplates a two-step analysis.”

Nuckols v. State, 805 P.2d 672, 674 (Okla. Crim. App. 1991). The first step

requires the jury to determine whether the “death of the victim was preceded by

torture or serious physical abuse.” Id. (internal quotation marks omitted). “Once

this foundational assessment is made, . . . the jury may apply the definitions

given to them . . . to measure whether or not the crime can be considered to have

been heinous, atrocious or cruel.” Id.

       This two-step analysis is reflected in the uniform jury instruction set forth

in DeRosa v. State, 89 P.3d 1124 (Okla. Crim. App. 2004), decided after



                                            20
Mr. Pavatt’s trial. The instruction—to “be used in all future capital murder

trials” in which the HAC aggravator is alleged—states:

      The State has alleged that the murder was “especially heinous,
      atrocious, or cruel.” This aggravating circumstance is not
      established unless the State proves beyond a reasonable doubt:

            First, that the murder was preceded by either torture of the
            victim or serious physical abuse of the victim; and

            Second, that the facts and circumstances of this case establish
            that the murder was heinous, atrocious, or cruel.

      You are instructed that the term “torture” means the infliction of
      either great physical anguish or extreme mental cruelty. You are
      further instructed that you cannot find that “serious physical abuse”
      or “great physical anguish” occurred unless you also find that the
      victim experienced conscious physical suffering prior to his/her
      death.

      In addition, you are instructed that the term “heinous” means
      extremely wicked or shockingly evil; the term “atrocious” means
      outrageously wicked and vile; and the term “cruel” means pitiless,
      designed to inflict a high degree of pain, or utter indifference to or
      enjoyment of the suffering of others.

Id. at 1156. “This instruction [did] not change any of the legal requirements of

the ‘heinous, atrocious, or cruel’ aggravating circumstance as it ha[d] existed up

until [that] time.” Id. Its purpose was “to more fully inform the jury regarding

the findings that must be made in order to properly apply the aggravator and to

ensure that a jury determination is made regarding each of these findings.” Id.

      In short, the OCCA has confined the HAC aggravator, in the absence of

extreme mental cruelty, to murders in which “the victim experiences conscious

physical suffering” before death. This court has responded favorably. We first


                                         21
approved the Cheney narrowing construction in Hatch v. State of Oklahoma, 58

F.3d 1447, 1468–69 (10th Cir. 1995). In further holding that the trial judge

properly applied the enhancement, we quoted the following from the judge’s

remarks at the sentencing proceeding:

      When the law talks of torturing people, that doesn’t mean you have
      to put them on the rack or twist their arms or something. I can’t
      think of anymore [sic] torture than to tie a man and a woman up,
      hog-tie them where they can’t move and at the same time while
      they’re laying there waiting to be shot, they listen to their twelve-
      year-old daughter crying and pleading not to be raped by two grown
      men.

Id. at 1469. We said that the judge “found the necessary facts to indicate that the

crime involved torture or physical abuse.” Id.

       We repeated our endorsement of the narrowing construction in Medlock v.

Ward, 200 F.3d 1314, 1321 (10th Cir. 2000), stating: “We have held that the

‘heinous, atrocious, or cruel’ aggravating circumstance as narrowed by the

Oklahoma courts after Maynard to require torture or serious physical abuse

characterized by conscious suffering can provide a principled narrowing of the

class of those eligible for death.” And we concluded that the defendant in that

case had “fail[ed] to demonstrate that Oklahoma ha[d] applied its narrowing

construction in an unconstitutional manner.” Id. In support of that conclusion,

we set forth the following evidence:

            [The defendant] repeatedly grabbed his victim by the arm, wrestled
      with her, struck her in the face, threw her onto his bed, and covered her
      mouth when she began screaming. He choked her until she temporarily
      passed out, then dragged her to the toilet and stuck her head into the bowl
      while she was conscious and gasping for air, keeping her there for ten

                                         22
       minutes until she passed out again. When he noticed she was still
       breathing and alive, he used a steak knife to stab her in the back of the
       neck and, when that knife bent, took a hunting knife and stabbed her in the
       back of the neck again until she died.

Id. at 1322 (citations omitted); see also Duvall v. Reynolds, 139 F.3d 768, 792–94

(10th Cir. 1998) (after defendant stabbed the victim more than 25 times on her

head, chest, abdomen, and back, the victim asked for help, and he responded,

“Well . . . , it’s just too late for that,” before proceeding to suffocate her with a

pillow).

       But our prior opinions are not an open-ended endorsement of any possible

interpretation or application of the narrowing construction. On the contrary, in 2000,

although reversing a death penalty based on the HAC aggravator for lack of evidence, we

said that “we would be remiss if we failed to note” that Oklahoma’s construction of the

HAC aggravator in that case “appears to raise serious constitutional questions about

whether [the] aggravator legitimately narrows the class of those eligible for death.”

Thomas v. Gibson, 218 F.3d 1213, 1228 n.17 (10th Cir. 2000). The following year we

expressed a more general concern about Oklahoma’s construction of the aggravator.

We wrote:

               Recent Oklahoma cases . . . have begun to blur the common understanding
       of the requisite torture and conscious serious physical suffering, more and more
       often finding the existence of [the HAC] elements in almost every murder. . . .
       There is certainly a concern that Oklahoma’s interpretation of its narrowing
       language could again render this aggravating factor unconstitutional. See Thomas,
       218 F.3d at 1228 & n. 17; see also Medlock, 200 F.3d at 1324 (Lucero, J.,
       concurring) (noting that if Oklahoma permitted capital sentencers to find the
       [HAC] aggravator, based merely on the brief period of conscious suffering
       necessarily present in virtually all murders it would fail to narrow the sentencer’s
       discretion, as constitutionally required [by] Godfrey).

                                             23
Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir. 2001) (original brackets and internal

quotation marks omitted).

       With this background, we turn to the case before us. The State agrees that it had

to prove that Mr. Andrew experienced conscious physical suffering. But the supporting

evidence is slim. The State points to three items of evidence. First, the testimony of the

medical examiner. All he said, however, was that it was possible (he did not testify that it

was probable) that Mr. Andrew could have been conscious for a time after the shooting;

regarding pain, he said only that Mr. Andrew could have experienced pain while dying.

See Tr. at 2457–67. Second, the conversation between Mrs. Andrew and the 911

operator. While reciting her fabricated account of the murder, Mrs. Andrew, prompted

by the operator, said that Mr. Andrew was still breathing and trying to talk to her. (She

did not mention any sign of suffering or pain.) Finally, Mr. Andrew’s body was found

holding a plastic bag of cans, which, in the OCCA’s view, “reasonably suggested that he

either tried to ward off his attacker or shield himself from being shot.” Pavatt I, 159

P.3d at 294.

       Perhaps a reasonable juror could have found this to be sufficient evidence of

conscious physical suffering (although we note that the jury was never instructed that it

needed to make that finding). But this is not the sort of suffering that could in a

“principled way . . . distinguish this case, in which the death penalty was imposed, from

the many cases in which it was not.” Godfrey, 446 U.S. at 433. To repeat what Judge

Lucero stated in his concurrence in Medlock,


                                             24
       Under the Eighth Amendment, applying the narrowing construction of the
       aggravating circumstance in a manner that permitted Oklahoma courts to
       find ‘torture or serious physical abuse’ based merely on the brief period of
       conscious suffering necessarily present in virtually all murders would fail to
       narrow the sentencer’s discretion as required by [Godfrey] and [Maynard],
       leaving the sentencer “with the kind of open-ended discretion which was
       held invalid in [Furman].”
200 F.3d at 1324 (Lucero, J., concurring) (quoting Maynard, 486 U.S. at 361–62).

Indeed, the OCCA apparently recognized as much in one context, stating that “[t]he

torture must produce mental anguish in addition to that which of necessity accompanies

the underlying killing.” Cheney, 909 P.2d at 80. For example, in Cudjo v. State, 925

P.2d 895, 901 (OCCA 1996), the victim “did experience some conscious physical or

mental suffering prior to his death,” but the court nevertheless held that “the evidence

fails to demonstrate that his murder was preceded by torture or serious physical abuse.”

       Thus, we have a case controlled by the Supreme Court’s holding in Godfrey. The

State has an aggravator that at one time it had been construing in a constitutionally

acceptable manner. But, as in Godfrey, that does not immunize its decisions from review

of whether it has departed from that acceptable construction. Mr. Pavatt has challenged

“whether there was sufficient evidence to support a constitutional reading and application

of the [HAC aggravator].” Reply Br. at 5; see Aplt. Br. at 21 (“the evidence here—as

related to the core element of conscious suffering—is constitutionally insufficient”); id. at

35–36 (“The Eighth and Fourteenth Amendments require that an aggravator serve a

narrowing function rather than become a standardless catch-all. Arave v. Creech, 507

U.S. 463, 474 (1993) and Godfrey. . . . Oklahoma has veered off the course forced on it

by Cartwright, coming full circle and no longer limiting this clearly vague aggravating

                                             25
circumstance in a manner that minimizes ‘the risk of wholly arbitrary and capricious

action.’ Maynard, 486 U.S. at 362–63.”). We hold that this Eighth Amendment

challenge is meritorious.5

       Maynard and other Supreme Court precedents have held that the Oklahoma HAC

aggravator would not be constitutional absent a narrowing construction that would

distinguish in a principled manner those cases meriting the death penalty under the

aggravator from the many cases in which it was not imposed. See 486 U.S. at 363. And

Godfrey established that even when a State has previously applied a constitutionally valid

narrowing construction of an aggravator, a death penalty imposed under the aggravator

must still be based on a construction that in a “principled way” can distinguish the case

from the many in which the penalty was not imposed. 446 U.S. at 433. This case

illustrates that the OCCA no longer construes “conscious physical suffering” so that it

distinguishes in a principled way between crimes deserving death and the many cases in

which the death penalty is not imposed. Virtually any murder in which the victim did not

