PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ JAMES DWIGHT PAVATT, Petitioner - Appellant,

v. MIKE CARPENTER, Interim Warden, Oklahoma State Penitentiary,  Respondent - Appellee. No. 14-6117 (D.C. No. 5:08- CV-00470-R) (W.D. Okla.)

________________ _________________ ORDER

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

________________ _________________ This matter is before the court on the appellee’s Petition for Panel Rehearing or Rehearing En Banc and the Supplemental Petition fo r Rehearing En Banc filed on July 25, 2018. We also have responses to both petitions from the app ellant.

 Pursuant to Fed. R. App. P. 43( c)(2), Terry Royal, is replaced by Mike Carpenter as Interim Warden of the Ok lahoma State Penitentiary.

 * The Honorable Joel M. Carson to ok office on May 18, 2018 and d id not participate in the original po ll. He will, however, participate in the remaining en banc proceedings. The Honorable Paul J. Kelly elected senior status on January 1, 2018 and did not participate in the en ba nc poll. As a member of the ori ginal hearing panel, however, Judge Kelly has elected to sit on the en banc panel. See 10th Cir. R. 35.5. FILED United States Court of Appeals Tenth Circuit 

### October 2, 2018

Elisabeth A. Shumaker Clerk of Court2 Upon consideration, and as the pa rties were advised previously, a poll was called and the poll carried. Consequen tly, the request for en banc reh earing is GRANTED. See Fed. R. App. P. 35(a); see also 10th Cir. R. 35.6 (noting the e ffect 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 en tire case, but we request the pa rties to specifically address the following questions i n supplemental memorandum brie fs: 1) Is Pavatt entitled to federal habeas relief on the basis of his sufficiency-of-theevidence challenge und er Jackson v. Virgini a, 443 U.S. 307 (197 9), to the heinous, atrocious, or cruel (HAC) aggravat or that was found by the jury in his case? a) Was the sufficiency-o f-the-evidence claim presented to and addr essed by the OCCA? b) Was the OCCA’s resolution of the sufficiency-of-the-evidence cl aim contrary to, or an unreasonable applicati on of, clearly established Fede ral law, as determined by the Supreme Court of the United States? 2) Is Pavatt entitled to federal ha beas relief on the grounds t hat (a) the HAC aggravator is unconstitutionally v ague or broad, in violation o f the Eighth and Fourteenth Amendments, or (b) that the OCCA d id not in his case apply the narrowing construction of the HAC aggravator that was pr eviously approved by this cour t? a) Were either of these claims pres ented to and addressed by the O CCA? In other words, did Pavatt exha ust these claims in the Oklahoma state co urts? b) If not, are the claims now unexhau sted or procedurally barred? c) If the claims are unexhausted, has respondent, through counsel, expressly waived the exhaustion requireme nt for purposes of 28 U.S.C. § 2 254(b)(3)? d) Should this court sua sponte raise the exhaustion issue? e) If the claims are procedurally b arred, has respondent expressly waived that as a defense? f) Were these claims presented to a nd resolved by the district cou rt and, if so, was a COA granted on these claims? g) Were these claims included in thi s court’s case management orde r as issues to be raised by Pavatt? h) If the claims can be reviewed on the merits by this court, has the OCCA construed the HAC aggravator i n a manner consistent with the Ei ghth Amendment, and/or did the OCCA fail to apply in Pavatt’s case t he narrowing3 construction of the HAC aggravato r that was previously approved by this court? i) Was the OCCA, in light of Bell v. Cone, 543 U.S. 447 (2005), re quired to analyze, discuss, or even menti on, controlling Supreme Court pr ecedent regarding the constitutional requ irements limiting death-penalt y aggravators or the OCCA’s own established cons truction of the HAC aggravator i n rejecting Pavatt’s challenge to the jury’s finding of the HAC aggravator in his case? j) Did the OCCA, in rejecting Pava tt’s challenge to the jury’s fin ding of the HAC aggravator in his case, effectiv ely expand the meaning of “cons cious physical suffering” to encompass the brie f period of conscious suffering necessarily present in virtua lly all murders? k) Even if the HAC aggravator was imp roperly applied in this case, was there nevertheless no “constitutional error” in Pavatt’s sentence, Brown v. Sanders, 546 U.S. 212, 221 (2006), because the jury properly found anoth er aggravator and no evidence was admitted at t he penalty phase that was rele vant solely to the HAC aggravator? 3) If we reject Pavatt’s challenge s to the HAC aggravator, is h e entitled to federal habeas relief on his ineffective- assistance claims relating to the penalty phase of his trial? And, in this regard, do Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013), apply in the sp ecial circumstances of this cas e? The appellee’s supplemental brie f shall be filed on or before N ovember 16, 2018 and shall be limited to 40 pages in length in a 13 or 14 point font. In addition, within 2 business days of the electronic filing 16 hard copies must be r eceived in the Office of the Clerk. On or before January 2, 2 019, the appellant shall file a memorandum response brief subject to the same limita tions. Like the appellee’s brie f, 16 hard copies must be

received in the clerk’s offi ce within 2 business days. Within 21 days of service of the memorandum response brief the appellee may file a reply. The reply shall be limite d to 15 pages in length. Like the primary supplemental briefs, 16 hard copies of the reply shall be received in the Cl erk’s Office within 2 business days of the electronic filing.4 The appeal will be set for an en banc hearing on the next avai lable oral argument calendar once briefing is complet e. The parties will be advised of the exact date and time for the argument and will receiv e additional information regard ing the hearing via separate communication.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk