FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           June 27, 2019

                                                                            Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                               Clerk of Court
                        _________________________________

 JAMES DWIGHT PAVATT,

       Petitioner - Appellant,

 v.                                                           No. 14-6117

 MIKE CARPENTER, 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 (Patti Palmer Ghezzi, with her on the briefs), Assistant Federal Public
Defenders, Office of the Federal Public Defender for the Western District of Oklahoma,
Oklahoma City, Oklahoma, appearing for Appellant.

Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General, with her
on the briefs), Office of the Attorney General for the State of Oklahoma, Oklahoma City,
Oklahoma, appearing for Appellee.
                          _________________________________

Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ,
HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID,
and CARSON, Circuit Judges.
                     _________________________________

BRISCOE, Circuit Judge.
                     _________________________________
       Petitioner James Pavatt was convicted by an Oklahoma jury of first degree murder

and conspiracy to commit first degree murder. Pavatt was sentenced to death for the first

degree murder conviction and ten years’ imprisonment for the conspiracy conviction.

After exhausting his state court remedies, Pavatt filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The district court denied Pavatt’s petition, and also denied

Pavatt a certificate of appealability (COA). Pavatt sought and was granted a COA by this

court with respect to five issues.

       The original hearing panel affirmed the district court’s denial of relief with respect

to Pavatt’s convictions, but in a divided decision reversed the denial of relief with respect

to Pavatt’s death sentence and remanded to the district court for further proceedings. In

doing so, the panel majority concluded that the Oklahoma Court of Criminal Appeals

(OCCA) “did not apply a constitutionally acceptable interpretation of Oklahoma’s

[especially heinous, atrocious, or cruel (HAC)] aggravator in determining [on direct

appeal] that the aggravator was supported by sufficient evidence.” Pavatt v. Royal, 

, 1132 (10th Cir. 2017) (Pavatt Federal Appeal).1




       1
         The original panel decision issued on June 9, 2017. Pavatt v. Royal, 

(10th Cir. 2017). Later, a majority of the panel members denied panel rehearing, but
filed an amended decision sua sponte and nunc pro tunc to the original filing date. Pavatt
Federal Appeal (

). In an order dated October 2, 2018, the respondent’s
petition for rehearing en banc was granted. Pavatt v. Carpenter, 

(10th Cir.
2018). The grant of en banc rehearing vacated the original judgment and stayed the
mandate. 10th Cir. R. 35.6.


                                              2
       Respondent filed a petition for rehearing en banc.2 We granted respondent’s

petition and directed the parties to file supplemental briefs addressing a number of

questions concerning Pavatt’s challenges to the HAC aggravator. Having received those

briefs and after additional oral arguments addressing those questions, we conclude that

Pavatt’s Eighth Amendment “as-applied” challenge to the HAC aggravator—the issue

that the original panel majority relied on in granting him relief—is, for a number of

reasons, procedurally barred. We also conclude that the other issues raised by Pavatt on

appeal lack merit. Consequently, we vacate the prior panel opinion and affirm the district

court’s denial of federal habeas relief with respect to both Pavatt’s convictions and death

sentence. We also deny Pavatt’s request for an additional COA.

                                             I

                                   Factual background

       The background facts of Pavatt’s crimes were outlined by the OCCA in resolving

Pavatt’s direct appeal:

              [Pavatt] and his co-defendant, Brenda Andrew, were each charged
       with conspiracy and first-degree capital murder following the shooting
       death of Brenda’s husband, Robert (“Rob”) Andrew, at the Andrews’
       Oklahoma City home on November 20, 2001. [Pavatt] met the Andrews
       while attending the same church, and [Pavatt] and Brenda taught a Sunday
       school class together. [Pavatt] socialized with the Andrews and their two
       young children in mid–2001, but eventually began having a sexual
       relationship with Brenda. Around the same time, [Pavatt], a life insurance
       agent, assisted Rob Andrew in setting up a life insurance policy worth
       approximately $800,000. [Pavatt] divorced his wife in the summer of 2001.



       2
        We note that Pavatt did not seek rehearing of the original panel’s unanimous
affirmance of his convictions.
                                            3
In late September, Rob Andrew moved out of the family home, and Brenda
Andrew initiated divorce proceedings a short time later.

       Janna Larson, [Pavatt]’s adult daughter, testified that in late October
2001, [Pavatt] told her that Brenda had asked him to murder Rob Andrew.
On the night of October 25–26, 2001, someone severed the brake lines on
Rob Andrew’s automobile. The next morning, [Pavatt] and Brenda
Andrew concocted a false “emergency,” apparently in hopes that Rob
would have a traffic accident in the process. [Pavatt] persuaded his
daughter to call Rob Andrew from an untraceable phone and claim that
Brenda was at a hospital in Norman, Oklahoma, and needed him
immediately. An unknown male also called Rob that morning and made
the same plea. Rob Andrew’s cell phone records showed that one call came
from a pay phone in Norman (near Larson’s workplace), and the other from
a pay phone in south Oklahoma City. The plan failed; Rob Andrew
discovered the tampering to his car before placing himself in any danger.
He then notified the police.

        One contentious issue in the Andrews’ divorce was control over the
insurance policy on Rob Andrew’s life. After his brake lines were severed,
Rob Andrew inquired about removing Brenda as beneficiary of his life
insurance policy. However, [Pavatt], who had set up the policy, learned of
Rob’s intentions and told Rob (falsely) that he had no control over the
policy because Brenda was the owner. Rob Andrew spoke with [Pavatt]’s
supervisor, who assured him that he was still the record owner of the
policy. Rob Andrew then related his suspicions about [Pavatt] and Brenda
to the supervisor. When [Pavatt] learned of this, he became very angry and
threatened to harm Rob for putting his job in jeopardy. At trial, the State
presented evidence that in the months preceding the murder, [Pavatt] and
Brenda actually attempted to transfer ownership of the insurance policy to
Brenda without Rob Andrew’s knowledge, by forging his signature to a
change-of-ownership form and backdating it to March 2001.

       On the evening of November 20, 2001, Rob Andrew drove to the
family home to pick up his children for a scheduled visitation over the
Thanksgiving holiday. He spoke with a friend on his cell phone as he
waited in his car for Brenda to open the garage door. When she did, Rob
ended the call and went inside to get his children. A short time later,
neighbors heard gunshots. Brenda Andrew called 911 and reported that her
husband had been shot. Emergency personnel arrived and found Rob
Andrew’s body on the floor of the garage; he had suffered extensive blood
loss and they were unable to revive him. Brenda Andrew had also suffered

                                      4
a superficial gunshot wound to her arm. The Andrew children were not, in
fact, packed and ready to leave when Rob Andrew arrived; they were found
in a bedroom, watching television with the volume turned up very high,
oblivious to what had happened in the garage.

       Brenda was taken to a local hospital for treatment. Her behavior was
described by several witnesses, experienced in dealing with people in
traumatic situations, as uncharacteristically calm for a woman whose
husband had just been gunned down. One witness saw Brenda chatting
giddily with [Pavatt] at the hospital later that night.

       Rob Andrew was shot twice with a shotgun. A spent shotgun shell
found in the garage fit a 16–gauge shotgun, which is a rather unusual
gauge. Andrew owned a 16–gauge shotgun, but had told several friends
that Brenda refused to let him take it from the home when they separated.
Rob Andrew’s shotgun was missing from the home when police searched
it. One witness testified to seeing Brenda Andrew engaging in target
practice at her family’s rural Garfield County home about a week before the
murder. Several 16–gauge shotgun shells were found at the site.

        Brenda told police that her husband was attacked in the garage by
two armed, masked men, dressed in black, but gave few other details.
Brenda’s superficial wound was caused by a .22–caliber bullet, apparently
fired at close range, which was inconsistent with her claim that she was
shot at some distance as she ran from the garage into the house. About a
week before the murder, [Pavatt] purchased a .22–caliber handgun from a
local gun shop. On the day of the murder, [Pavatt] borrowed his daughter’s
car and claimed he was going to have it serviced for her. When he returned
it the morning after the murder, the car had not been serviced, but his
daughter found a .22–caliber bullet on the floorboard. In a conversation
later that day, [Pavatt] told Larson never to repeat that Brenda had asked
him to kill Rob Andrew, and he threatened to kill Larson if she did. He
also told her to throw away the bullet she had found in her car.

       Police also searched the home of Dean Gigstad, the Andrews’ next-
door neighbor. There they found evidence that someone had entered the
Gigstads’ attic through an opening in a bedroom closet. A spent 16–gauge
shotgun shell was found on the bedroom floor, and several .22–caliber
bullets were found in the attic itself. There were no signs of forced entry
into the Gigstads’ home. Gigstad and his wife were out of town when the
murder took place, but Brenda Andrew had a key to their home. The .22–
caliber bullet found in Janna Larson’s car was of the same brand as the

                                     5
       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.

Pavatt v. State, 

, 276-78 (Okla. Crim. App. 2007) (paragraph numbers and

footnotes omitted) (Pavatt I).

