No. 5:08-CV-00470-R) (W.D. Okla.)
TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID and
CARSON, Circuit Judges.[**]
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.
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).
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
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 ...