5
  The dissent appears to contend that the Eighth Amendment component of Mr. Pavatt’s
sufficiency-of-the-evidence claim is procedurally barred because it was inadequately
briefed in his direct appeal to the OCCA. But we decline to sua sponte address the issue
of procedural bar. In district court the State said that Mr. Pavatt’s Ground Ten had been
“exhausted for purposes of federal habeas review.” Response to Petition for Writ of
Habeas Corpus at 128. In its response to that ground the State included substantial
references to the Eighth Amendment constraints on aggravators. And although the
State’s brief on appeal argued procedural bar with respect to several of Mr. Pavatt’s
claims, it did not argue in its appellate brief that the sufficiency-of-the-evidence claim or
any of its components was procedurally barred, nor did it argue procedural bar when
questioned at oral argument about the insufficient-narrowing component of that claim.
Likewise, the State has not objected to the Eighth Amendment component of Mr. Pavatt’s
sufficiency-of-the-evidence claim on the ground that our grant of COA did not
encompass the issue. Of course, our opinion implicitly (and now explicitly) grants a
COA if such a grant is necessary.
                                             26
die instantly could qualify for the enhancement as presently construed if there is a

possibility that the act of murder did not immediately render the victim unconscious and

the wounds could have caused pain. The State has not offered any reason to believe, or

even bothered to argue, that “the brief period of conscious suffering necessarily present in

virtually all murders,” Medlock, 200 F.3d at 1324 (Lucero, J., concurring), could provide

a “principled way to distinguish this case, in which the death penalty was imposed, from

the many cases in which it was not,” Maynard, 486 U.S. at 363. Even if, though we

doubt, many murder victims do not experience even a brief period of conscious physical

suffering between the time of the fatal blow and death, that possibility would so often be

purely a matter of chance that we think it is not a principled way to determine who should

suffer the penalty of death and who should not. (Of course, the murderer’s intent to cause

such suffering would be another matter altogether.) Thus, the OCCA did not apply a

constitutionally acceptable interpretation of Oklahoma’s HAC aggravator in determining

that the aggravator was supported by sufficient evidence.

       An important point requires emphasis. We are not saying that the OCCA in this

case unconstitutionally applied a constitutionally acceptable narrowing construction of

the State’s HAC aggravator. We are saying that it did not apply the narrowing

construction that we previously approved. By expanding the meaning of “conscious

physical suffering” to encompass “the brief period of conscious suffering necessarily

present in virtually all murders,” Medlock, 200 F.3d at 1324 (Lucero, J., concurring)—as

it did in this case—Oklahoma has construed the HAC aggravator in a constitutionally

impermissible manner. Lewis distinguished Godfrey on the ground that “[u]nlike in

                                             27
Godfrey, there is no dispute in this case that the Arizona Supreme Court applied its

narrowing construction of Arizona’s . . . aggravating circumstance to the facts of

respondent’s case.” 497 U.S. at 776–77. In this case, however, there is such a dispute,

and it is the heart of the matter. We are unwilling to hold that once we have held that an

aggravator has been or could be constitutionally construed, we cannot revisit the issue

after it is clear that the state court has not adopted a constitutionally acceptable

construction. That is the lesson of Godfrey, and Lewis did not reject that lesson.

       We recognize that our standard of review in this appeal is established by AEDPA.

We can grant relief “with respect to [a] claim that was adjudicated on the merits in State

court proceedings,” only if that adjudication “resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Here,

however, the decision of the OCCA failed to pass muster under this provision. To

properly decide whether there was sufficient evidence to sustain the aggravator, the court

needed to determine that the evidence would support a finding of conscious physical

suffering under a definition of that term that satisfied both Oklahoma law and the Eighth

Amendment. Although it could certainly determine how conscious physical suffering

should be defined under Oklahoma law and (we will assume) it properly concluded that

the evidence at trial satisfied that definition, it totally failed to consider the other

component of the analysis—whether the definition it applied satisfies the Eighth

Amendment. As Mr. Pavatt puts it, the OCCA did not address “whether there was



                                                28
sufficient evidence to support a constitutional reading and application of the [HAC]

aggravator.” Reply Br. at 5.

       As we understand recent Supreme Court authority, the OCCA’s rejection of Mr.

Pavatt’s sufficiency-of-the-evidence claim without applying or even considering

controlling Supreme Court precedent (or at least engaging in an equivalent analysis even

if not citing Supreme Court precedent) rendered its decision contrary to clearly

established federal law. In Lafler v. Cooper, 566 U.S. 156 (2012), the Court reviewed a

decision of the Michigan appellate court denying the defendant’s ineffective-assistance-

of-counsel claim based on counsel’s alleged incompetence in advising him to reject a

prosecution plea offer. The defendant proceeded to trial and ultimately received a

sentence much harsher than what had been offered. See id. at 161. The Court applied the

two-part test for ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668

(1984), which requires the defendant to establish deficient performance and prejudice

from that deficiency. See Lafler, 566 U.S. at 162–63. Because there was no dispute that

counsel’s performance was deficient, “[t]he question for [the] Court [was] how to apply

Strickland’s prejudice test where ineffective assistance results in a rejection of the plea

offer and the defendant is convicted at the ensuing trial.” Id. at 163. This was a new

issue for the Court. It had “never held that a defendant in [that] position can establish

Strickland prejudice.” Id. at 183 (Scalia, J., dissenting); see Williams v. Jones, 571 F.3d

1086, 1097–1101 (10th Cir 2009) (Gorsuch, J., dissenting) (arguing, in same

circumstances, that defendant suffered no prejudice to a constitutional interest, given that



                                              29
he received a fair trial). But “AEDPA [did] not present a bar to granting [the defendant]

relief.” 566 U.S. at 173. The Court explained:

       That is because the [state court] identified [the defendant’s] ineffective-assistance-
       of-counsel claim but failed to apply Strickland to assess it. Rather than applying
       Strickland, the state court simply found that [the defendant’s] rejection of the plea
       was knowing and voluntary. An inquiry into whether the rejection of a plea is
       knowing and voluntary, however, is not the correct means by which to address a
       claim of ineffective assistance of counsel. . . . By failing to apply Strickland to
       assess the ineffective-assistance-of-counsel claim [the defendant] raised, the state
       court’s adjudication was contrary to clearly established federal law.

Id. (citations omitted) (emphasis added).

       Likewise, in this case the OCCA’s adjudication was “contrary to clearly

established federal law” because its analysis did not discuss, apply, or even cite the

Supreme Court decisions governing the constitutional requirements limiting death-

penalty aggravators. The opinion did not address at all whether the evidence presented

was sufficient to support a constitutionally acceptable HAC aggravator.6 Therefore,

“AEDPA does not present a bar to granting [Mr. Pavatt] relief.” Id. “[I]n [this]

circumstance, the federal courts in this habeas action can determine the principles

necessary to grant relief.” Id. This we have done. Applying Supreme Court precedent,

we hold that the HAC aggravator cannot constitutionally be applied in this case.

       In following Lafler we are not proceeding contrary to Harrington v. Richter, 562

U.S. 86 (2011). That opinion held that “§ 2254(d) applies when a state court’s order is


6
  Moreover, upholding the OCCA’s construction of conscious physical suffering in this
case as satisfying constitutional standards would be an “unreasonable application” of
Supreme Court decisions. 28 U.S.C. § 2254(d)(1). The Supreme Court’s oft-applied
principles governing aggravators that have been set forth above compels our conclusion
in this case.
                                             30
unaccompanied by an opinion explaining the reasons relief has been denied.” Id. at 98.

It did not say that when the state court provides some reasons why a claim for relief has

been denied, we should presume that it also had additional, more persuasive, reasons.

The author of Lafler, who had written the Court’s opinion in Richter a year earlier, did

not speculate that the lower court had silently applied Strickland in denying relief. And

there was much stronger reason to assume that the lower court in Lafler had silently

applied Strickland than there is to believe that the OCCA in this case considered Eighth

Amendment constraints on its construction of the HAC aggravator. As the dissent in

Lafler pointed out, the state court in that case had recited the requirements of Strickland

in the paragraph preceding the one relied on by the majority in concluding that the state

court had not applied those requirements. Lafler, 566 U.S. at 182–83 (Scalia, J.,

dissenting). In our case, the OCCA resolved Mr. Pavatt’s sufficiency-of-the-evidence

issue without any mention of the Eighth Amendment or its principles.

   V.      CONCLUSION

        We AFFIRM the judgment of the district court regarding Mr. Pavatt’s

conviction but REVERSE and REMAND with respect to his sentence. We

DENY Mr. Pavatt’s request for an additional COA.




                                             31
No. 14-6117, Pavatt v. Royal

BRISCOE, Circuit Judge, concurring in part and dissenting in part.

       I concur in part and dissent in part. I agree with Part III of the majority’s opinion,

which rejects certain of Pavatt’s ineffective assistance of counsel claims and affirms the

denial of federal habeas relief on Pavatt’s convictions for first degree murder and

conspiracy to commit first degree murder. As I explain in greater detail below, however,

I would add that there is no merit to any of Pavatt’s ineffective assistance claims, or to his

additional argument urging us to recognize an exception to the procedural bar that applies

to most of his ineffective assistance of counsel claims.

       As for Part IV of the majority’s opinion, I disagree with it in full. As I shall

discuss in greater detail below, Pavatt’s appellate brief in this case attempts to assert three

distinct challenges to the jury’s second-stage finding that the murder was especially

heinous, atrocious or cruel (the HAC aggravating circumstance): (1) that the jury was not

properly instructed regarding the HAC aggravating circumstance; (2) that the evidence

presented at his sentencing proceeding was constitutionally insufficient to support the

HAC aggravating circumstance; and (3) that the HAC aggravator, as applied in his case,

is unconstitutionally vague in violation of the Eighth Amendment. Part IV of the

majority’s opinion only briefly touches on and does not ultimately resolve the first and0

second of these issues. Instead, Part IV focuses on and ultimately grants federal habeas

relief on the basis of the Eighth Amendment claim. In doing so, however, Part IV ignores

the undisputed fact that the Eighth Amendment claim is unexhausted because Pavatt

never presented it to the OCCA. Part IV also ignores the undisputed fact that this court
never granted Pavatt a certificate of appealability (COA) as to the Eighth Amendment

claim. In short, Part IV grants Pavatt federal habeas relief on the basis of a claim that was

never presented to or decided by the OCCA and that is not properly before this court.

       Thus, in sum, I would affirm the judgment of the district court denying Pavatt’s

petition for writ of habeas corpus in its entirety.