                                  State trial proceedings

       On November 29, 2001, the State of Oklahoma filed an information in the District

Court of Oklahoma County charging Pavatt and Brenda Andrew jointly with first degree

murder. An amended information was filed on July 19, 2002, charging Pavatt and

                                             6
Brenda Andrew with one count of first degree murder and one count of conspiracy to

commit first degree murder. At that same time, the State filed a bill of particulars

alleging the existence of three aggravating circumstances: (1) that Pavatt committed the

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

the murder for remuneration or the promise of remuneration; (2) the murder `was

especially heinous, atrocious, or cruel; and (3) the existence of a probability that Pavatt

would commit criminal acts of violence that would constitute a continuing threat to

society.

       The case against Pavatt proceeded to trial on August 25, 2003.3 At the conclusion

of the first-stage evidence, the jury found Pavatt guilty of both counts charged in the

amended information. At the conclusion of the second-stage evidence, the jury found the

existence of two aggravating circumstances: (1) that Pavatt committed the murder, or

employed another to commit the murder, for remuneration or the promise thereof; and

(2) that the murder was especially heinous, atrocious, or cruel. The jury also found that

these aggravating circumstances outweighed the mitigating circumstances and it

recommended that Pavatt be sentenced to death for the first degree murder conviction.

       Pavatt was sentenced in accordance with the jury’s recommendations on each

count of conviction.




       3
        Brenda Andrew was tried separately, convicted of both counts, and sentenced to
death. Her federal habeas appeal is currently pending in this court.


                                              7
                                   Pavatt’s direct appeal

       Pavatt filed a direct appeal asserting eighteen propositions of error. The OCCA

rejected all of Pavatt’s propositions of error and affirmed his convictions and sentences.

Pavatt 

. Pavatt filed a petition for rehearing, which was denied by the

OCCA.

       Pavatt filed a petition for writ of certiorari with the United States Supreme Court.

The Supreme Court denied Pavatt’s petition on February 19, 2008. Pavatt v. Oklahoma,

(2008).

                       Pavatt’s application for post-conviction relief

       On April 17, 2006, Pavatt filed with the OCCA an application for post-conviction

relief asserting three propositions of error. Approximately two years later, on April 11,

2008, the OCCA issued an unpublished opinion denying Pavatt’s application. Pavatt v.

State, No. PCD-2004-25 (Okla. Crim. App. Apr. 11, 2008) (Pavatt II).

                        The filing of Pavatt’s federal habeas petition

       Pavatt initiated these federal habeas proceedings on May 5, 2008, by filing a

motion for appointment of counsel. The district court granted that motion and appointed

counsel to represent Pavatt. On April 1, 2009, Pavatt’s appointed counsel filed a petition

for writ of habeas corpus asserting fifteen grounds for relief. In his petition, Pavatt

conceded that certain of the claims asserted therein were “newly developed” and “m[ight]

require further exhaustion.” ROA, Vol. 1 at 243 (Dist. Ct. Docket No. 42 at 213). As a

result, Pavatt requested that his petition “be held in abeyance so that he [could] return to


                                              8
state court to accomplish any necessary exhaustion.” 

point, however, did the

district court stay the case or otherwise hold it in abeyance to allow Pavatt to exhaust his

state court remedies.

                   Pavatt’s second application for post-conviction relief

       On September 2, 2009, while his federal habeas petition was pending in federal

district court, Pavatt filed with the OCCA a second application for post-conviction relief

asserting six propositions of error. On February 2, 2010, the OCCA issued an

unpublished opinion denying Pavatt’s second application. Pavatt v. State, No. PCD-

2009-777 (Okla. Crim. App. Feb. 2, 2010) (Pavatt III).

           The denial of Pavatt’s federal habeas petition and the instant appeal

       On May 1, 2014, the district court issued an order denying Pavatt’s petition. On

that same date, the district court entered final judgment in the case and also issued an

order denying Pavatt a COA with respect to all of the issues raised in his habeas petition.

       Pavatt filed a notice of appeal on June 2, 2014. In a case management order issued

on November 24, 2014, we granted Pavatt a COA on the following issues: (1) “[w]hether

there was sufficient evidence to support the [HAC] aggravator (raised in Ground 10 of

. . . Pavatt’s habeas petition)”; (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 . . . Pavatt’s habeas petition)”; (3) “[w]hether there


                                                9
was constitutionally ineffective assistance of trial counsel regarding the investigation of

mitigating evidence or the presentation of a meaningful case for life imprisonment (raised

in Ground 15, Claim I.I., of . . . Pavatt’s habeas petition)”; (4) “whether appellate counsel

was constitutionally ineffective in failing to raise a claim that trial counsel was

ineffective” regarding the investigation of mitigating evidence or the presentation of a

meaningful case for life imprisonment; and (5) “[w]hether trial counsel provided

constitutionally ineffective assistance regarding the introduction of a camping video, live

photographs of the victim, or testimony regarding the victim’s good traits (raised in

Ground 15, Claim I.E., of . . . Pavatt’s habeas petition), and whether appellate counsel

was constitutionally ineffective in failing to raise a claim that trial counsel was

ineffective in these regards.” Case Mgmt. Order at 1–2.

       The original hearing panel affirmed the district court’s denial of relief with respect

to Pavatt’s convictions, but in a divided decision reversed the denial of relief with respect

to Pavatt’s death sentence and remanded to the district court for further proceedings.

Respondent filed a petition for rehearing en banc, which we granted.4




       4
         Because we are vacating the original panel opinion, we must address all of the
issues originally raised by Pavatt in his opening appellate brief. That said, Pavatt did not
seek rehearing of the original panel’s unanimous affirmance of his convictions.
Consequently, our analysis of the issues related to his conviction adheres closely to the
original panel opinion.
                                             10
                                              II

                                     Standard of review

       “The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a

state prisoner seeking federal habeas relief first to ‘exhaus[t] the remedies available in the

courts of the State.’” Kernan v. Hinojosa, 

, 1604 (2016) (per curiam)

(alteration in original) (quoting 28 U.S.C. § 2254(b)(1)(A)). “If the state courts

adjudicate the prisoner’s federal claim ‘on the merits,’ § 2254(d), then AEDPA mandates

deferential, rather than de novo, review . . . .” 

court cannot grant

relief unless that adjudication:

       (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 proceedings.

28 U.S.C. § 2254(d)(1)–(2).

       “‘Clearly established Federal Law’ refers to the Supreme Court’s holdings, not its

dicta.” Wood v. Carpenter, 

, 1289 (10th Cir. 2018) (citing Williams v.

Taylor, 

, 412 (2000)), petition for cert. filed, No. 18-8666 (U.S. Mar. 29,

2019). “A state-court decision is only contrary to clearly established federal law if it

‘arrives at a conclusion opposite to that reached by’ the Supreme Court, or ‘decides a

case differently’ than the Court on a ‘set of materially indistinguishable facts.’” 

, 529 U.S. at 412–13). “But a state court need not cite the Court’s

cases or, for that matter, even be aware of them.” 

as the state-court’s

                                              11
reasoning and result are not contrary to the Court’s specific holdings, § 2254(d)(1)

prohibits [this court] from granting relief.” 

v. Packer, 

, 9

(2002) (per curiam)).

       “A state court’s decision unreasonably applies federal law if it ‘identifies the

correct governing legal principle’ from the relevant Supreme Court decisions but applies

those principles in an objectively unreasonable manner.” 

v. Smith,

, 520 (2003)). “Critically, an ‘unreasonable application of federal law is

different from an incorrect application of federal law.’” 

, 529 U.S.

at 410 (emphasis in original)). “[A] state court’s application of federal law is only

unreasonable if ‘all fairminded jurists would agree the state court decision was

incorrect.’” 

v. Pryor, 

, 1225 (10th Cir. 2014)).

       “Finally, a state-court decision unreasonably determines the facts if the state court

‘plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the

misapprehension goes to a material factual issue that is central to petitioner’s claim.’” 

v. Workman, 

, 1170–72 (10th Cir. 2011)). “But this

‘daunting standard’ will be ‘satisfied in relatively few cases.’” 

, 645

F.3d at 1172).

                 Sufficiency of evidence challenge to the HAC aggravator

       In Proposition One of his appellate brief, Pavatt challenges the sufficiency of the

evidence supporting the HAC aggravator found by the jury at the conclusion of the

second-stage proceedings. Aplt. Br. at 20. According to Pavatt, the evidence presented


                                             12
at his trial was “constitutionally insufficient” to establish that the murder of Rob Andrew

was “especially heinous, atrocious, or cruel,” and, he asserts, “[t]he OCCA’s

determination” to the contrary was “unreasonable.” 

       a) Clearly established federal law applicable to the claim

       It is clearly established that “the fundamental protection of due process of law”

requires that the evidence presented at a criminal trial, viewed in the light most favorable

to the prosecution, be sufficient to allow “any rational trier of fact [to] have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 

, 319 (1979) (emphasis in original). Because most states’ “enumerated

aggravating factors” for capital cases “operate as ‘the functional equivalent of an element

of a greater offense,’” Ring v. Arizona, 

, 609 (2002) (quoting Apprendi v.

