Pavatt v Royal

Pavatt appealed the denial of his habeas petition challenging his murder conviction and death sentence. The panel affirmed on the conviction and, 2-1, reversed and remand on the sentence. The majority held that two of Pavatt’s arguments as to conviction were inadequately briefed or forfeited and in light of overwhelming evidence of guilt any erro in allowing photos of the victim into evidence was harmless beyond a reasonable doubt. The majority held that the Oklahoma Court of criminal Appeals failed to apply controlling Supreme Court precedent to narrowly construe the heinous, atrocious or cruel aggravator and failed to provide any satisfactory definition for conscious physical suffering that would distinguish cases where the death penalty would be constitutional from the whole set of case where the victim did not die immediately. Briscoe concurred as to conviction arguing the ineffective assistance claims were procedurally barred and no exception applied. She dissented as to the sentence arguing that Pavatt’s challenge to the jury instructions on the aggravator were procedurally barred and in any event identical challenges have been rejected in two published opinions and his evidentiary challenge fails as the Court of Criminal Appeals analysis is consistent with the Supreme Court’s early precedent as there is no directly controlling Supreme Court decision declaring the analysis unconstitutional and the court of criminal Appeals applied the correct rule to evaluate the sufficiency claim and found the medical evidence that the victim would have been alive an conscious for several minutes and suffered pain as well as 911 calls by victim’s wife that he was alive and trying to talk plus evidence victim tried to protect himself with a  bar of bottles was sufficient to find the aggravator satisfied here and the majority ignored the body of case law which identifies when the aggravator is satisfied and when it is not. She also argued the majority should have ordered a new sentencing hearing instead of merely remanding for further proceedings.

United States v Ortiz-Lazaro

Ortiz-Lazaro appealed his sentences for illegal reentry and violating his supervised release. The panel affirmed. It held the district court actually explained why it departed upward on the supervised release violation sentence, the panel was persuaded that failure to put the reasons in writing did not result in a different sentence, considered the guidelines and thus the need to consider sentencing disparities and applied the consecutive sentence policy statement as written and the sentence was substantively reasonable given Ortiz-Lazaro’s criminal background and other factors and there was no due process violation involving a violation report as the report never existed and thus could not be given to Ortiz-Lazaro.