                                               I

       Pavatt asserts a number of claims of ineffective assistance of counsel and appellate

counsel, including the claims of ineffective assistance of trial counsel that are addressed

and rejected in Part III of the majority opinion. Although I agree with the majority that

Pavatt is not entitled to federal habeas relief on the basis of these claims, I would

conclude that only one of Pavatt’s ineffective assistance claims is properly before us, and

that the remainder are procedurally barred due to Pavatt’s failure to present them to the

OCCA “in compliance with relevant state procedural rules.” Cone v. Bell, 556 U.S. 449,

465 (2009).

       In his original application for state post-conviction relief, Pavatt asserted a host of

claims alleging ineffective assistance of trial and appellate counsel. Only one of those

claims, however, is now at issue in this appeal. That was a claim that his appellate

attorneys failed to challenge on direct appeal the admissibility of a photograph of Rob

Andrew taken prior to his death (State’s Exhibit 219), and that the admission of that

photograph “rendered . . . Pavatt’s trial fundamentally unfair, depriving him of the Due

Process of Law, and unconstitutionally injected passion, prejudice, and other arbitrary

                                               2
factors into the sentencing proceeding.” Original App. for Post-Conviction Relief at 54

(citations omitted). The OCCA denied relief on the claim, noting in part that it had

rejected a similar claim in Marquez-Burrola v. State, 157 P.3d 749, 760 (Okla. Crim.

App. 2007). Pavatt v. State, No. PCD-2004-25 at 6 n.6 (Okla. Crim. App. Apr. 11,

2008). The OCCA also stated that this claim was “barred by res judicata.” Id. at 6.

Presumably, this was a reference to Pavatt’s argument on direct appeal that the trial court

erred in admitting gruesome photographs of Rob Andrew at the crime scene and his

accompanying request that the OCCA review the premortem photographs of Rob

Andrew. In any event, respondent does not argue that the claim is procedurally barred for

purposes of federal habeas review.

       The district court reviewed the claim on the merits and concluded that Pavatt had

failed to demonstrate that the OCCA’s decision was contrary to or an unreasonable

application of Strickland v. Washington, 466 U.S. 668 (1984). ROA, Vol. 3 at 1125

(ECF No. 91 at 77). More specifically, the district court concluded “it [wa]s clear that

based on the case cited by the OCCA in its denial of [Pavatt]’s claim, Marquez-Burrola,

as well as other cases decided by the OCCA prior to [Pavatt]’s appeal, that [Pavatt] would

not have prevailed on appeal had the claim been raised.” Id. (citations omitted).

       I agree with the district court. In Marquez-Burrola, the OCCA considered and

rejected a challenge to the constitutionality of § 2403 of the Oklahoma Evidence Code,

which states, in pertinent part, that “an appropriate photograph of the victim while alive

shall be admissible evidence when offered by the district attorney to show the general

                                             3
appearance and condition of the victim while alive.” Okla. Stat. tit. 12, § 2403 2016); see

Marquez-Burrola, 157 P.3d at 760. The OCCA in that case also rejected the defendant’s

argument that the trial court abused its discretion by admitting, pursuant to § 2403, a

single, premortem photograph of the victim. Id. at 760-61. Notably, the premortem

photograph of Rob Andrew was admitted at Pavatt’s trial without objection pursuant to §

2403, and I see nothing about that photograph or the facts of Pavatt’s trial that would

distinguish it from Marquez-Burrola. Further, the OCCA itself explicitly stated that, in

light of Marquez-Burrola, it would not have granted relief to Pavatt had he challenged the

admission of Exhibit 219 on direct appeal. Consequently, Pavatt has failed to establish

that he was prejudiced by the failure of his appellate counsel to raise the issue on direct

appeal.

       All of the remaining ineffective assistance claims asserted by Pavatt in this

appeal—trial counsel’s failure to prevent the admission of pervasive victim-impact

evidence in both stages of trial (other than Exhibit 219), trial counsel’s failure to

investigate and present a compelling mitigation case, and appellate counsel’s failure to

assert these claims of ineffective assistance on direct appeal—were first presented by

Pavatt to the OCCA in his second application for state post-conviction relief. The OCCA

concluded that these claims were procedurally barred under the provisions of the

Oklahoma Post-Conviction Procedure Act, Okla. Stat. tit. 22, §§ 1080 et seq. In reaching

this conclusion, the OCCA noted that, under that Act, “[c]laims which could have been

raised on direct appeal, but were not, are generally considered waived.” Pavatt v. State,



                                               4
No. PCD-2009-777 at 2 (Okla. Crim. App. Feb. 2, 2010). Further, the OCCA noted that

it could “not consider the merits of any claim made in a subsequent application for post-

conviction relief, unless (1) the legal basis for that claim was previously unavailable, or

(2) the facts supporting the claim were not previously ascertainable through the exercise

of reasonable diligence.” Id. at 2-3. The OCCA determined that all of Pavatt’s

ineffective assistance claims could have been raised at an earlier time, and it in turn

concluded that it was “barred by the provisions of the Post-Conviction Procedure Act

from considering these arguments.” Id. at 7.

       Despite the OCCA’s ruling, Pavatt argues that we should review his claims de

novo for two reasons. First, he contends that “[t]he OCCA did not clearly impose a

procedural bar of these claims, but instead stated the ‘current arguments merely modify or

expand the claims made, and rejected, in prior proceedings.’” Aplt. Br. at 50 (quoting

Pavatt, No. PCD-2009-777 at 4). This argument makes little sense when one recalls that

the ineffective assistance of counsel claims he now asserts were first raised in his second

application for state post-conviction relief. Further, as discussed above and as Pavatt

ultimately concedes in a related footnote, the OCCA quite clearly concluded that these

claims were procedurally barred under Oklahoma’s Post-Conviction Procedure Act. Id.

at 50-51 n.14.

       That leads to Pavatt’s second argument: “Even if this Court determines the OCCA

imposed a procedural bar, such a bar is not without exception. Post-conviction counsel’s

ineffectiveness in not fully challenging the failures of prior counsel to object to the



                                               5
inadmissible sympathy evidence is the ‘cause’ that excuses any default.” Id. at 50-51

(citations omitted). In other words, Pavatt argues that the ineffectiveness of the attorney

who represented him in filing his original application for post-conviction relief

establishes the “cause” for his failure to comply with Oklahoma’s procedural

requirements.

       In support of this argument, Pavatt relies on the Supreme Court’s decisions in

Martinez v. Ryan, – U.S. –, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, – U.S. –, 133

S. Ct. 1911 (2013). Aplt. Br. at 51. In Martinez, the Supreme Court held that if,

       under state law, claims of ineffective assistance of trial counsel must be
       raised in an initial-review collateral proceeding, a procedural default will
       not bar a federal habeas court from hearing a substantial claim of ineffective
       assistance at trial if, in the initial-review collateral proceeding, there was no
       counsel or counsel in that proceeding was ineffective.

Id. at 1320 (emphasis added).

       In Trevino, the Supreme Court explained that, in determining whether the

Martinez exception to Coleman v. Thompson, 501 U.S. 722, 729-30, 753-54 (1991)

(holding that a defendant’s state-law procedural default ordinarily prevents a federal

habeas court from considering the defendant’s federal constitutional claim, and that an

attorney’s errors in a post-conviction proceeding do not qualify as cause for such a

default), applies in a particular case, four requirements must be met:

       (1) the claim of “ineffective assistance of trial counsel” was a “substantial”
       claim; (2) the “cause” consisted of there being “no counsel” or only
       “ineffective” counsel during the state collateral review proceeding; (3) the
       state collateral review proceedings was the “initial” review proceeding in
       respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state
       law requires that an “ineffective assistance of trial counsel [claim] . . . be


                                              6
       raised in an initial-review collateral proceeding.

133 S. Ct. at 1918 (alteration in original) (quoting Martinez, 132 S. Ct. at 1318-19, 1320-

21). The Court in Trevino ultimately extended the rule in Martinez to circumstances in

which state law does not expressly require claims of ineffective assistance of trial counsel

to be brought in collateral proceedings, but, by way of its “structure and design . . .

make[s] it virtually impossible for an ineffective assistance claim to be presented on

direct review.” Id. at 1915 (internal quotation marks omitted).

       Pavatt argues that the rules outlined in Martinez and Trevino should be applied in

his case because (a) he was represented at trial and on direct appeal by the same attorney,

(b) consequently, his original application for post-conviction relief was his first real

opportunity to assert ineffective assistance of trial counsel claims, and (c) the attorney

who represented him in filing his original application for post-conviction relief was

ineffective for failing to raise these claims of ineffective assistance of trial counsel and

appellate counsel.

       I disagree. Martinez and Trevino are distinguishable because, in both of those

cases, the Supreme Court focused on whether the “structure and design” of the state

system at issue, i.e., what the Supreme Court in Trevino characterized as the state’s

“procedural regime,” 133 S. Ct. at 1915, expressly or effectively prevented the petitioner

from raising his or her ineffective assistance claim for the first time until state post-

conviction proceedings. Notably, in Fairchild v. Trammell, 784 F.3d 702, 721 (10th Cir.

2015), we differentiated Oklahoma’s procedural regime from the state systems that were



                                               7
at issue in Martinez and Trevino. In particular, we noted that “Oklahoma provides a

reasonable time to investigate a claim of ineffective assistance before raising it on direct

appeal” and that, under Oklahoma law, “[a] claim of ineffective assistance can be raised

with the opening brief on [direct] appeal.”1 Id. Thus, consistent with our holding in

Fairchild, I would conclude that neither Martinez nor Trevino allow us to bypass the

OCCA’s procedural bar ruling and review Pavatt’s ineffective assistance claims on the

merits. To hold otherwise would be to adopt an entirely new, and potentially much

broader, rule than was announced in Martinez and Trevino.

                                              II

       As noted, Pavatt also asserts three distinct challenges to the HAC aggravating

circumstance found by the jury: (1) that the jury in his case was not properly instructed

regarding the HAC aggravating circumstance; (2) that the evidence presented at his

sentencing proceeding was constitutionally insufficient to support the HAC aggravating

circumstance; and (3) that the HAC aggravator, as applied by the Oklahoma Court of

Criminal Appeals (OCCA), is unconstitutionally vague in violation of the Eighth

Amendment. As discussed below, I conclude that all of these challenges lack merit, and

that we must affirm the district court’s denial of federal habeas relief with respect to those

claims.

                                              A



       1
         Indeed, we have recognized that Oklahoma law generally requires that a claim of
ineffective assistance of trial counsel be raised on direct appeal. See Cole v. Trammell,
755 F.3d 1142, 1159 (10th Cir. 2014).

                                              8
       The Oklahoma legislature has outlined eight aggravating circumstances that may

be found by a jury in the sentencing phase of a capital trial. See Okla. Stat. tit. 21, §

701.12. Included among those is the HAC aggravating circumstance. Id. § 701.12(4)

(“The murder was especially heinous, atrocious, or cruel.”).

       In 1988, the Supreme Court addressed the constitutionality of Oklahoma’s HAC

aggravating circumstance in Maynard v. Cartwright, 486 U.S. 356 (1988). The claim in

that case, which was filed by an Oklahoma capital defendant, was that Oklahoma’s HAC

aggravator was unconstitutionally vague and overbroad. The Supreme Court

unanimously agreed and held that the statutory language of the HAC aggravator, standing

alone, failed to give a jury adequate guidance. Id. at 363-64. “[A]n ordinary person,” the

Court concluded, “could honestly believe that every unjustified, intentional taking of

human life is ‘especially heinous.’” Id.

       Notably, while Maynard was pending before the Supreme Court, the OCCA

expressly “restricted the ‘heinous, atrocious, or cruel’ aggravating circumstance to those

murders in which torture or serious physical abuse [wa]s present.” Id. at 365 (citing

Stouffer v. State, 742 P.2d 562 (Okla. Crim. App. 1987)). More specifically, the OCCA

in Stouffer “identified two kinds of cases in which ‘torture or serious physical abuse’

[wa]s present: those characterized by the infliction of ‘great physical anguish’ and those

characterized by the infliction of ‘extreme mental cruelty.’” Medlock v. Ward, 200 F.3d

1314, 1324 (10th Cir. 2000) (Lucero, J., concurring). “In the mental cruelty context, the

OCCA . . . emphasized that the torture required for finding the ‘heinous, atrocious, or



                                               9
cruel’ aggravator must produce mental anguish in addition to that which of necessity

accompanies the underlying killing.” Id. (internal quotation marks omitted). And, with

respect to the physical anguish branch of its test, the OCCA held that, “[a]bsent evidence

of conscious physical suffering by the victim prior to death, the required torture or serious

physical abuse standard is not met.” Battenfield v. State, 816 P.2d 555, 565 (Okla. Crim.

App. 1991).

       In addition to the restrictions outlined in Stouffer, the OCCA has since indicated

that the HAC aggravator “contemplates a two-step analysis.” Nuckols v. State, 805 P.2d

672, 674 (Okla. Crim. App. 1991). The first step of this analysis, the OCCA has stated,

requires the jury to determine whether the death of the victim was preceded by torture or

serious physical abuse. Id. “Once this foundational assessment is made,” the OCCA has

stated, “then the jury may apply the definitions given to them . . . to measure whether or

not the crime can be considered to have been heinous, atrocious or cruel.” Id.

       In DeRosa v. State, 89 P.3d 1124, 1156 (Okla. Crim. App. 2004), the OCCA

officially incorporated this two-step analysis into its uniform jury instructions. More

specifically, the OCCA outlined a jury instruction defining the HAC aggravator and

directed that this instruction was to “replace the current version of OUJI-CR(2d) 4-73 and

that it shall be used in all future capital murder trials in which the” HAC aggravator is

alleged. The instruction read as follows:

       The State has alleged that the murder was “especially heinous, atrocious, or
       cruel.” This aggravating circumstance is not established unless the State
       proves beyond a reasonable doubt:



                                             10
              First, that the murder was preceded by either torture of the victim or
              serious physical abuse of the victim; and

              Second, that the facts and circumstances of this case establish that
              the murder was heinous, atrocious, or cruel.

       You are instructed that the term “torture” means the infliction of either great
       physical anguish or extreme mental cruelty. You are further instructed that
       you cannot find that “serious physical abuse” or “great physical anguish”
       occurred unless you also find that the victim experienced conscious
       physical suffering prior to his/her death.

       In addition, you are instructed that the term “heinous” means extremely
       wicked or shockingly evil; the term “atrocious” means outrageously wicked
       and vile; and the term “cruel” means pitiless, designed to inflict a high
       degree of pain, or utter indifference to or enjoyment of the suffering of
       others.

Id. The OCCA emphasized that “[t]his instruction does not change any of the legal

requirements of the ‘heinous, atrocious, or cruel’ aggravating circumstance as it has

existed up until this time.” Id. “Rather,” the OCCA noted, “it is intended to more fully

inform the jury regarding the findings that must be made in order to properly apply the

aggravator and to ensure that a jury determination is made regarding each of these

findings.” Id.

                                               B

       In the first of his challenges to the HAC aggravating circumstance found by the

jury in his case, Pavatt contends that the state trial court’s instructions to the jury

regarding the HAC aggravating circumstance failed to inform them adequately that they

must find “conscious physical suffering” before concluding that the murder was

“especially heinous, atrocious, or cruel.”



                                               11
                                Facts relevant to this claim

       Prior to trial, Pavatt filed an objection “to the pattern verdict form, OUJI-CR 2d 4-

84, on the grounds the special findings, i.e., the aggravating circumstances, [we]re ill-

defined, vague and d[id] not check the unbridled discretion of the sentencer.” State R. at

1286. Pavatt subsequently filed an objection to the standard instruction and verdict form

on the HAC aggravating circumstance “on the grounds that [they were] unconstitutional”

in light of the Supreme Court’s decision in Maynard. Id. at 1471.

       The state trial court overruled Pavatt’s objections and, at the conclusion of the

second-stage proceedings, gave the jury the following instruction regarding the HAC

aggravating circumstance:

                                   Instruction Number 5

       As used in these instructions, the term “heinous” means extremely wicked
       or shockingly evil; “atrocious” means outrageously wicked and vile; “cruel”
       means pitiless, or designed to inflict a high degree of pain, utter indifference
       to, or enjoyment of, the sufferings of others.

       The phrase “especially heinous, atrocious, or cruel” is directed to those
       crimes where the death of the victim was preceded by torture of the victim
       or serious physical abuse.

Id. at 2052. The second-stage verdict form simply asked the jury to check whether or not

they found the existence of each of the alleged aggravating circumstances. Id. at 2063.

The verdict form did not otherwise explain or attempt to define the HAC aggravating

circumstance. Id.

                      Pavatt’s presentation of the issue to the OCCA

       Although Pavatt argued on direct appeal that the evidence presented at trial was

                                             12
insufficient to support the HAC aggravating circumstance, he did not challenge on direct

appeal the adequacy of the HAC instruction or the verdict form. Nor did he raise the

issue in his initial application for post-conviction relief. Instead, Pavatt waited until he

filed his second application for post-conviction relief to raise the issue. In that

application, Pavatt argued that the state trial court violated his constitutional rights by

failing to provide an adequate instruction that informed the jury that it must find

conscious physical suffering beyond a reasonable doubt before concluding that the

murder was especially heinous, atrocious, or cruel.

                            The OCCA’s resolution of the claim

       In its opinion denying Pavatt’s second application for post-conviction relief, the

OCCA concluded that this claim was procedurally barred: “Because this argument is

based on the trial record, it could have been made in prior proceedings, and may not be

considered now.” Pavatt, No. PCD-2009-777 at 5 (citing Okla. Stat. title 22, §

1089(D)(8)). In a related footnote, the OCCA also stated:

       In any event, we have rejected the same argument several times in the past.
       [Pavatt] essentially asks this Court to retroactively require an instruction
       that we promulgated — after Petitioner’s conviction — in DeRosa v. State,
       2004 OK CR 19, ¶¶ 91-97, 89 P.3d 1124, 1154-57. That instruction
       elaborates on the meaning of “heinous, atrocious, or cruel,” and the relevant
       Uniform Jury Instruction already in existence (No. 4-73) was amended a
       year later. DeRosa was handed down several months after [Pavatt]’s trial.
       DeRosa does not hold that the Uniform Jury Instruction on this issue, being
       used at the time of DeRosa’s and [Pavatt]’s trials, was materially deficient.
       DeRosa, 2004 OK CR 19, ¶ 97, 89 P.3d at 1156 (“This opinion should not
       be interpreted as a ruling that the former uniform instruction was legally
       inaccurate or inadequate”). This same attack on the pre-DeRosa version of
       OUJI-CR (2nd) No. 4-73 has been rejected several times by this Court.
       Jackson v. State, 2006 OK CR 45, ¶¶ 36-38, 146 P.3d 1149, 1161-63;

                                              13
       Browning v. State, 2006 OK CR 8, ¶¶ 52-56, 134 P.3d 816, 843-45; Rojem
       v. State, 2006 OK CR 7, ¶¶ 68-73, 130 P.3d 287, 300-01.

Id. at 5 n.5.

                          The district court’s procedural bar ruling

       The district court in this case concluded that Pavatt’s challenge to the state trial

court’s HAC instruction was “barred from federal review.” ROA, Vol. 3 at 1138. In

support, the district court stated that “[t]he Tenth Circuit has repeatedly recognized the

application of a procedural bar to claims which could have been raised in an initial post-

conviction application but were not.” Id. at 1079. The district court also concluded that

“the OCCA’s procedural bar here [wa]s adequate and independent.” Id. at 1080. Lastly,

the district court concluded that Pavatt had “not made any showing of cause and prejudice

to excuse his default of th[is] claim[],” nor had he shown “that a fundamental miscarriage

of justice w[ould] occur if the claim [wa]s not heard.” Id. at 1081-82.

                Pavatt’s challenge to the district court’s procedural bar ruling

       Pavatt now contends that “[t]he district court erred in finding this claim

procedurally barred from federal review.” Aplt. Br. at 41. In support, Pavatt asserts that

“Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2002) gives the OCCA the option to

permit consideration on the merits ‘when an error complained of has resulted in a

miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory

right.’” Aplt. Br. at 41 (quoting Valdez, 46 P.3d at 710). “The merits inquiry,” Pavatt

asserts, “is thus part of the default consideration, and therefore, lacks independence as in

Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985).” Aplt. Br. at 41.

                                              14
       “The doctrine of procedural default prevents a federal court from reviewing ‘the

merits of a claim—including constitutional claims—that a state court declined to hear

because the prisoner failed to abide by a state procedural rule.’” Williams v. Trammell,

782 F.3d 1184, 1212 (10th Cir. 2015) (quoting Martinez v. Ryan, 566 U.S. 1, 9 (2012)).

“In order to bar federal review, a state procedural rule must be adequate to support the

judgment and independent from federal law.” Banks v. Workman, 692 F.3d 1133, 1145

(10th Cir. 2012). “These dual requirements seek to ensure state rules are not employed to

defeat federal court review of constitutional rights.” Id. “To satisfy the adequacy

element, a state procedural rule must be strictly or regularly followed and applied

evenhandedly to all similar claims.” Id. (internal quotation marks omitted) (citation

omitted). This court “ha[s] repeatedly held that Oklahoma’s procedural default rule

meets the adequacy requirement.” Id. “A state procedural rule is independent if it relies

on state law, rather than federal law, as the basis for the decision.” Id. (internal quotation

marks omitted) (citation omitted).

       “In Ake v. Oklahoma, . . . the OCCA had held that [defendant] Ake had waived his

claims that he was entitled to a court-appointed psychiatrist to assist him in an insanity

defense because he had not renewed his request for a psychiatrist in a new-trial motion.”

Black v. Workman, 682 F.3d 880, 918 (10th Cir. 2012). “But under Oklahoma law there

was no procedural bar if the alleged error was ‘fundamental trial error’; and federal

constitutional error was considered an error of that type.” Id. (quoting Ake, 470 U.S. at

74-75). “Thus, the OCCA could not apply the waiver rule without first addressing the



                                              15
federal constitutional error.” Id. “The Supreme Court concluded that the state waiver

rule was therefore not an independent state ground for barring review.” Id.

       In Pavatt’s case, as in Banks, the OCCA based its denial “upon the state procedural

rule in § 1089(D)(8).” 692 F.3d at 1145. “Because § 1089 is purely a state law rule, we

have held that Oklahoma decisions resting entirely upon § 1089(D)(8) are independent.”

Id. But Pavatt, relying on Valdez and parroting other Oklahoma capital defendants who

have mounted similar challenges, essentially argues that the OCCA’s reliance on §

1089(D)(8) “does not preclude merits review because the state bar is not independent of

federal law.” Fairchild, 784 F.3d at 719. More specifically, Pavatt “is asserting that the

OCCA will not impose a procedural bar [pursuant to § 1089(D)(8)] unless it first

determines that any federal claims lack merit,” id., and thus the OCCA “sometimes

forgives noncompliance with the bar on successive post-conviction applications.”

Williams, 782 F.3d at 1213.

       As we have noted, however, “the Valdez exception only applies in cases involving

an exceptional circumstance, and it is insufficient to overcome Oklahoma’s regular and

consistent application of its procedural-bar rule in the vast majority of cases.”2 Id.

(internal quotation marks omitted) (citations omitted). In this case, Pavatt’s challenge to

the HAC jury instruction is far from exceptional: it is a claim that was readily apparent



       2
        “Valdez was special because the lawyers there knew that their client was a citizen
of Mexico and nonetheless failed to comply with the Vienna Convention when they failed
to contact the Mexican Consulate, thereby depriving the Consulate [of] the ability to
intervene and present its discovery that the defendant suffered from organic brain
damage.” Williams, 782 F.3d at 1213.

                                             16
from the trial record and that could and arguably should have been raised on direct

appeal. Moreover, although the OCCA opined in a footnote that there was no merit to

Pavatt’s claim, the clear and unequivocal basis for its denial of his claim was procedural

bar under § 1089(D)(8). See Cole, 755 F.3d at 1158-59 (acknowledging and applying the

OCCA’s procedural bar ruling, even though the OCCA, on an alternative basis, briefly

addressed and rejected the merits of the petitioner’s claim); Thacker v. Workman, 678

F.3d 820, 834 n.5 (10th Cir. 2012) (same). I therefore agree with the district court that

the claim is procedurally barred.

                                The merits of Pavatt’s claim

       Even if we were to assume that the claim was not procedurally barred, it cannot

provide Pavatt with a valid basis for federal habeas relief. In Workman v. Mullin, 342

F.3d 1100 (10th Cir. 2003) and Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008), we

considered HAC jury instructions identical to the one utilized in Pavatt’s case and

rejected claims identical to the one now asserted by Pavatt. In doing so, we concluded

that the language of the instructions was sufficient to narrow the jury’s discretion, as

required by Supreme Court precedent. Workman, 342 F.3d at 1116; Wilson, 536 F.3d at

1108. We also noted in Wilson that “[e]ven if the jury instruction did not sufficiently

narrow the jury’s discretion,” the OCCA could “also perform this narrowing function on

review” and actually did so. 536 F.3d at 1108. The same holds true in Pavatt’s case.

                                              C

       In the second of his challenges to the HAC aggravating circumstance, Pavatt



                                             17
argues that the evidence presented at the sentencing phase of his trial was constitutionally

insufficient to support the HAC aggravating circumstance. In support of his challenge to

the constitutional sufficiency of the evidence supporting the HAC aggravator, Pavatt

offers his view of the evidence:

       Rob Andrew was shot twice with a shotgun at relatively close range. There
       was no gratuitous violence. There was no torture. There was no anguish or
       suffering beyond that which necessarily accompanied the underlying
       killing. The two shotgun blasts were both independently fatal. Pellets from
       both shots hit vital internal organs. Rob could not have remained conscious
       for more than a few moments, before going into shock and quickly bleeding
       to death. Additionally, the combination of both shots would have sped up
       the bleeding, causing Rob to die where he fell. If Rob Andrew’s homicide
       was “heinous, atrocious, or cruel,” then any murder in which the victim
       does not die instantly satisfies this factor.

Aplt. Br. at 21-22.

                      Pavatt’s presentation of the claim to the OCCA

       Pavatt first challenged the sufficiency of the evidence supporting the HAC

aggravator in his direct appeal. The entirety of his argument was as follows:

               There was insufficient evidence to support the heinous, atrocious or
       cruel aggravating circumstance. See Thomas v. Gibson, 218 F.3d 1213
       (10th Cir. 2000)(Evidence was insufficient to support heinous, atrocious or
       cruel aggravating circumstance); Donaldson v. State, 722 So.2d 177 (Fla.
       1998); Jones v. Gibson, 206 F.3d 946, 953 (10th Cir. 2001)(“We agree with
       petitioner and the federal district court that the record does not support the
       Oklahoma Court of Criminal Appeals’ finding that the victim pleaded for
       his life”).

              The evidence does not support the fact that the murder was
       “especially” heinous, atrocious or cruel. As defense counsel said during
       closing argument, “To some degree I suppose all homicides are heinous,
       atrocious or cruel. I think that’s the reason why the legislature has inflicted
       the term especially to that phrase.”



                                             18
              Interestingly, the State attempts to prove the existence of the
      aggravating circumstance on the basis of the information provided by
      Brenda Andrew in her 911 call to the police. (Tr. 3763) The medical
      examiner’s testimony was that either of the two wounds could have been
      fatal. Death occurred in a matter of minutes. The medical examiner could
      not tell how long Mr. Andrew was conscious. (Tr. 3764)

Direct Appeal Br. at 47.

      The OCCA rejected this claim on the merits, stating as follows:

         In Propositions 14 and 15, Appellant challenges the sufficiency of the
      evidence to support the two aggravating circumstances alleged by the State
      as warranting the death penalty. Such challenges are reviewed under the
      same standard as challenges to the evidence supporting a criminal
      conviction. We consider the evidence in a light most favorable to the State,
      and determine whether any rational juror could have found the existence of
      the challenged aggravating circumstance beyond a reasonable doubt.
      DeRosa, 2004 OK CR 19 at ¶ 85, 89 P.3d at 1153; Lockett v. State, 2002
      OK CR 30, ¶ 39, 53 P.3d 418, 430.

         In Proposition 14, Appellant claims the evidence was insufficient to
      support the jury’s finding that the murder of Rob Andrew was “especially
      heinous, atrocious, or cruel.” To establish this aggravator, the State must
      present evidence from which the jury could find that the victim’s death was
      preceded by either serious physical abuse or torture. Evidence that the
      victim was conscious and aware of the attack supports a finding of torture.
      Davis v. State, 2004 OK CR 36, ¶ 39, 103 P.3d 70, 81; Black v. State, 2001
      OK CR 5, ¶ 79, 21 P.3d 1047, 1074 (evidence that victim consciously
      suffered pain during and after stabbing was sufficient to support this
      aggravating circumstance); Le, 1997 OK CR 55 at ¶ 35, 947 P.2d at 550;
      Romano v. State, 1995 OK CR 74, ¶ 70, 909 P.2d 92, 118; Berget v. State,
      1991 OK CR 121, ¶ 31, 824 P.2d 364, 373. Our evaluation is not a
      mechanistic exercise. As we stated in Robinson v. State, 1995 OK CR 25, ¶
      36, 900 P.2d 389, 401:

                 As much as we would like to point to specific, uniform
             criteria, applicable to all murder cases, which would make the
             application of the “heinous, atrocious or cruel” aggravator a
             mechanical procedure, that is simply not possible. Rather, the
             examination of the facts of each and every case is necessary
             in determining whether the aggravator was proved.

                                           19
       Unfortunately, no two cases present identical fact scenarios
       for our consideration, therefore the particulars of each case
       become the focus of our inquiry, as opposed to one case’s
       similarity to another, in resolving a sufficiency of the
       evidence claim supporting the heinous, atrocious or cruel
       aggravator.