New Jersey, 

, 494 n. 19 (2000)), this same due process requirement applies

to any aggravating factor alleged by the prosecution and found by the jury in a capital

case. Thus, in sum, a state capital defendant seeking federal habeas relief from his or her

death sentence can assert a sufficiency-of-the-evidence challenge to any of the

aggravating factors found by the jury.

       b) The OCCA’s general construction of the HAC aggravator

       Before we examine whether and how the OCCA addressed Pavatt’s sufficiency-

of-evidence challenge to the HAC aggravator, we pause briefly to review how the OCCA

has generally construed the HAC aggravator. In Stouffer v. State, 

, 563

(Okla. Crim. App. 1987), the OCCA expressly “restrict[ed] . . . application” of the HAC


                                              13
aggravator “to those murders in which torture or serious physical abuse is present.” More

specifically, the OCCA “identified two kinds of cases in which ‘torture or serious

physical abuse’ [will be deemed to be] present: those characterized by the infliction of

‘great physical anguish’ and those characterized by the infliction of ‘extreme mental

cruelty.’” Medlock v. Ward, 

, 1324 (10th Cir. 2000) (Lucero, J.,

concurring) (quoting Cheney v. State, 

, 80 (Okla. Crim. App. 1995)). “In the

mental cruelty context, the OCCA has emphasized that the torture required for finding the

‘heinous, atrocious, or cruel’ aggravator must produce mental anguish in addition to that

which of necessity accompanies the underlying killing.” 

omitted).

And, with respect to the physical anguish branch of its test, the OCCA has 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, 

, 565 (Okla. Crim. App. 1991).

       In Nuckols v. State, 

, 674 (Okla. Crim. App. 1991), the OCCA held

that the HAC aggravator “contemplates a two-step analysis.” The first step of this

analysis, the OCCA stated, requires the jury to determine whether the death of the victim

was preceded by torture or serious physical abuse. 

foundational

assessment is made,” the OCCA 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.” 

The OCCA’s resolution of Pavatt’s challenge to the HAC aggravator

       In his direct appeal, Pavatt challenged the sufficiency of the evidence supporting

the HAC aggravator. Proposition XIV of Pavatt’s direct appeal brief was titled: “There

was insufficient evidence to support the ‘especially heinous, atrocious or cruel’

aggravating circumstance.” Direct Appeal Br. at iv (capitalization omitted). In the body

of his direct appeal brief, Pavatt argued, in support of Proposition XIV, that “[t]he

evidence does not support the fact that the murder was ‘especially’ heinous, atrocious or

cruel.” 

He in turn quoted the following statement made by his defense counsel

during the second-stage closing arguments: “‘To some degree I suppose all homicides are

heinous, atrocious or cruel. I think that’s the reason why our legislature has inflicted the

term especially to that phrase.’” 

commented briefly on the evidence

presented by the state in support of the HAC aggravator:

               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)

rejected this claim on the merits:

              In Propositions 14 and 15, [Pavatt] 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.

                                             15
DeRosa [v. State], 

at ¶ 

; Lockett v.
State, 

, ¶ 39, 

, 430.

        In Proposition 14, [Pavatt] 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, 

, ¶ 39, 

, 81; Black v. State, 

, ¶ 79, 

, 1074 (evidence that victim consciously
suffered pain during and after stabbing was sufficient to support this
aggravating circumstance); Le [v. State], 

at ¶ 

; Romano v. State, 

, ¶ 70, 

, 118; Berget v.
State, 

, ¶ 31, 

, 373. Our evaluation is not a
mechanistic exercise. As we stated in Robinson v. State, 

,
¶ 36, 

, 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.
       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

                                      16
      Rob Andrew suffered serious physical abuse, and was conscious of the fatal
      attack for several minutes. See Ledbetter v. State, 

, ¶ 53,
      

, 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 [v. State], 

at ¶ 

; Phillips v. State, 

, ¶ 80, 

, 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, 

, ¶ 40, 

, 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
      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 

–95 (paragraph numbers omitted).




                                            17
       d) Pavatt’s challenge to the OCCA’s decision

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

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.”

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.” 

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.” 

       The problem with Pavatt’s description of the evidence, however, is that it wholly

ignores not only the evidence the jury heard, but also 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 

.

When that standard is applied to the evidence presented in Pavatt’s case, it simply does

not support his description of what occurred. Although it is true that each of the shotgun

blasts were independently lethal, Pavatt is 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


                                              18
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 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.” 

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.” 

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,” 

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.” 

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


                                             19
associated with the wounds, Rob Andrew would have lost consciousness before he

actually died. The medical examiner opined that Rob Andrew would have died “[l]ess

than ten” minutes after sustaining the gunshot wounds, but could have survived for five

or six minutes. Tr., Vol. X at 2457–58. The medical examiner declined on direct

examination to “give . . . an exact time” frame that Rob Andrew would have maintained

consciousness. 

On cross-examination, the medical examiner agreed that it

was possible that Rob Andrew died less than one minute after sustaining the wounds. 

On redirect, the medical examiner testified it was also 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, and considered together with other evidence presented by 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. We disagree. At trial, the prosecution presented testimony from two

witnesses on this very point. The first witness, Norman Nunley, was a longtime friend of

the Andrews. Tr., Vol. V at 1363. Nunley testified that he first learned of Rob Andrew’s

death from Brenda Andrew, when she called him the morning after the murder. 

According to Nunley, Brenda Andrew gave him a brief description of the shooting


                                           20
and, in particular, “said [that] prior to the second shot [Rob Andrew] had grabbed a trash

bag full of, like, pop cans or something and tried to hold it up between him and the gun.”

The second witness, Roger Frost, was an Oklahoma City police officer and

one of the first people to respond to Brenda Andrew’s 911 call. Frost testified that when

he arrived at the Andrews’ house, he discovered Brenda Andrew sitting in the doorway to

the garage, approximately three feet from Rob Andrew’s body. 

at 2170.

Frost further testified that he removed Brenda Andrew from the crime scene, walked her

to an area outside of her house, and had her sit on the curb so that the paramedics could

treat her. 

Frost testified that he asked Brenda Andrew for information

about what had happened and that she told him, in pertinent part, that Rob Andrew had

grabbed the plastic bag full of cans as an apparent means of self-defense. 

Because the OCCA was obligated under Jackson to view the evidence in the light most

favorable to the prosecution, it was entirely reasonable for it to accept this testimony of

Nunley and Frost as true. And that determination 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 not only conscious, but

mobile and acting defensively, after the first shotgun blast.

       Somewhat relatedly, Pavatt complains that it was unreasonable for the OCCA “to

conclude that Rob [Andrew] consciously suffered based on Brenda[ Andrew]’s

statements in her 911 calls, when everything she said in those calls was determined to be

false.” Aplt. Br. at 30. The fallacy of this argument, however, is the notion that all of


                                             21
Brenda Andrew’s statements to the 911 operator (or, for that matter, her statements to

other people, such as Mr. Nunley) were proven to be false. The fact of the matter is that

at least some of Brenda Andrew’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 Andrew 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 Andrew’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, 

, 252 (2012) (Sotomayor, J., dissenting) (noting it

is “the jury’s task [to] assess[] witness credibility and reliability”). Consequently, we

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.




                                             22
       Finally, Pavatt argues that no “deference [should be] afforded [the jury’s verdict]

under Jackson” because “[t]here were no conflicting facts about how Rob [Andrew]

died.” Aplt. Br. at 22. We reject that argument. 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 

. 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 first and then the second shotgun blasts. We therefore must

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, we 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.

                   Pavatt’s as-applied challenge to the HAC aggravator

       As part of Proposition One of his appellate brief, Pavatt also attempts to assert an

as-applied challenge to the HAC aggravator. Specifically, Pavatt argues that the OCCA,

in considering his Jackson challenge to the HAC aggravator on direct appeal,


                                              23
“unreasonably failed to follow its own precedent” that had adopted a constitutionally

narrow construction of the HAC aggravator, “compounded its historically inconsistent

approach to what Oklahoma requires to support the HAC aggravator,” and, ultimately,

applied an unconstitutionally overbroad definition of the HAC aggravator in affirming his

death sentence. Aplt. Br. at 24.

       In our October 2, 2018 order granting respondent’s petition for rehearing en banc,

we directed the parties to file supplemental briefs addressing a number of questions

concerning whether this as-applied challenge to the HAC aggravator is properly before

us. To begin with, we asked the parties whether Pavatt’s as-applied challenge was

“presented to and addressed by the OCCA,” i.e., “did Pavatt exhaust th[is] claim[] in the

Oklahoma state courts,” and, relatedly, whether the claim was procedurally barred. Order

at 2, Oct. 2, 2018.

