Castillo v. McFadden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMANDO CASTILLO,  No. 03-15715
Petitioner-Appellant, D.C. No.
v. CV-02-00466-PGR
JAMES MCFADDEN; ARIZONA ORDER
ATTORNEY GENERAL, AMENDING
Respondents-Appellees. OPINION AND
DISSENT AND
 DENYING
PETITION FOR
PANEL
REHEARING AND
PETITION FOR
REHEARING EN
BANC AND
AMENDED
 OPINION

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted
February 12, 2004—San Francisco, California

Opinion Filed June 1, 2004
Amended February 24, 2005

Before: Pamela Ann Rymer, Michael Daly Hawkins, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;
Dissent by Judge Hawkins

2151
 CASTILLO v. MCFADDEN 2155
COUNSEL

Anders V. Rosenquist, Jr., and Florence M. Bruemmer,
Rosenquist & Associates, Phoenix, Arizona, for the
petitioner-appellant.

John L. Saccoman, Assistant Attorney General, Phoenix, Ari-
zona, for the respondents-appellees.

ORDER

The opinion and dissent filed on June 1, 2004 and pub-
lished at 370 F.3d 882 (9th Cir. 2004), are hereby amended.
The amended opinion and amended dissent are filed concur-
rently herewith. The Opinion and Dissent are amended as fol-
lows:

1. At slip op. 6914, first full paragraph, line 11; 370 F.3d
at 886, second full paragraph, line 17, delete “In short, the
petitioner must have either referenced specific provisions of
the federal constitution . . . or cited to federal case law.”

2. At slip op. 6914, first full paragraph, line 15; 370 F.3d
at 886, second full paragraph, line 22, insert the following:
“Consistent with the recognition that state and federal courts
are jointly responsible for interpreting and safeguarding con-
stitutional guarantees, we have held that citation to either a
federal or state case involving the legal standard for a federal
constitutional violation is sufficient to establish exhaustion.
See id.; Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.
2003) (en banc) (“[F]or purposes of exhaustion, a citation to
a state case analyzing a federal constitutional issue serves the
same purpose as a citation to a federal case analyzing such an
issue.”). In short, the petitioner must have either referenced
specific provisions of the federal constitution or cited to fed-
eral or state cases involving the legal standard for a federal
constitutional violation.”
2156 CASTILLO v. MCFADDEN
3. At slip op. 6914, second full paragraph, line 20; 370
F.3d at 887, line 13, insert the following after the phrase “or
cite any federal”: “or state.”

4. At slip op. 6917, first full paragraph, line 5; 370 F.3d
at 888, second full paragraph, line 7, insert the following after
the word “relevant”: “state or federal.”

5. At slip op. 6917, first full paragraph, line 17; 370 F.3d
at 888, second full paragraph, line 28, insert the following
before “Citation”: “Similarly, none of the state cases relied on
by Castillo to support his third point of error involved the
express invocation, explanation or discussion of due process
standards. E.g., State v. Hughes, 189 Ariz. 62, 938 P.2d 457
(1997) (en banc) (criminal appeal construing the Arizona
Rules of Evidence); State v. Miller, 186 Ariz. 314, 921 P.2d
1151 (1996) (criminal appeal discussing waiver and funda-
mental error under the Arizona Rules of Evidence); State v.
McVay, 127 Ariz. 450, 622 P.2d 9 (1980) (criminal appeal
construing the Arizona Rules of Evidence); State v. Williams,
111 Ariz. 511, 533 P.2d 1146 (1979) (criminal appeal review-
ing admissibility of evidence); Maxwell v. Aetna Life Ins. Co.,
143 Ariz. 205, 693 P.2d 348 (App. 1984) (civil appeal apply-
ing doctrine of fundamental error); Hinson v. Phoenix Pie
Co., 3 Ariz. App. 523, 416 P.2d 202 (App. 1966) (civil appeal
construing the Arizona Rules of Civil Procedure).”

6. At slip op. 6917, first full paragraph, line 18; 370 F.3d
at 888, second full paragraph, line 29, insert the following
after “irrelevant federal”: “or state.”

