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Pavatt v. Carpenter

United States Court of Appeals, Tenth Circuit

October 2, 2018

JAMES DWIGHT PAVATT, Petitioner - Appellant,
v.
MIKE CARPENTER, Interim Warden, Oklahoma State Penitentiary,[*] Respondent - Appellee.

          (D.C. No. 5:08-CV-00470-R) (W.D. Okla.)

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

          ORDER

         This matter is before the court on the appellee's Petition for Panel Rehearing or Rehearing En Banc and the Supplemental Petition for Rehearing En Banc filed on July 25, 2018. We also have responses to both petitions from the appellant.

          Upon consideration, and as the parties were advised previously, a poll was called and the poll carried. Consequently, the request for en banc rehearing is GRANTED. See Fed. R. App. P. 35(a); see also 10th Cir. R. 35.6 (noting the effect of the grant of en banc rehearing is to vacate the judgment and to restore the case on the docket).

         This court has en banced the entire case, but we request the parties to specifically address the following questions in supplemental memorandum briefs:

1)Is Pavatt entitled to federal habeas relief on the basis of his sufficiency-of-the-evidence challenge under Jackson v. Virginia, 443 U.S. 307 (1979), to the heinous, atrocious, or cruel (HAC) aggravator that was found by the jury in his case?
a) Was the sufficiency-of-the-evidence claim presented to and addressed by the OCCA?
b) Was the OCCA's resolution of the sufficiency-of-the-evidence claim contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States?
2)Is Pavatt entitled to federal habeas relief on the grounds that (a) the HAC aggravator is unconstitutionally vague or broad, in violation of the Eighth and Fourteenth Amendments, or (b) that the OCCA did not in his case apply the narrowing construction of the HAC aggravator that was previously approved by this court?
a) Were either of these claims presented to and addressed by the OCCA? In other words, did Pavatt exhaust these claims in the Oklahoma state courts?
b) If not, are the claims now unexhausted or procedurally barred?
c) If the claims are unexhausted, has respondent, through counsel, expressly waived the exhaustion requirement for purposes of 28 U.S.C. § 2254(b)(3)?
d) Should this court sua sponte raise the exhaustion issue?
e) If the claims are procedurally barred, has respondent expressly waived ...

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