       A threshold question in any case involving a request for federal habeas relief

under § 2254 is whether “the applicant has exhausted the remedies available in the courts

of the State.” 28 U.S.C. § 2254(b)(1)(A). Generally speaking, “[a] federal court may not

grant” an application for federal habeas relief “unless . . . the applicant has exhausted

state remedies before filing his petition.” Simpson v. Carpenter, 

, 564 (10th

Cir. 2018). “[T]o exhaust state remedies, a petitioner must give the state courts an

opportunity to act on his claims before he presents those claims to a federal court in a

habeas petition.” 

(quotations omitted). “This is accomplished by providing the

state courts one full opportunity to resolve any constitutional issues by invoking one


                                             24
complete round of the State’s established appellate review process.” 

“A claim is exhausted only after it has been fairly presented to the state court.”

“Fair presentation requires that the substance of the federal

claim was raised in state court.” 

       Pavatt, as we have noted, asserted a Jackson challenge to the HAC aggravator in

his direct appeal and the OCCA rejected that Jackson challenge. Pavatt’s original

application for state postconviction relief did not assert any issue relating to the HAC

aggravator. Proposition Five of Pavatt’s second application for state postconviction relief

asserted the following challenge to the HAC aggravator: “The Eighth and Fourteenth

Amendments to the United States Constitution are violated by Oklahoma’s continued use

of the facially vague aggravating circumstance that a murder is: especially heinous,

atrocious, or cruel.” Second Appl. for Post-Conviction Relief, at vii (capitalization

omitted). In support, Pavatt cited to various OCCA cases applying the HAC aggravator,

and he argued that, “[i]nexplicably,” the OCCA “found serious physical abuse in [his]

case, even though there was no gratuitous violence, and the killing was much like that in

Cartwright[ v. Maynard, 

(10th Cir. 1987) (en banc)].”5 

The



       5
          In Cartwright, the defendant “fire[d] two blasts from [a] shotgun” into the
victim, resulting in the victim’s death. Cartwright v. State, 

, 550 (Okla.
Crim. App. 1985). On direct appeal, the OCCA concluded that the evidence presented at
trial supported the jury’s finding of the HAC aggravator. 

In doing so,
however, the OCCA did not discuss whether the victim remained conscious after the two
shotgun blasts. Instead, the OCCA considered “the circumstances attendant to the
murder,” including the fact that the defendant had expressed the intention to get even
with the victims, that the defendant had hid inside the victims’ home waiting for them to

                                             25
OCCA concluded that Proposition Five was procedurally barred. Specifically, the OCCA

concluded that this “legal argument could have been raised in prior proceedings, but was

not,” and was “therefore waived.” Pavatt III, No. PCD-2009-777 at 6 (citing Okla. Stat.

tit. 22, § 1089(D)(8)).

       We are not persuaded, after reviewing the state court pleadings, that Pavatt fairly

presented to the OCCA the as-applied arguments that he now seeks to assert in this

federal habeas appeal. To begin with, we reject the notion that the Jackson challenge that

Pavatt asserted in his direct appeal necessarily incorporated an as-applied challenge to the

HAC aggravator. 6 Indeed, Pavatt’s Jackson claim could not have incorporated the as-



return, that he attacked the female victim (who survived the attack) upon being
discovered, that the murder victim “doubtless heard” his wife being shot and “quite
possibly experienced a moment of terror as he was confronted by the [defendant] and
realized his impending doom,” that the defendant “again attempted to kill [the female
victim] in a brutal fashion upon discovery that his first attempt was unsuccessful,” that
the defendant “attempted to conceal his deeds by disconnecting the telephone and posting
a note on the door,” and that the defendant attempted to steal goods belonging to the
victims. 

habeas review, this court, sitting en banc, held that the OCCA “failed
to apply a constitutionally required narrowing construction of [the HAC aggravator] in
this case.” 

. The Supreme Court subsequently granted
certiorari in the case and affirmed this court’s decision. Maynard v. Cartwright, 

, 366 (1988).
        Following this court’s decision in Cartwright, the OCCA “restricted the [HAC
aggravator] to those murders in which torture or serious physical abuse is present.” 

(citing Stouffer, 

).
       6
        A Jackson challenge to a jury’s finding of the HAC aggravator, which relies on
the Due Process Clause of the Fourteenth Amendment, is a separate and distinct legal
claim from an Eighth Amendment challenge to the HAC aggravator. That said, we do
not foreclose the possibility that a petitioner may, depending on the circumstances, assert
a Jackson claim and an Eighth Amendment claim in the same proceeding. We hold only

                                            26
applied arguments that he now attempts to make in this federal habeas appeal because his

as-applied arguments challenge only the manner in which the OCCA, in disposing of his

Jackson challenge on direct appeal, construed the HAC aggravator. We further conclude

that Pavatt’s second application for post-conviction relief plainly asserted a facial

vagueness challenge to the HAC aggravator, but, at best, only hinted at an as-applied

challenge to the HAC aggravator. Consequently, we conclude that the as-applied

arguments Pavatt now presents in his federal appellate brief were not fairly presented to

the OCCA and are thus unexhausted and, in turn, subject to an anticipatory procedural

bar.7 See Moore v. Schoeman, 

, 1233 n.3 (10th Cir. 2002).

       That is not the end of the matter, however, because in our October 2, 2018 order

we directed the parties to address whether “respondent, through counsel, expressly

waived the exhaustion requirement for purposes of 28 U.S.C. § 2254(b)(3)” with respect

to Pavatt’s as-applied challenge to the HAC aggravator. Order at 2, Oct. 2, 2018. We




that the Eighth Amendment as-applied claim that Pavatt now seeks to assert was not, and
could not have been, asserted in his direct appeal because it focuses on the manner in
which the OCCA applied the HAC aggravator in rejecting Pavatt’s Jackson claim on
direct appeal.
       7
           In our October 2, 2018 order, we directed the parties to address the question of
whether “this court [should] sua sponte raise the exhaustion issue.” Order at 2. Pavatt
concedes, as he must, that we possess the authority to consider the issue of exhaustion
sua sponte. Aplt. Supp. Br. at 19; see United States v. Mitchell, 

, 746 n.8
(10th Cir. 2008) (noting that “[s]ua sponte consideration of exhaustion of state remedies
. . . is explicitly permitted by Supreme Court precedent.”) (citing Gransberry v. Greer,

, 133 (1987), and Caspari v. Bohlen, 

, 389 (1994)).
                                              27
also directed the parties to address whether “respondent expressly waived [procedural

bar] as a defense.” 

which we referenced in our order, provides that “[a] State

shall not be deemed to have waived the exhaustion requirement or be estopped from

reliance upon the requirement unless the State, through counsel, expressly waives the

requirement.” 28 U.S.C. § 2254(b)(3). Having reviewed the parties’ supplemental briefs

and the record in this case, we conclude that respondent did not expressly waive the

exhaustion requirement with respect to the arguments that Pavatt now seeks to assert on

appeal.

       Ground Ten of Pavatt’s federal habeas petition plainly asserted a Jackson

challenge to the HAC aggravator, but at best (similar to his second application for state

postconviction relief) only hinted at the possibility of an as-applied challenge to the HAC

aggravator. In particular, Ground Ten of Pavatt’s federal habeas petition, in addition to

discussing in detail why the evidence presented at trial was insufficient to allow the jury

to reasonably find the HAC aggravator, mentioned but did not discuss the Eighth and

Fourteenth Amendments, and also mentioned, but did not discuss the meaning of, “a

constitutionally narrowed construction of the [HAC] aggravator.” ROA, Vol. 1 at 185

(Dist. Ct. Docket No. 42 at 155).

       Not surprisingly, neither respondent nor the district court read Ground Ten as

asserting a separate, as-applied challenge to the HAC aggravator, i.e., that the OCCA

failed, on direct appeal, to apply the HAC aggravator in a constitutionally permissible


                                             28
manner.8 Thus, neither respondent nor the district court addressed the question of

whether Pavatt had exhausted his state court remedies with respect to an as-applied

challenge to the HAC aggravator. And, accordingly, at no time did respondent expressly

waive the exhaustion requirement with respect to an as-applied challenge to the HAC

aggravator.

       To be sure, Pavatt argues in his supplemental response brief that respondent

“expressly waived” the exhaustion requirement with respect to Pavatt’s as-applied

arguments. Aplt. Supp. Br. at 18. In support, Pavatt cites to page 128 of respondent’s

answer to Pavatt’s habeas petition. A review of that cited page, however, reveals that

respondent conceded exhaustion only as to Pavatt’s Jackson claim. ROA, Vol. 3 at 560

(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 [HAC] aggravator.); 

was raised on direct appeal and the OCCA rejected it on the merits. Pavatt

–95. It is therefore exhausted for purposes of federal habeas




       8
          The district court interpreted Ground Ten as asserting a Jackson claim and also
an argument “that the OCCA applied the incorrect standard of review” in assessing
Pavatt’s insufficiency-of-evidence challenge on direct appeal. ROA, Vol. 3 at 1128
(Dist. Ct. Docket No. 91 at 80). More specifically, the district court interpreted Ground
Ten of Pavatt’s habeas petition as arguing, in part, “that the OCCA should have applied
the reasonable hypothesis test instead of Jackson” in reviewing the evidence presented at
trial, including the statements made by Brenda Andrew during the 911 call. 

(Dist. Ct. Docket No. 91 at 83 n.40). In rejecting this latter argument, the district court
noted: “it is clear that the OCCA applied Jackson and that it was the correct (and
constitutional) standard to be applied.” 

(Dist. Ct. Docket No. 91 at 82–
83).
                                              29
review.”). Thus, Pavatt’s assertion that respondent expressly waived the exhaustion

requirement with respect to Pavatt’s as-applied arguments is without merit.

       We likewise conclude that respondent did not expressly waive procedural bar as a

defense. As we have discussed, it was far from clear that Pavatt intended to assert an as-

applied challenge to the HAC aggravator in his federal habeas petition, and, in fact, both

respondent and the district court reasonably interpreted Pavatt’s habeas petition as

asserting only a Jackson challenge to the HAC aggravator. Consequently, we do not

construe any of respondent’s district court pleadings as expressly waiving procedural bar

as a defense to the as-applied claim.

       Finally, our October 2, 2018 order directed the parties to address the questions of

whether Pavatt’s as-applied challenge was “resolved by the district court,” whether “a

COA [was] granted on th[is] claim[],” and whether the claim was “included in this

court’s case management order as [an] issue[] to be raised by Pavatt.” Order at 2, Oct. 2,

2018. Because the district court reasonably did not perceive Pavatt’s habeas petition as

asserting an as-applied challenge to the HAC aggravator, it did not address, let alone

resolve, that claim, and it did not grant a COA on the claim. Nor, in turn, did this court

grant a COA on any as-applied challenge to the HAC aggravator. Consequently, the as-

applied claim was not included in this court’s case management order as an issue to be

raised by Pavatt and briefed by the parties.




                                               30
       For all of these reasons, we conclude that the as-applied challenge to the HAC

aggravator that Pavatt asserts in his federal appellate brief is not properly before us and

cannot serve as the basis for the grant of federal habeas relief.9

                          Facial challenge to the HAC aggravator

       In both Ground Eleven and Ground Thirteen of his federal habeas petition, Pavatt

referred to the HAC aggravator as being facially vague. ROA, Vol. 1 at 191, 202 (Dist.

Ct. Docket No. 42 at 161, 172). Neither Ground Eleven nor Ground Thirteen, however,

directly asserted a facial challenge to the HAC aggravator. Instead, Ground Eleven

focused on the adequacy of the instructions given to the jury in Pavatt’s case regarding

the HAC aggravator, and Ground Thirteen asserted that Oklahoma’s Uniform Jury

Instruction defining the terms “heinous,” “atrocious,” and “cruel” failed to adhere to the

constitutionally narrowing construction that had been adopted by the OCCA following

this court’s decision in Cartwright.

       Respondent did not interpret Pavatt’s habeas petition as asserting a facial

challenge to the HAC aggravator. But the district court, perhaps out of an abundance of

caution, construed Ground Thirteen as challenging the HAC aggravator “on the ground

that it is unconstitutionally vague on its face.” 

at 1138 (Dist. Ct. Docket No.

91 at 90). The district court concluded, however, that this facial challenge was “barred

from federal review” because it was “not presented to the OCCA until [Pavatt’s] second



       9
         Consequently, we do not reach the issues outlined in Questions 2(h), (i), (j), or
(k) of our October 2, 2018 Order directing the parties to file supplemental briefs, all of
which concerned the merits of Pavatt’s as-applied challenge to the HAC aggravator.
                                            31
post-conviction application.” 

court also noted, in any event, that the

OCCA had, in response to this court’s decision in Cartwright, adopted a constitutionally

narrowing construction of the HAC aggravator.

       The district court did not grant a COA as to Ground Thirteen. Likewise, we did

not grant a COA as to Ground Thirteen (or to any facial challenge to the HAC

aggravator) or include it in our case management order as an issue to be raised by Pavatt

on appeal. And, in turn, Pavatt’s opening appellate brief makes no mention of Ground

Thirteen or any facial challenge to the HAC aggravator.

       For these reasons, we conclude that there is no facial challenge to the HAC

aggravator that is properly before us.

                     Adequacy of instruction on the HAC aggravator

       In Proposition Two of his appellate brief, Pavatt contends that the state trial

court’s instructions to the jury regarding the HAC aggravator failed to adequately inform

them that they must find “conscious physical suffering” before concluding that the

murder was “especially heinous, atrocious, or cruel.”

       a) 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 [that] 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.,

Vol. VII at 1286. Pavatt subsequently filed an objection to the uniform instruction and




                                             32
verdict form regarding the HAC aggravator, arguing “that [they were] unconstitutional”

in light of the Supreme Court’s decision in Cartwright. 

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

aggravator:

                                   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.

at 2052. As for the second-stage verdict form, it simply asked the jury to

check whether or not they found the existence of each of the alleged aggravating

circumstances. 

The verdict form did not otherwise explain or attempt to

define the HAC aggravator.

       The jury, after deliberating, indicated that they found the existence of the HAC

aggravator. The jury also indicated that it found that Pavatt committed the murder for

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

for remuneration or the promise of remuneration.

       b) Pavatt’s presentation of the issue to the OCCA

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

insufficient to support the HAC aggravator, he did not challenge on direct appeal the

                                             33
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 Proposition Four of

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.” Second Appl. for Post-Conviction

Relief, at 27–31.

       c) 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 III, No. PCD-2009-777 at 5 (citing Okla. Stat. tit. 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 [Pavatt]’s conviction — in DeRosa v. State,
       

, ¶¶ 91–97, 

, 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, 

, ¶ 

(“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, 

, ¶¶ 36-38, 

, 1161-63;

                                              34
       Browning v. State, 

, ¶¶ 52-56, 

, 843-45; Rojem
       v. State, 

, ¶¶ 68–73, 

, 300-01.

n.5.

       In DeRosa, the OCCA incorporated the two-step analysis into its uniform jury

instruction defining the HAC aggravator and directed that this instruction was to “be used

in all future capital murder trials in which the” HAC aggravator was 

. 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:

                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.

emphasized that “[t]his instruction d[id] not change any of the legal

requirements of the [HAC aggravator].” 

OCCA noted, “it [wa]s

intended to more fully inform the jury regarding the findings that must be made in order



                                              35
to properly apply the aggravator and to ensure that a jury determination is made regarding

each of these findings.” 

district court’s procedural bar ruling

          The district court concluded that Pavatt’s challenge to the state trial court’s HAC

instruction was “barred from federal review.” ROA, Vol. 3 at 1138 (Dist. Ct. Docket No.

91 at 90). 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.” 

(Dist. Ct. Docket No. 91

at 31). The district court also concluded that “the OCCA’s procedural bar here [wa]s

adequate and independent.” 

(Dist. Ct. Docket No. 91 at 32). 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.” 

(Dist. Ct. Docket No. 91

at 33).

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

          Pavatt 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, 

(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.’” 

46 P.3d at 710). “The merits inquiry,” Pavatt asserts, “is thus part of the


                                                36
default consideration, and therefore, lacks independence as in Ake v. Oklahoma, 

, 74-75 (1985).” 

“the OCCA held that [the defendant] 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,

, 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.” 

470 U.S. at 74–75). “Thus, the

OCCA could not apply the waiver rule without first addressing the federal constitutional

error.” 

Court concluded that the state waiver rule was therefore not an

independent state ground for barring review.” 

case, the OCCA based its denial upon Oklahoma’s Post-Conviction

Procedure Act, Okla. Stat. tit. 22, § 1089(D)(8). That statute provides, in pertinent part,

that “if a subsequent application for post-conviction relief is filed after filing an original

application,” the OCCA “may not consider the merits of or grant relief based on the

subsequent . . . application unless” it “contains claims and issues that have not been and

could not have been presented previously in a timely original application . . . because the

legal basis for the claim was unavailable.” Okla. Stat. tit. 22, § 1089(D)(8).

       “Federal habeas courts generally refuse to hear claims ‘defaulted . . . in state court

pursuant to an independent and adequate state procedural rule.’” Johnson v. Lee, 136 S.

Ct. 1802, 1803–04 (2016) (per curiam) (quoting Coleman v. Thompson, 

,


                                              37
750 (1991)). “State [procedural] rules count as ‘adequate’ if they are ‘firmly established

and regularly followed.’” 

(quoting Walker v. Martin, 

, 316

(2011)).

       We have repeatedly held that the Oklahoma statute that was relied on by the

OCCA in this case—§ 1089(D)(8) of Oklahoma’s Post-Conviction Procedure Act—

“satisfies both adequacy criteria.” 

; see Williams v. Trammell, 

,

1212 (10th Cir. 2015) (holding “that the OCCA’s ban on successive post-conviction

applications is . . . a firmly established and consistently followed rule.”); Thacker v.

Workman, 

, 835–36 (10th Cir. 2012) (same); Moore v. Reynolds, 

, 1097 (10th Cir. 1998) (same).

       But Pavatt asserts, like some other Oklahoma capital defendants have in the past,

that in light of Valdez, the exception makes the rule and the OCCA’s reliance on

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

federal law.” Fairchild v. Trammell, 

, 719 (10th Cir. 2015). 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.”

held, however, “the Valdez exception only applies in cases involving an

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




                                             38
consistent application of its procedural-bar rule in the vast majority of cases.”10

(quotations and 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 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 v. Trammell, 

, 1158-59 (10th

Cir. 2014) (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); 

n.5 (same). We therefore agree with the

district court that Pavatt’s challenge to the HAC instruction is procedurally barred.

       f) The merits of Pavatt’s claim

       Even if we were to conclude that the claim is not procedurally barred, it cannot

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

(10th Cir. 2003) and Wilson v. Sirmons, 

(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



       10
          “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.” 

.
                                              39
required by Supreme Court precedent. 

; 

.

                Ineffective assistance of trial and appellate counsel

        We granted a COA in our case management order on three distinct ineffective

assistance of counsel claims. Pavatt addresses these claims in Proposition Three of his

opening brief. First, he argues that his trial counsel was ineffective for failing to prevent

the prosecution from presenting what he describes as pervasive victim-impact evidence in

both stages of trial. Second, Pavatt contends that his trial counsel was also ineffective in

failing to investigate and present a compelling mitigation case. Lastly, Pavatt contends

that his counsel on direct appeal was ineffective for failing to assert these claims of

ineffective assistance of trial counsel.

        a) Clearly established federal law applicable to the claims

        The clearly established federal law applicable to these claims is the Supreme

Court’s decision in Strickland v. Washington, 

(1984). In Strickland, the

Supreme Court held that “[a] convicted defendant’s claim that counsel’s assistance was

so defective as to require reversal of a conviction or death sentence has two 

. “First,” the Court noted, “the defendant must show that counsel’s

performance was deficient.” 

showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” 

Court noted, “the defendant must show that the

deficient performance prejudiced the defense.” 

defendant makes both


                                             40
showings,” the Court held, “it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the result unreliable.”

words, “[t]o prevail on a Sixth Amendment claim of ineffective assistance of

counsel under Strickland . . . , a defendant must show both that (1) counsel committed

serious errors in light of prevailing professional norms such that his legal representation

fell below an objective standard of reasonableness, and (2) there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Grant v. Trammell, 

, 1017 (10th Cir. 2013)

(quotations omitted).

       The right to effective assistance of counsel extends to direct appeals, Evitts v.

Lucey, 

, 396–97 (1985), and the same standards apply in this context, see

Smith v. Robbins, 

, 285 (2000) (holding that “the proper standard for

evaluating [a] claim that appellate counsel was ineffective . . . is that enunciated in

Strickland”). This means that a defendant asserting a claim of ineffective assistance of

appellate counsel “must show a reasonable probability that, but for his counsel’s

unreasonable failure to” raise a particular nonfrivolous issue, “he would have prevailed

on his appeal.” 

counsel’s failure to challenge the admission of testimony regarding
       Rob Andrew’s religious beliefs and practice and his good, moral character,
       as well as photographs and a video-recording showing Rob Andrew while
       alive

       Pavatt complains that during the first-stage proceedings, the State, “[w]ithout

objection from [his] defense counsel, . . . elicited from Rob Andrew’s friends and family

                                              41
detailed and glowing accounts of him as a husband, father, and friend.” Aplt. Br. at 49.

As a result, Pavatt complains, “[t]he trial was saturated with descriptions of Rob

[Andrew] as a young, healthy, and successful professional who pursued active and

wholesome interests.” 

complains that “[t]he jury was repeatedly informed

regarding the extent of Rob[ Andrew]’s religious faith, including details of his Bible

study.” 

Pavatt asserts, “was designed to describe Rob [Andrew] in

especially devout terms and in marked contrast to Pavatt, who according to the

prosecution’s theory, abandoned his Christian values to follow Brenda [Andrew] into the

sins of adultery and murder.” 

complains that “[t]he verbal

descriptions of Rob [Andrew] were magnified by visual images,” including “four

photographs of Rob in life and a video-recording of him with his brother and friends and

Pavatt during a hunting excursion during the winter prior to his death.” 

turn argues that his “[t]rial counsel’s failures to object to inadmissible

evidence continued in the punishment phase of the trial.” 

notes,

“[t]he prejudicial and improper evidence” that was admitted during the first-stage

proceedings “was incorporated into the sentencing stage without objection.” 

evidence,” Pavatt argues, “compounded by the victim-impact testimony

from Rob[ Andrew]’s father and brothers, presented much more than the quick glimpse

of the life of Rob Andrew that is constitutionally allowed.” 

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

claims alleging ineffective assistance of trial and appellate counsel. Included was a claim


                                              42
that his appellate counsel failed to challenge the admission of a pre-mortem studio

photograph of Rob Andrew in a suit and tie (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 factors into the sentencing proceeding.” Original Appl. for Post-Conviction

Relief at 54 (citations omitted). The OCCA concluded that this claim was “not

accompanied by newly-discovered facts or new controlling case law” and was “therefore

barred by res judicata.” Pavatt II, No. PCD-2004-25 at 6. The OCCA also noted that it

had rejected a similar claim in Marquez-Burrola v. State, 

, 760 (Okla. Crim.

App. 2007). Pavatt II, No. PCD-2004-25 at 6 n.6.

       In his second application for post-conviction relief, Pavatt alleged that he was

denied the effective assistance of trial, direct appeal, and post-conviction counsel. In

support, Pavatt alleged, in pertinent part, that “[t]rial counsel objected to the admission of

the video recording of the hunting trip,”11 but “failed to object to the admission of the

other live photographs of Rob Andrew and of Rob and Brenda Andrew together.”

Second Application for Post-Conviction Relief at 37-38. Pavatt further alleged “that trial

counsel allowed multiple witnesses, who were friends and family of Rob Andrew, to




       11
         The hunting trip video was relevant to show that Rob Andrew owned a 16-
gauge shotgun and that Pavatt, who accompanied Rob Andrew on the trip, was familiar
with and had actually used that particular shotgun. As the OCCA outlined in its
description of the underlying facts, Rob Andrew was shot and killed with a 16-gauge
shotgun, and the 16-gauge shotgun that Rob Andrew owned was found missing from
Brenda Andrew’s house after the murder.
                                             43
testify to entirely irrelevant matters that could only raise sympathy in the minds of

jurors.” 

Pavatt in turn alleged that “[d]irect appeal counsel and post-conviction

counsel were ineffective in failing to raise this part of trial counsel’s deficiencies.” 

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

OCCA noted that, under Oklahoma’s Post-Conviction Procedure Act, its “consideration

of successive applications for relief [wa]s even more limited than the review afforded to

initial applications,” and 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.” Pavatt III, No. PCD-2009-

777 at 2-3. Turning to Pavatt’s claims of ineffective assistance of counsel, the OCCA

noted that Pavatt “concede[d] that none of these claims [we]re based on newly-

discovered evidence, or on any material change in the law.” 

As a result, the

OCCA concluded it was “barred by the provisions of [Oklahoma’s] Post-Conviction

Procedure Act from considering these arguments and materials.” 

Stat.

tit. 22, § 1089(D)(8)).

       The federal district court in this case considered on the merits only Pavatt’s claim

that his appellate counsel was ineffective for failing to challenge the admission of a pre-

mortem photograph of Rob Andrew (State’s Exhibit 219). With respect to that claim, the

district court concluded that Pavatt had failed to demonstrate that the OCCA’s decision

was contrary to or an unreasonable application of Strickland. ROA, Vol. 3 at 1125 (Dist.


                                              44
Ct. Docket No. 91 at 77). More specifically, the district court concluded it was “clear

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

–61, 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.” 

the remaining claims of ineffective assistance asserted by Pavatt, the

district court concluded that they were either procedurally barred from federal habeas

review, 

(Dist. Ct. Docket No. 91 at 98-99) (addressing Pavatt’s claim that

his trial counsel was ineffective for failing to object to the admission of live photographs

of Rob Andrew, other than State’s Exhibit 219), or were inadequately presented by Pavatt

in his habeas petition, 

(Dist. Ct. Docket No. 91 at 104-05).

       In this appeal, 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 III, No.

PCD-2009-777 at 4). As discussed above, however, 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. 

0–51 n.14. And, as we

have previously discussed, this procedural bar ruling is considered both independent and

adequate and thus serves to preclude federal habeas review. See 

–04.




                                             45
       That leads to Pavatt’s second argument: “[e]ven if this Court determines the

OCCA imposed a procedural bar, such a bar is not without exception,” and “[p]ost-

conviction counsel’s ineffectiveness in not fully challenging the failures of prior counsel

to object to the inadmissible sympathy evidence is the ‘cause’ that excuses any default.”

0-51. In other words, Pavatt argues that the ineffectiveness of his post-conviction

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

requirements. Pavatt contends that his position on this point is supported by Martinez v.

Ryan, 

(2012), and Trevino v. Thaler, 

(2013).

       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 

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

Martinez 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
       raised in an initial-review collateral 

(alterations and emphasis in original) (quoting 

–

18). And 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


                                              46
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.” 

(quotations omitted).

       Pavatt argues that the rule 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 initial application for state post-conviction relief was his first real

opportunity to assert ineffective assistance of trial counsel claims, and (c) his post-

conviction counsel was ineffective for failing to raise these claims of ineffective

assistance of trial counsel and appellate counsel.12

       Martinez and Trevino are distinguishable from Pavatt’s case, however, because in

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

the state system at issue actually or effectively prevented the petitioner from raising his or

her ineffective assistance claim for the first time until state post-conviction proceedings.

We are not persuaded that the same holds true with respect to Oklahoma’s system and

Pavatt does not argue otherwise.13 Indeed, Pavatt’s argument is based exclusively on his

own unique circumstances, i.e., the fact that he was represented at trial and on appeal by




       12
         Attorney Michael Arnett represented Pavatt both at trial and on direct appeal.
On direct appeal, Pavatt was also represented by another attorney, Gloyd McCoy.
       13
          Oklahoma law generally requires that a claim of ineffective assistance of trial
counsel be raised on direct appeal. See 

. But we do not treat this
procedural bar rule as “adequate” if the petitioner was represented by the same counsel at
trial and on direct appeal. 

same attorney. Thus, Pavatt has not established an exception to the procedural bar

rule that would otherwise apply to his ineffective assistance of trial counsel claims.

       Pavatt also, as previously noted, asserts in this appeal that his appellate counsel

was ineffective for failing to raise these ineffective assistance of trial counsel claims on

direct appeal. The OCCA rejected these ineffective assistance of appellate counsel

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

Because the OCCA treated these claims as procedurally barred, and because Martinez

and Trevino do not apply to ineffective assistance of appellate counsel claims, we

conclude that those claims are also barred from federal habeas review.

       c) Trial counsel’s failure to investigate and present a compelling mitigation case

       Pavatt also complains that his trial counsel failed to investigate and present

sufficient mitigating evidence during the second-stage proceedings. Pavatt argues that

trial “[c]ounsel’s meager presentation of mitigation, based on a last-minute and

superficial investigation, was an afterthought.” Aplt. Br. at 65. According to Pavatt, his

trial counsel, “believing [Pavatt] would be acquitted, put his time and resources into the

guilt/innocence stage of trial” and “operated under the unreasonable belief that residual

doubt of Pavatt’s guilt would be enough to persuade jurors to spare his life.” 

that his “[t]rial counsel had no reasonable strategy to shun the thorough

investigation that would have uncovered Pavatt’s significant psychological impairments

and explained how those impairments, and his unique background, caused him to be

easily influenced by Brenda Andrew.” 

                                              48
       Pavatt first raised this claim in his second application for state post-conviction

relief. The OCCA concluded that, because the claim was not “based on newly-

discovered evidence . . . or on any material change in the law,” it was “barred by the

provisions of [Oklahoma’s] Post-Conviction Procedure Act from considering” this claim.

Pavatt III, No. PCD-2009-777 at 7.

       For the same reasons discussed above, we conclude that the OCCA’s procedural

bar ruling precludes federal habeas review of this ineffective assistance of trial counsel

claim, and that Pavatt has failed to satisfy the requirements outlined in Martinez and

Trevino in order to establish an exception to this procedural bar rule.

       d) Ineffective assistance of appellate counsel

       Finally, Pavatt contends that his appellate counsel was ineffective for failing to

“raise the claims of trial counsel’s ineffectiveness” outlined above. Aplt. Br. at 99. This

claim, like his ineffective assistance of trial counsel claims, is procedurally barred due to

Pavatt’s failure to raise the claim in his original application for state post-conviction

relief. Further, this claim of ineffective assistance of appellate counsel does not fall

within the Martinez/Trevino exception.

                                              III

       We VACATE the prior panel opinion, AFFIRM the judgment of the district court,

and DENY Pavatt’s request for an additional COA.




                                              49
14-6117, Pavatt v. Carpenter
HARTZ, Circuit Judge, dissenting, joined by KELLY, J. and LUCERO, J.
Circuit Judges.

       I respectfully dissent.

       In Maynard v. Cartwright, 

, 363 (1988), the Supreme Court held that

Oklahoma’s statutory HAC aggravator was too vague to satisfy the Eighth Amendment

absent a limiting construction from the state courts, because under the statutory language

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.” In response, the Oklahoma Court of

Criminal Appeals (OCCA) construed the statutory aggravator to require that one of

several alternatives must be satisfied. One of those alternatives was that the victim

experienced conscious physical suffering. See Cheney v. State, 

, 80 (Okla.

Crim. App. 1995) (“Absent evidence of conscious physical suffering of the victim prior

to death, the required torture or serious physical abuse standard is not met.”)

       This court upheld the constitutionality of the aggravator in Hatch v. Oklahoma, 

, 1468–69 (10th Cir. 1995). Early on, the OCCA sent some signals that the

necessary conscious physical suffering must be more than merely the natural

consequence of being murdered. See Cudjo v. State, 

, 901–02 (Okla. Crim.

App. 1996) (“[T]he manner of [the victim’s] killing did not involve any acts of injury or

cruelty beyond the scope of the act of killing itself.”); 

(“The

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

the underlying killing.”); Booker v. State, 

, 548 (Okla. Crim. App. 1993)

(“The record does not support a finding of mental anguish beyond that which necessarily
accompanied the underlying killing.”). Since then, however, several members of this

court have expressed concern that the aggravator is being interpreted by the OCCA too

broadly to satisfy the Eighth Amendment. See Romano v. Gibson, 

, 1176

(10th Cir. 2001); Thomas v. Gibson, 

, 1228 n.17 (10th Cir. 2000); Medlock

v. Ward, 

, 1324 (10th Cir. 2000) (Lucero, J., concurring). I now agree that

the Oklahoma HAC aggravator, as presently construed by the OCCA, does not satisfy the

Eighth Amendment requirement that the aggravator distinguish in a principled way those

first-degree murderers who deserve the death penalty from the many who do not.

       At oral argument before the en banc court, counsel for the State acknowledged

what is apparent from the OCCA opinion in this case: a defendant “qualifies for the

[HAC] aggravator if the victim was conscious for some period of time (a couple minutes)

after receiving the fatal blow and experienced some pain during that time.” Oral

argument at 39:20–38. In other words, the very act of committing the murder makes one

eligible for the death penalty unless the victim was rendered unconscious immediately

upon receiving the fatal blow. In my view, no fairminded jurist could think that this

requirement distinguishes in a principled manner those deserving the death penalty from

the many first-degree murderers who do not. To the extent that it is not merely fortuitous

that the victim remains conscious, this test provides what could be described as a

“sharpshooter bonus.” If the perpetrator has the skill to render an immediately fatal blow,

he or she escapes the death penalty under this aggravator. Such an arbitrary aggravator is

not consistent with the Supreme Court’s “narrowing jurisprudence, which seeks to ensure



                                            2
that only the most deserving of execution are put to death.” Atkins v. Virginia, 

, 319 (2002).

       The majority opinion does not address this issue. It holds that Mr. Pavatt did not

exhaust in state court his Eighth Amendment challenge to the HAC aggravator and

therefore he is procedurally barred from raising it here. I respectfully disagree. It is not

clear to me that it was not exhausted. But in any event, the State waived the exhaustion

defense.

       The majority of the panel that heard this case understood Mr. Pavatt’s briefs in this

court as arguing that the OCCA, in affirming his sentence, had construed the HAC

aggravator in a way that violated the Eighth Amendment. As pointed out in the original

panel opinion, Pavatt v. Royal, 

, 935 (10th Cir. 2017), Mr. Pavatt’s original

appellate briefs raised this issue in three places. Page 21 of the opening brief said:

“[T]he evidence here—as related to the core element of conscious suffering—is

constitutionally insufficient.” The argument on pages 35–36 was more developed:

              The Eighth and Fourteenth Amendments require that an aggravator
       serve a narrowing function rather than become a standardless catch-all.
       Arave v. Creech, 

, 474 (1993) and Godfrey v. Georgia, 

, 428–29 (1980). Oklahoma has veered off the course forced on it
       by Cartwright, coming full circle and no longer limiting this clearly vague
       aggravating circumstance in a manner that minimizes “the risk of wholly
       arbitrary and capricious action.” 

–63.

And the reply brief at 5 challenged “whether there was sufficient evidence to support a

constitutional reading and application of the [HAC] aggravator.” Yet, as noted in the

original panel opinion:



                                              3
              Although the State has 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 

n.4.