    The evidence presented at trial showed that Rob Andrew suffered
numerous wounds resulting from two shotgun blasts, which damaged his
internal organs. The medical examiner testified that either wound would
have caused sufficient blood loss to be independently fatal, but that death
was not instantaneous. When emergency personnel arrived, Andrew was
still clutching a trash bag full of empty aluminum cans, which reasonably
suggested that he either tried to ward off his attacker or shield himself from
being shot. Brenda Andrew called 911 twice after the shooting; together,
the two calls spanned several minutes. During the second call, she claimed
that her husband was still conscious and attempting to talk to her as he lay
bleeding to death on the garage floor. All of these facts tend to show that
Rob Andrew suffered serious physical abuse, and was conscious of the fatal
attack for several minutes. See Ledbetter v. State, 1997 OK CR 5, ¶ 53,
933 P.2d 880, 896 (evidence that murder victim was likely aware that she
was about to be assaulted because defendant had attempted to kill her one
week earlier, that she tried to defend herself from the fatal attack, and that
she attempted to communicate with a neighbor after the attack was
sufficient to show that the murder was especially heinous, atrocious or
cruel).

    After finding that the murder was accompanied by torture or serious
physical abuse, the jury may also consider the attitude of the killer and the
pitiless nature of the crime. Lott, 2004 OK CR 27 at ¶ 172, 98 P.3d at 358;
Phillips v. State, 1999 OK CR 38, ¶ 80, 989 P.2d 1017, 1039. That the
victim was acquainted with his killers is a fact relevant to whether the
murder was especially heinous, atrocious, or cruel. In finding the murder in
Boutwell v. State, 1983 OK CR 17, ¶ 40, 659 P.2d 322, 329 to be especially
heinous, atrocious, or cruel, this Court observed:

          In this case the killing was merciless. The robbers planned
       well in advance to take the victim’s life. Even more abhorrent
       and indicative of cold pitilessness is the fact that the appellant
       and the victim knew each other.

   We find the situation in the present case even more pitiless. Rob

                                      20
       Andrew correctly suspected his wife of having an affair with a man he
       trusted as his insurance agent. He correctly suspected his wife and her lover
       of trying to wrest control of his life insurance away from him. He correctly
       suspected his wife and her lover of attempting to kill him several weeks
       before by severing the brake lines on his car. He confided in others that he
       was in fear of his life. Having separated from his wife, Rob Andrew was
       murdered as he returned to the family home to pick up his children for the
       Thanksgiving holiday. From the evidence, a rational juror could have
       concluded, beyond a reasonable doubt, that Rob Andrew had time to reflect
       on this cruel state of affairs before he died. The evidence supported this
       aggravating circumstance, and this proposition is denied.

Pavatt v. State of Oklahoma (Pavatt I), 159 P.3d 272, 294-95 (Okla. Crim. App. 2007)

(internal paragraph numbers omitted).

                                    Standard of review

       Because Pavatt’s challenge to the sufficiency of evidence supporting the HAC

aggravator was previously addressed and rejected on the merits by the OCCA, our scope

of review is circumscribed by 28 U.S.C. § 2254(d). See Montgomery v. Louisiana, —

U.S. —, 136 S. Ct. 718, 740 (2016) (“federal court[s] ha[ve] no inherent habeas corpus

power, but only that which is conferred (and limited) by statute.”); Harrington v. Richter,

562 U.S. 86, 92 (2011). Section 2254(d) provides:

       An application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to
       any claim that was adjudicated on the merits in State court proceedings
       unless the adjudication of the claim–

              (1) resulted in a decision that was contrary to, or involved an
              unreasonable application of, clearly established Federal law, as
              determined by the Supreme Court of the United States; or

              (2) resulted in a decision that was based on an unreasonable
              determination of the facts in light of the evidence presented in the
              State court proceeding.

                                             21
28 U.S.C. § 2254(d).

                  Clearly established federal law applicable to the claim

       In determining whether Pavatt is entitled to federal habeas relief under §

2254(d)(1), we must identify the “clearly established Federal law” that applies to Pavatt’s

claim. As the majority correctly notes, aggravating factors in a capital case, such as the

HAC aggravator found by the jury in Pavatt’s case, “operate as ‘the functional equivalent

of an element of a greater offense.’” Ring v. Arizona, 536 U.S. 584, 609 (2002) (quoting

Apprendi v. New Jersey, 530 U.S. 466, 494 (2000)). Consequently, due process requires

that the evidence presented at trial be sufficient to support an aggravator. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). In assessing a sufficiency-of-evidence challenge to

an aggravator, “the relevant question [therefore] is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (emphasis in original).

                                    Merits of the claim

       The majority opinion does not directly address this claim. It does, however, seem

to concede that “a reasonable juror could have found” the State’s evidence “to be

sufficient evidence of conscious physical suffering.” Maj. Op. at 24. With this I would

agree. And, in any event, I conclude, for the reasons outlined below, that the OCCA’s

resolution of the claim was neither contrary to nor an unreasonable application of clearly

established federal law.

       In challenging the OCCA’s decision, Pavatt begins by offering his own summary

                                             22
of the relevant evidence, arguing that the crime at issue resulted in “[a] shotgun death”

that involved “no conscious suffering beyond what accompanies any murder.” Aplt. Br.

at 21. According to Pavatt, “[t]here was no gratuitous violence,” “no torture,” and “no

anguish or suffering beyond that which necessarily accompanied the underlying killing.”

Id. Further, Pavatt argues that “[t]he two shotgun blasts were both independently fatal”

and Rob Andrew “could not have remained conscious for more than a few moments,

before going into shock and quickly bleeding to death.” Id. at 21-22. In sum, Pavatt

argues, “[i]f Rob Andrew’s homicide was ‘heinous, atrocious or cruel,’ then any murder

in which the victim does not die instantly satisfies this factor.” Id. at 22.

       The problem with Pavatt’s description of the evidence is that it wholly ignores the

standard of review mandated by the Supreme Court in Jackson. As we have noted,

Jackson requires a reviewing court to “view[] the evidence in the light most favorable to

the prosecution.” 443 U.S. at 319. When that standard is applied to the evidence

presented in Pavatt’s case, it simply does not support his description of the relevant facts.

Although it is true that each of the shotgun blasts were independently lethal, Pavatt is

simply incorrect in asserting that Rob Andrew “could not have remained conscious for

more than a few moments.” Aplt. Br. at 21. Indeed, the medical examiner who testified

on behalf of the prosecution conceded it was possible that Rob Andrew remained

conscious for several minutes after sustaining the wounds. And that testimony, combined

with Brenda Andrew’s statements to the 911 operator regarding Rob Andrew’s condition

(which we will discuss in greater detail below), would have allowed the jury to



                                              23
reasonably find that he indeed remained conscious far longer than “a few moments.”

       Pavatt also argues that the OCCA “relied on irrelevant speculation about what Rob

[Andrew] was feeling.” Aplt. Br. at 24. In support, Pavatt examines and attempts to

discredit each of the factors cited by the OCCA in support of its determination. To begin

with, Pavatt asserts that “[t]he ‘numerous wounds’ referred to by the OCCA were caused

by pellets from the same shotgun, shot at nearly the same time.” Id. at 32. Although

Pavatt is correct on this point, that does not prove the OCCA’s determination to be

wrong. Indeed, the medical examiner testified at trial that the two shotgun blasts

damaged Rob Andrew’s right lung, aorta, and liver. In addition, the photographs of Rob

Andrew’s body quite clearly indicate that the shotgun pellets caused numerous, separate

entry and exit wounds on his body. And, although Pavatt asserts that these wounds “did

not contribute to an inordinate amount of conscious pain prior to death,” id. at 30, the

medical examiner testified to the contrary, noting the wounds would, indeed, have been

painful.

       Pavatt in turn argues that, contrary to the OCCA’s determination, “the quick loss

of blood from both wounds resulted in shock and loss of consciousness within one

minute.” Id. But this argument ignores, and is ultimately contrary to, the testimony of

the medical examiner. The medical examiner testified that, as a result of the blood loss

associated with the wounds, Rob Andrew would have lost consciousness before he

actually died. The medical examiner declined on direct examination to give an exact

amount of time that Rob Andrew remained conscious after sustaining the wounds. On



                                             24
cross-examination, the medical examiner agreed that it was possible that Rob Andrew

died less than one minute after sustaining the wounds, but he also testified that Rob

Andrew “probably” would have lost consciousness within five minutes. Tr. at 2462.

And, on redirect, the medical examiner testified it was possible that Rob Andrew

remained conscious for more than one minute after sustaining the wounds. Ultimately,

the medical examiner’s testimony, construed in the light most favorable to the

prosecution, would have allowed the jury to find that Rob Andrew remained conscious

for several minutes after sustaining the wounds.

       Pavatt argues that the fact that Rob Andrew was found “clutching the plastic trash

bag was meaningless in determining whether [he] consciously suffered and thus, it was

unreasonable for the OCCA to speculate about why [he] may have been holding the bag.”

Aplt. Br. at 30. I disagree. It is unknown whether Rob Andrew was holding the trash bag

prior to being ambushed, or whether, instead, he was able to pick up the bag and attempt

to fend off his attacker after sustaining one or both shotgun blasts. Because the OCCA

was obligated to view the evidence in the light most favorable to the prosecution, it was

entirely reasonable for it to draw the latter inference. And that inference was relevant to

the OCCA’s assessment of the sufficiency of the evidence supporting the HAC

aggravator because it would have supported a finding that Rob Andrew remained

conscious, and indeed mobile, after one or both shotgun blasts.

       Pavatt also complains that it was unreasonable for the OCCA “to conclude that

Rob consciously suffered based on Brenda’s statements in her 911 calls, when everything



                                             25
she said in those calls was determined to be false.” Id. The fallacy of this argument,

however, is the notion that all of Brenda’s statements to the 911 operator were proven to

be false. The fact of the matter is that at least some of Brenda’s statements during the two

911 calls were obviously true. For example, it is undisputed that she was physically

present with Rob Andrew after he suffered the two shotgun blasts and during at least the

second 911 call. Further, her statements to the 911 operator that she and Rob Andrew had

been shot were indisputably true. Likewise, some of her statements describing what she

was witnessing, such as the arrival of police officers to her house, were also quite clearly

true (indeed, officers’ voices can be heard in the background during the second 911 call at

the precise time that Brenda tells the 911 operator that the police have arrived on the

scene). Thus, the jury, having listened to recordings of both 911 calls, was left to decide

whether her statements to the 911 operator regarding Rob’s condition, including her

statement that he was conscious and attempting to talk to her, and her repeated statements

that he was breathing, were credible or not. Although the jury was not bound to give

credence to those statements, it was certainly within the jury’s province to do so. See

Perry v. New Hampshire, 132 S. Ct. 716, 732 (2012) (noting it is “the jury’s task [to]

assess[] witness credibility and reliability”). Consequently, I conclude it was in turn

reasonable for the OCCA, applying the standard of review mandated by Jackson, to treat

as credible Brenda’s statements regarding Rob Andrew’s condition in assessing the

sufficiency of the evidence to support the HAC aggravator.

