James Dwight Pavatt v. Tommy Sharp, Interim Warden

A divided panel of the Tenth Circuit, sitting en banc, vacated a panel opinion that reversed a capital sentence on the ground that the sentence rested on an unconstitutionally overbroad and arbitrary application of Oklahoma’s aggravating factor for “especially heinous, atrocious, or cruel” homicides. The en banc court refused to reach the merits of Petitioner’s Eighth Amendment challenge to his capital sentence, ruling that the claim was procedurally barred—even though the State had explicitly waived any procedural objection and Petitioner had timely presented his claim to the state court. The questions presented are:

1. Whether this Court should summarily reverse the Tenth Circuit’s clearly erroneous procedural ruling.

2. If the Court grants plenary review, whether a State’s application of an aggravating factor to justify the death penalty violates the Eighth and Fourteenth Amendments—and conflicts with both this Court’s precedents prohibiting the arbitrary imposition of capital sentences and the decisions of other appellate courts—when it makes punishable by death any homicide where the victim does not die immediately.