       The failure of the State’s original appellate briefing to raise exhaustion should not

be surprising because in federal district court the State had explicitly conceded

exhaustion. Its brief in response to the § 2254 application said that Mr. Pavatt’s Ground

Ten had been “exhausted for purposes of federal habeas review.” Resp. to Pet. for Writ

of Habeas Corpus, Pavatt v. Workman, No. Civ-08-470-R (D. Okla. Jul. 31, 2009), ECF

No. 69 at 128. The majority opinion says that the State was conceding exhaustion of only

a Jackson challenge to the sufficiency of the evidence. See En Banc. Op. at 30; Jackson

v. Virginia, 

, 324 (1979). But the State brief’s 10-page discussion of

Ground Ten clearly indicates otherwise. It included substantial references to the Eighth

Amendment constraints on aggravators. For example, one paragraph begins: “To be

constitutional, an aggravating circumstance may not apply to every defendant convicted

of a murder; it must apply only to a subclass of defendants convicted of murder. It must

not also be unconstitutionally vague.” Resp. to Pet. for Writ of Habeas Corpus at 135.

The paragraph ends: “Nothing about the OCCA’s discussion of the legal or factual basis

for its conclusion here in any way suggests an overbroad or an erroneous interpretation,

let alone application, of Oklahoma’s [HAC] aggravator.” 

In discussing the

Eighth Amendment, the State’s brief included nary a hint that its acknowledgment of

exhaustion of Mr. Pavatt’s Ground Ten did not encompass this component of the issue.

                                             4
       Further, even after the panel dissent argued that Mr. Pavatt’s Eighth Amendment

claim had not been exhausted, the State was at best halfhearted in arguing in its original

petition for rehearing that it had not waived exhaustion. It wrote: “It is debatable

whether Respondent waived an exhaustion defense by asserting in district court that

Petitioner’s sufficiency claim is exhausted.” Pet. for Panel Reh’g or Reh’g En Banc at 5

n.1. This sentence is followed by a “compare” citation that notes one published opinion

in which we held that exhaustion was not waived and one unpublished case in which we

held that exhaustion was waived. There is no real argument on the issue. Moreover, the

perfunctory statement is only in a footnote, which under this court’s precedent is not

adequate to preserve an issue. See United States v. Hardman, 

, 1131 (10th

Cir. 2002) (en banc) (“Arguments raised in a perfunctory manner, such as in a footnote,

are waived.”)

        Perhaps the State thought that Mr. Pavatt had a good argument for exhaustion.1

But the State may also have had strategic reasons for waiving exhaustion. The HAC


1
  Mr. Pavatt clearly raised an Eighth Amendment claim in his second application to the
OCCA for postconviction relief. A fair construction of that argument is that the OCCA
decision in his case demonstrated that the OCCA had expanded the meaning of
“conscious physical suffering” so broadly that the requirements of Maynard were no
longer satisfied. This strikes me as an appropriate argument under the Eighth
Amendment. To determine how a state court construes an aggravating circumstance, we
can examine that court’s opinions. See 

. The opinions we
examine can include the opinion rendered in the very case before us. If we could not
consider that opinion in determining whether the state courts have improperly expanded
the meaning of the state aggravator, then state courts would have one “freebie” that is
immune from Eighth Amendment review.

      The OCCA rejected the claim in the second application on the ground that it was
waived because the “legal argument could have been raised in prior proceedings, but was
                                             5
not.” Op. Den. Second Appl. at 6. But the only authority cited in support was Okla. Stat.
tit. 22, § 1089(D)(8) (2019), which did not apply. That statutory provision permits
review of “claims and issues that have not been and could not have been presented
previously in a timely original application or in a previously considered application filed
under this section, because the legal basis for the claim was unavailable, or . . . because
the factual basis for the claim was unavailable as it was not ascertainable through the
exercise of reasonable diligence on or before that date.” And Mr. Pavatt could not have
argued in his original postconviction application that the OCCA opinion in his case
construed the HAC aggravator in an unconstitutional manner, because he filed the
original application before the OCCA decided his direct appeal.

        At the en banc oral argument, counsel for the State asserted that the issue was
barred from consideration in the second postconviction application because it could have
been raised in a petition for rehearing in the direct appeal. Counsel was apparently
relying on Okla. Stat. tit. 22, § 1089(C) (2019), which states that the only issues that can
be raised in an application for postconviction relief are those that “[w]ere not and could
not have been raised in a direct appeal.” But it is not at all clear that a petition for
rehearing would have been a proper way to raise a claim that the OCCA opinion on
appeal adopted an unconstitutional interpretation of the HAC aggravator. OCCA Rule
3.14 provides, in relevant part: “A petition for rehearing shall not be filed, as a matter of
course, but only for the following reasons: (1) Some question decisive of the case and
duly submitted by the attorney of record has been overlooked by the Court, or (2) The
decision is in conflict with an express statute or controlling decision to which the
attention of this Court was not called either in the brief or in oral argument.” Apparently,
the OCCA has interpreted the second alternative as limited to issues raised in the brief in
chief or at oral argument. See White v. State, 

, 995–96 (Okla. Crim. App.
1995) (petition for rehearing did not satisfy the rule because “the decision upon which
[defendant] relies is not controlling of the issues presented in his brief-in-chief.”). Thus,
in Ellis v. State, 

, 530 (Okla. Crim. App. 1997), the court said that the
defendant “clearly could not raise a new issue in a petition for rehearing.” In keeping
with this interpretation of the rehearing rule, on at least two occasions the OCCA on
postconviction review has heard constitutional challenges to the way that the OCCA had
addressed issues on direct appeal, even though the challenges had not been raised in
petitions for rehearing. See Cannon v. State, 

, 929 (Okla. Crim. App. 1997)
(The defendant argued that “his constitutional rights were violated when this Court held
that reversing his rape and sodomy convictions did not require reversal or modification of
his murder conviction or death sentence.”); Nguyen v. State, 

, 180–81 (Okla.
Crim. App. 1992) (The defendant argued that the OCCA violated his constitutional rights
when it upheld his death sentence even after determining that there was insufficient
evidence to support the HAC aggravator.) A member of this court has also expressed this
                                             6
aggravator is a commonplace in Oklahoma death-penalty cases. If new challenges to the

aggravator are going to be made, it may be advantageous to deal with them sooner rather

than later. A successful challenge years down the road could be extremely disruptive. If

the State believes that the defendant is even more unsympathetic than usual and that the



view of Oklahoma procedure. In his dissent in Bear v. Boone, 

, 783–84
(10th Cir. 1999), Judge Ebel contended that the defendant could properly raise in a
postconviction application a claim that the OCCA on direct appeal had unconstitutionally
assumed the rule of a jury in modifying his conviction to that of a lesser-included offense.
He wrote: “[T]he first opportunity [the defendant] had to raise his due process challenge
to the modification of his crime of conviction arose after the Court of Criminal Appeals
issued its opinion. Because I believe it would have been inappropriate for [the defendant]
to raise his due process claim under the limited rehearing procedures set out in Oklahoma
Court of Criminal Appeals Rule 3.14, I believe [the defendant] can now present his due
process claim by way of an application for postconviction relief in the Oklahoma courts.”

The panel majority in Bear did not address the issue.
       In short, the second application to the OCCA for postconviction relief was the first
occasion on which Mr. Pavatt could have raised his claim that the decision by the OCCA
on direct appeal established that the court had adopted an unconstitutional construction of
the HAC aggravator. The OCCA’s procedural bar of the claim on the ground that it
“could have been raised in prior proceedings, but was not,” Op. Den. Second Appl. at 6,
appears to be unsupported by the relevant rule and statute as interpreted in state-court
precedent. For a state procedural bar to bind a federal court, it must rest on “independent
and adequate” state-law grounds. Walker v. Martin, 

, 316 (2011). “To
qualify as an adequate procedural ground, a state rule must be firmly established and
regularly followed.” 

marks omitted); see Johnson v. Mississippi,

, 587–89 (1988). One may therefore question the adequacy of the OCCA’s
procedural bar of Mr. Pavatt’s Eighth Amendment issue in the second application.
Unfortunately, this issue has not been developed in this court because exhaustion was
raised at such a late stage.




                                             7
present composition of the courts is favorable, it may welcome an early challenge even if

there is a respectable exhaustion argument. There is nothing wrong with that approach.

It would be wrong, however, to waive exhaustion and then, after losing on the merits,

argue that it is so plain that the prisoner failed to exhaust remedies that the State cannot

possibly have meant what it said when it conceded exhaustion.

       I continue to believe that the State waived its exhaustion argument, and I think

there is a reasonable argument that Mr. Pavatt exhausted his Eighth Amendment claim in

state court and was procedurally barred on an inadequate state ground. I would therefore

address the merits of the Eighth Amendment issue and hold that no reasonable jurist

could say that the OCCA’s interpretation of the HAC aggravator satisfies Eighth

Amendment standards set by the Supreme Court.




                                              8