       Finally, Pavatt argues that no “deference [should be] afforded [the jury’s verdict]



                                             26
under Jackson” because “[t]here were no conflicting facts about how Rob [Andrew]

died.” Aplt. Br. at 22. I disagree. Jackson provides, in relevant part, that “a federal

habeas corpus court faced with a record of historical facts that supports conflicting

inferences must presume—even if it does not affirmatively appear in the record—that the

trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.” at 326. That is precisely the situation we have here. As we have already

explained, the evidence presented at Pavatt’s trial most certainly “supports conflicting

inferences” regarding how long Rob Andrew remained conscious after sustaining the two

shotgun blasts. We therefore presume that the jury in Pavatt’s trial, having found the

existence of the HAC aggravator, resolved these conflicts in favor of the prosecution.

And, in turn, we, like the OCCA, must defer to that resolution.

       In sum, I conclude that Pavatt has failed to establish that the OCCA’s

determination that the evidence was sufficient to support the HAC aggravator was

contrary to, or involved an unreasonable application of, clearly established federal law.

Thus, Pavatt is not entitled to federal habeas relief on this claim.

                                              D

       In his third and final challenge, Pavatt argues that the HAC aggravating

circumstance, as applied in his case, is unconstitutionally vague in violation of the Eighth

Amendment. The majority agrees with Pavatt and indeed grants him federal habeas relief

on the basis of this claim. In doing so, however, the majority ignores the fact that the

claim is both procedurally barred and not properly before this court. Moreover, even



                                              27
ignoring these procedural problems, the majority’s analysis ignores the fact that the jury’s

finding of the HAC aggravator in Pavatt’s case is entirely consistent with the body of

OCCA case law that has tailored and applied the HAC aggravating circumstance in a

manner that avoids the arbitrary and capricious infliction of the death penalty.

Consequently, Pavatt is not entitled to federal habeas relief on the basis of this claim.

                     Pavatt’s failure to present the claim to the OCCA

       In his second application for state post-conviction relief, Pavatt argued to the

OCCA that the HAC aggravating circumstance was facially vague, in violation of the

Eighth and Fourteenth Amendments (i.e., a facial challenge to the HAC aggravating

circumstance). The OCCA declined to review the merits of that claim, noting that the

claim could have been raised in Pavatt’s first application for state post-conviction relief.

       At no point has Pavatt ever argued to the OCCA that the HAC aggravating

circumstance, as applied in his case, is unconstitutionally vague in violation of the Eighth

and Fourteenth Amendments (an as-applied challenge). Consequently, the OCCA has

never had an opportunity to address that claim. And, were Pavatt to attempt to present the

claim now to the OCCA, by way of a belated application for state post-conviction relief,

the OCCA would presumably treat it as untimely and procedurally barred. Thus, the

claim has been procedurally defaulted for purposes of federal habeas review. See

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (“This rule [allowing a federal

habeas court’s consideration of fairly presented federal claims] does not apply if the

petitioner failed to exhaust state remedies and the court to which the petitioner would be



                                             28
required to present his claims in order to meet the exhaustion requirement would now find

the claims procedurally barred. In such a case there is a procedural default for purposes

of federal habeas . . . .”); Cole v. Trammell, 755 F.3d 1142, 1169 (10th Cir. 2014) (“Cole

has never presented this argument to the Oklahoma state courts and it is therefore

unexhausted and subject to an anticipatory procedural bar.”).

                              Pavatt’s federal habeas petition

       In his federal habeas petition, Pavatt reasserted his facial challenge to the HAC

aggravating circumstance. More specifically, in Ground Thirteen of his petition, Pavatt

argued that the Eighth and Fourteenth Amendments were violated by Oklahoma’s

continued use of what he described as “the facially vague aggravating circumstance that a

murder is: especially heinous, atrocious, or cruel.” Dist. Ct. Docket No. 42 at 172

(capitalization omitted).

       And, for the first time ever, Pavatt hinted at the possibility of an as-applied

challenge to the HAC aggravating circumstance, but did not directly assert that as an

independent ground for federal habeas relief. In Ground Ten of his petition, Pavatt

argued, as he had on direct appeal, that the evidence presented at trial was constitutionally

insufficient to allow the jury to find the existence of the HAC aggravating circumstance.

As part of his Ground Ten arguments, Pavatt asserted for the first time ever that his

sentence “did not comport with the Eighth and Fourteenth Amendments,” id. at 147, and

he compared the facts of his case to other Oklahoma capital cases that purportedly

involved victims who survived for a brief time after being injured. Id. at 150-51, 154-55.



                                             29
       The district court concluded that Ground Thirteen–Pavatt’s facial challenge to the

HAC aggravating circumstance–was “barred from federal review” because the OCCA

had declined to review it due to Pavatt’s failure to raise it in a timely fashion. Dist. Ct.

Docket No. 91 at 90. As for Ground Ten, both the respondent and the district court

understandably treated it as alleging only an insufficiency-of-evidence claim and not an

as-applied vagueness challenge to the HAC aggravating circumstance. See Dist. Ct.

Docket No. 69 at 128 (“In Ground Ten, Petitioner alleges that insufficient evidence was

presented at trial to support the jury’s finding of the especially heinous, atrocious or cruel

aggravator.”); Dist. Ct. Docket No. 91 at 80 (“In Ground Ten, Petitioner challenges the

sufficiency of the evidence supporting the jury’s finding that Rob’s murder was especially

heinous, atrocious, or cruel.”). Because Pavatt had raised an insufficiency-of-evidence

challenge on direct appeal, the respondent conceded that the claim was “exhausted for

purposes of federal habeas review,” Dist. Ct. Docket No. 69 at 128, and the district court

agreed. Dist. Ct. Docket No. 91 at 81-82. Ultimately, the district court rejected Pavatt’s

insufficiency-of-evidence claim, applying the deferential standard of review outlined in

§ 2254(d). Id. at 83-84 (“Based on the presented evidence, and with acute awareness of

the double deference applied by the Court in the resolution of this claim, the Court finds

that Petitioner has not shown that this decision by the OCCA is contrary to or an

unreasonable application of Supreme Court law.”).



                                Pavatt’s appeal to this court



                                              30
         Although the district court denied Pavatt a COA, this court, in a November 24,

2014 case management order, granted Pavatt a COA as to four claims, including (1) the

question of “[w]hether there was sufficient evidence to support the ‘especially heinous,

atrocious, or cruel’ aggravator (raised in Ground 10 of [his] habeas petition),” and (2)

“whether the trial court’s failure to provide an adequate instruction to the jury that it must

find ‘conscious physical suffering’ beyond a reasonable doubt before finding that the

murder was ‘especially heinous, atrocious, or cruel’ violated . . . Pavatt’s constitutional

rights to a fair trial, a reliable sentencing determination, and due process (raised in

Ground 11 of [his] habeas petition).” Case Mgmt. Order at 1-2. Notably, the case

management order made no mention of Pavatt’s as-applied or facial vagueness challenges

to the HAC aggravating circumstance. Thus, those arguments are not properly before this

court.

         Nevertheless, Pavatt, in what amounts to either ignorance or defiance of the case

management order, filed appellate pleadings inserting as-applied vagueness arguments

into his discussion of his insufficiency-of-evidence claim.

                                    The majority opinion

         Remarkably, the majority opinion ignores all of these procedural problems and

ultimately grants Pavatt federal habeas relief on the basis of his as-applied vagueness

arguments. I disagree with this approach and would reject Pavatt’s as-applied arguments

as (1) not properly before this court because no COA was granted on those arguments,

and (2) subject to an anticipatory procedural bar due to Pavatt’s failure to present them to



                                              31
the OCCA.

       The majority opinion also, curiously, purports to apply the deferential AEDPA

standards to Pavatt’s as-applied arguments, even though it is quite clear that those

arguments were never presented to or addressed by the OCCA. Indeed, the majority

opinion takes the OCCA to task for failing to “apply[] or even consider[] controlling

Supreme Court precedent,” and in turn concludes that the OCCA’s “decision [was]

contrary to clearly established federal law.” Maj. Op. at 29. But that begs the question of

what OCCA decision the majority opinion is referring to?

                       The merits of Pavatt’s as-applied arguments

       Even if I were to ignore the serious procedural defects described above and reach

the merits of Pavatt’s as-applied challenge to the HAC aggravating circumstance, I would

reach a different conclusion than the majority.

       OCCA case law, which the majority all but ignores, identifies at least two

categories of murders that the HAC aggravator does not apply to, and both are

distinguishable from the murder committed by Pavatt. The first category of murders are

those in which the victim dies instantaneously or nearly so. A perfect case in point is

Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). The defendant in that case shot

and killed two victims who were traveling inside of a car. The first victim, who was

driving the car at the time of the shooting, “was shot four times,” including “a grazing

gunshot wound to the right shoulder, two superficial gunshot wounds to the left side of

his back, and an ultimately fatal gunshot wound to his chest.” Id. at 902. “Although [this



                                             32
victim] was initially conscious after being shot, his breathing became labored and he

made gurgling sounds as his chest filled with blood before he died.” Id. at 902-03.

“There was [also] testimony that immediately after he had been shot, [this victim] was

able to speak, was aware that he had been shot and was fearful that the shooters would

return.” Id. at 903. “Reviewing th[is] evidence in the light most favorable to the State,”

the OCCA concluded “that the evidence support[ed]” the jury’s “finding that [this

victim’s] death was preceded by physical suffering and mental cruelty.” Id. “With regard

to the murder of [the second victim, who was the front seat passenger], the evidence

showed that his death was nearly immediate.” Id. In particular, he “suffered numerous

gunshot wounds including wounds to his head and chest” and “[t]he Medical Examiner

testified that [his] injuries were not survivable and he likely died within seconds after

being shot.” Id. Notably, the OCCA concluded that this “evidence d[id] not show,

beyond a reasonable doubt and in a light most favorable to the State, that [the second

victim’s] death was preceded by torture or that he endured conscious physical suffering

before dying.” Id. In short, the OCCA in Simpson drew a distinction between murders in

which the victim’s death is instantaneous and murders in which the victim experiences

conscious physical suffering for some period of time after being wounded.

       Notably, Simpson is but one of many cases in which the OCCA has refused to

allow application of the HAC aggravating circumstance where a murder victim’s death

was instantaneous or nearly so. Indeed, Pavatt cites to numerous such cases in his

opening appellate brief (I cite these cases in the same order they are listed in that brief).



                                              33
See Brown v. State, 753 P.2d 908, 912 (Okla. Crim. App. 1988) (victim was shot seven

times, including once in the aorta and once in the heart; no evidence was presented

indicating that victim was conscious after one or more of the shots); Davis v. State, 888

P.2d 1018, 1021 (Okla. Crim. App. 1995) (“No testimony indicated that the victims who

died were conscious or suffered pain at any time.”); Sellers v. State, 809 P.2d 676, 690

(Okla. Crim. App. 1991) (no evidence that any of the three victims were conscious or

suffered after being shot by the defendant); Booker v. State, 851 P.2d 544, 548 (Okla.

Crim. App. 1991) (concluding that testimony of medical examiner, regarding victim who

was shot in the chest with a shotgun, was “as consistent with instantaneous death as any

other possibility”); Marquez v. State, 890 P.2d 980, 987 (Okla. Crim. App. 1995) (noting

that the victim “was shot approximately three times while asleep,” “[t]he injuries caused

by two of the shots could have been fatal,” and one of those shots “would have caused

death nearly instantaneously.”); Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App.

1995) (striking HAC aggravator where the shooting at issue lasted only seconds and some

of the wounds would have rendered the victim immediately unconscious); Myers v. State,

133 P.3d 312, 332 (Okla. Crim. App. 2006) (“The evidence does not prove [the victim]

was conscious and aware of her attack or that she was conscious and alive suffering pain

after the attack.”); Crawford v. State, 840 P.2d 627, 641 (Okla. Crim. App. 1992) (“No

testimony was elicited by either the State or the defense as to the level of suffering by the

decedent,” and “no evidence was presented to show that the decedent did not die instantly

as a result of the strangulation.”); Battenfield, 816 P.2d at 565 (assistant medical



                                             34
examiner testified “that the type of blow to the victim’s head would generally cause loss

of consciousness immediately.”).

       The second, and undeniably more limited, category of murders that the OCCA has

indicated do not warrant application of the HAC aggravator are those in which death is

not instantaneous, but where the victim, though conscious for some period of time, does

not experience severe physical suffering. This category is exemplified by Cudjo v. State,

925 P.2d 895 (Okla. Crim. App. 1996). The murder victim in that case was shot a single

time in the back of the head. Although the victim “was aware he had been injured, he

was not sure what type of wound he had received (i.e. gun shot wound or blow to the

head).” Id. at 901. “Moreover, the gravity of [the victim’s] injury was not apparent to

others at the [crime] scene.” Id. For example, one police officer testified that the victim

“was coherent and making sense.” Id. Another police officer testified that the victim

indicated “he was all right.” Id. At worst, the evidence indicated that the victim

“experienced nausea, vomiting and shortness of breath and complained about his head

hurting.” Id. Ultimately, after being taken to a local hospital, the victim “became

unresponsive and . . . later died.” Id. The defendant in Cudjo argued on direct appeal that

this evidence was insufficient to support the jury’s finding of the HAC aggravating

circumstance. The OCCA agreed, noting that while the victim “did experience some

conscious physical or mental suffering prior to his death, the evidence fail[ed] to

demonstrate that the murder was preceded by torture or serious physical abuse.” Id.

       Pavatt’s case does not fit within, and is reasonably distinguishable from, these two



                                             35
categories of cases. Comparing Pavatt’s case to Simpson, it is readily apparent that Rob

Andrew’s situation was most similar to that of the first victim in Simpson, who remained

conscious after being shot and experienced severe physical suffering, and was

distinguishable from that of the second victim in Simpson, who died almost

instantaneously after being shot. Pavatt’s case is also distinguishable from Cudjo for the

simple reason that the evidence in Pavatt’s case would have allowed the jury to find that

Rob Andrew, unlike the victim in Cudjo, experienced significant pain for a period of time

before dying. Thus, contrary to what the majority may say, Pavatt’s case can be

distinguished in a “principled way” from numerous Oklahoma cases in which the OCCA

has held that the HAC aggravating circumstance cannot be applied.

                                             III

       One final matter deserves mention. The majority opinion cryptically “reverse[s]

the denial of [federal habeas] relief with respect to [Pavatt’s] sentence and remand[s] to

the district court for further proceedings.” Maj. Op. at 2. The majority opinion also notes

that “[t]he jury . . . found the remuneration aggravator” and that “[t]he parties have not

presented arguments on what effect that has on the disposition of this case.” Id. at 13 n.3.

In my view, it is unclear what these statements are intended to mean for the district court

and the parties. Moreover, I submit that the only remedy that the district court may

impose in light of the Sixth Amendment is to order the State of Oklahoma to provide

Pavatt with a new sentence proceeding within a reasonable time. Cf. Hooks v. Workman,

689 F.3d 1148, 1208 (10th Cir. 2012) (“We therefore grant the writ with respect to Mr.



                                             36
Hooks’s sentence, subject to the condition that the State of Oklahoma resentence him

within a reasonable time.”).

       Oklahoma law outlines three possible sentencing options for a person convicted of

murder in the first degree: death, imprisonment for life without parole, or imprisonment

for life. Okla. Stat. tit. 21, § 701.9(A). Where, as here, the State seeks imposition of the

death penalty, Oklahoma law requires the trial court to “conduct a separate sentencing

proceeding” before a jury.3 Id. § 701.10(A). At this separate sentencing proceeding,

“evidence may be presented as to any mitigating circumstances or as to any of the

[statutory] aggravating circumstances.” Id. § 701.10(C). In order for the jury at the

separate sentencing proceeding to recommend a sentence of death, Oklahoma law

requires the jury to make two related findings of fact. First, the jury must unanimously

find beyond a reasonable doubt the existence of one or more of the statutory aggravating

circumstances. Id. § 701.11. Second, the jury must then unanimously find that any such

aggravating circumstance(s) outweigh the mitigating circumstances alleged by the

defendant. Id.

       Oklahoma’s capital sentencing scheme in turn requires the OCCA to review every

sentence of death that is imposed and determine, in pertinent part, whether the evidence

supports each of the statutory aggravating circumstances found by the jury. Id. §



       3
        The separate sentencing proceeding is typically held before the same jury that
found the defendant guilty of murder in the first degree. Okla. Stat. tit. 21, § 701.10(A).
But where error is determined to have occurred in the original capital sentencing
proceeding, the state trial court is authorized “to impanel a new sentencing jury who shall
determine the sentence of the defendant.” Id. § 701.10a(1)(b).

                                             37
701.13(C)(2). The OCCA is expressly authorized by statute to “[a]ffirm the sentence of

death” or to “[s]et the sentence aside and remand the case for resentencing by the trial

court.” Id. § 701.13(E). The statute also appears to imply that the OCCA can “correct[]”

any errors in the sentence. Id. And, indeed, the OCCA has at times done just that by

engaging in its own reweighing after invalidating an aggravating circumstance. E.g.,

Moore v. State, 809 P.2d 63, 65-66 (Okla. Crim. App. 1991).

       Historically, the Supreme Court has allowed for such independent reweighing by

state appellate courts. See Richmond v. Lewis, 506 U.S. 40, 49 (1992) (“Where the death

sentence has been infected by a vague or otherwise constitutionally invalid aggravating

factor, the state appellate court or some other state sentencer must actually perform a new

sentencing calculus, if the sentence is to stand.”); Clemons v. Mississippi, 494 U.S. 738

(1990) (“We see no reason to believe that careful appellate reweighing of aggravating

against mitigating circumstances in cases such as this would not produce ‘measured

consistent application’ of the death penalty or in any way be unfair to the defendant.”).

       But that precedent appears to be of questionable validity in light of the Supreme

Court’s recent decision in Hurst v. Florida, – U.S. –, 136 S. Ct. 616 (2016). At issue in

Hurst was the constitutionality of Florida’s capital sentencing scheme. Under that

scheme, a capital defendant could be sentenced to death “only if an additional sentencing

proceeding ‘result[ed] in findings by the court that such person shall be punished by

death.’” Id. at 617 (quoting Fla. Stat. § 775.082(1)). More specifically, the trial judge

had to “independently find and weigh the aggravating and mitigating circumstances



                                             38
before entering a sentence of life or death.” Id. The Supreme Court “h[e]ld this

sentencing scheme unconstitutional.” Id. at 619. In doing so, the Court explained that

“[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to

impose a sentence of death.” Id.; see also Ring, 536 U.S. at 589 (“Capital defendants, no

less than noncapital defendants, we conclude, are entitled to a jury determination of any

fact on which the legislature conditions an increase in their maximum punishment.”).

       To be sure, the Supreme Court has not yet revisited the issue of appellate

reweighing since issuing Hurst. But the implications of Hurst seem clear. Appellate

reweighing, at least under a capital sentencing scheme like the one at issue in Oklahoma,

requires an appellate court to make a new and critical finding of fact, i.e., whether the

remaining valid aggravating circumstances outweigh any mitigating circumstances

alleged by the defendant. In light of Hurst, it appears clear that such a factual finding can

be made only by a jury. All of which leaves only one option in this case: grant the writ

subject to the State of Oklahoma affording Pavatt with a new sentencing proceeding.4

                                              IV

       Because I conclude that all of the issues asserted by Pavatt in this appeal lack

merit, I would affirm the district court’s denial of Pavatt’s petition for writ of habeas

corpus.

       4
        By determining that the evidence presented at Pavatt’s sentencing proceeding
was insufficient to support the jury’s finding of the HAC aggravating circumstance, the
majority’s decision in this case necessarily invalidates not only that aggravating
circumstance, but also the jury’s ultimate, and inextricably intertwined finding that the
aggravating circumstances that it found outweighed the mitigating circumstances alleged
by Pavatt.

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