7. At slip op. 6925, second full paragraph and the car-
ryover paragraph on page 6926, 370 F.3d at 893, first full
paragraph, replace paragraph with the following: “To raise the
federal legal theory for purposes of exhaustion, Lyons v.
Crawford, 232 F.3d 666, 669-70 (9th Cir. 2000), as modified
by 247 F.3d 904 (9th Cir. 2001), a petitioner must simply
characterize a claim as federal in nature, by either referencing
 CASTILLO v. MCFADDEN 2157
specific provisions of the Constitution or citing to federal or
state case law analyzing the federal constitutional issue. See
Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en
banc). Castillo did both, citing specific provisions of the Con-
stitution and federal cases. He went further, referencing his
Fourteenth Amendment right to due process in his conclusion.5
Considering that he had also mentioned that he was denied a
fair trial in violation of the Constitution in the context of his
argument about the videotape,6 he met his burden.”

8. At slip op. 6926, second full paragraph; 370 F.3d at
893, third full paragraph, replace paragraph with the follow-
ing: “The majority relies on Johnson and Hiivala. 88 F.3d at
830-31; 195 F.3d at 1106. But, in Johnson, the petitioner
made no specific reference to the Constitution or federal case
law. 88 F.3d at 830-31. Similarly, in Hiivala, we held that the
petitioner failed to exhaust his claims when he argued to the
state court that the evidence was insufficient to support a state
law conviction, but made no reference to the Due Process
Clause, the Fourteenth Amendment, nor any federal or state
cases involving the legal standard for a federal constitutional
violation. 195 F.3d at 1106-07. Thus, Hiivala and Johnson are
clearly distinguishable from this case, where Castillo did all
three.”
5
The majority notes that “citation of a relevant federal constitutional
provision in relation to some other claim does not satisfy the exhaustion
requirement.” But Castillo did not reference violation of his Fourteenth
Amendment due process rights in relation to another specific claim, for
instance, as a part of either of his other argument sections. Had he done
so, of course the state court should not be charged with assuming that the
reference applies to the other arguments. Rather, Castillo’s brief only
required the court to make a slight inferential step to put together his two
references — denial of a fair trial in violation of the U.S. Constitution in
the context of his videotape argument and violation of the Fourteenth
Amendment in the conclusion.
6
I concede that under Hiivala, reference to denial of a fair trial, on its
own, would not have been sufficient for exhaustion. 195 F.3d at 1106.
2158 CASTILLO v. MCFADDEN
9. At slip op. 6926, footnote 8, lines 1-3; 370 F.3d at 893,
footnote 8, lines 2-4: delete “Our case law requires citation to
federal case law and reference to specific provisions of the
federal Constitution” and replace with “Our case law requires
citation to federal or state case law analyzing the federal con-
stitutional issue or reference to specific provisions of the fed-
eral Constitution.”

10. At slip op. 6930, first full paragraph, line 1; 370 F.3d
at 895, third full paragraph, line 1: delete “To me, this” and
replace with “This.”

With these amendments, Judges Rymer and Bybee have
voted to deny the petition for panel rehearing and/or rehearing
en banc, and Judge Hawkins has voted to grant the petition for
panel rehearing and/or rehearing en banc.

The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc, and the matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.

With the filing of the amended opinion and amended dis-
sent, no further petitions for panel rehearing or rehearing en
banc may be filed. See 9th Cir. G.O. 5.3(a).

OPINION

BYBEE, Circuit Judge:

Petitioner Armando Castillo, an Arizona prisoner, appeals
the District Court’s dismissal of his amended petition for
habeas corpus. 28 U.S.C. § 2254. Castillo’s amended petition
alleges the Arizona trial court denied Castillo “a fair trial in
violation of the Fifth and Fourteenth Amendments” of the
 CASTILLO v. MCFADDEN 2159
U.S. Constitution by permitting the jury to view what he con-
tends was a highly prejudicial videotape of his interrogation.
We conclude that Castillo failed to exhaust his state court
remedies and affirm the District Court’s dismissal of his peti-
tion.

FACTUAL BACKGROUND AND PROCEDURAL
HISTORY

Arizona charged Castillo with second-degree murder and
child abuse. The charges arose from a June 13, 1998, incident
in which Castillo tended his girlfriend’s two-year-old son.
The child was sick with flu-like symptoms at the time and
slept most of the day. While his girlfriend was gone, Castillo
allegedly shook the two-year-old child, causing his death.
Castillo adamantly insisted that he never harmed the child or
shook him in any way. His theory, presented at trial, was that
after his girlfriend returned and he left the apartment, she
found her child sleeping and covered in vomit and mucus,
panicked, and shook him in an attempt to wake him up,
thereby causing his injuries.

In May 1999, Castillo was tried by jury in the State Court
of Arizona for Maricopa County. The trial judge allowed the
jury to view a videotape of the police interrogating Castillo
that he argues was highly prejudicial. The videotape showed
Castillo invoking his right to counsel and the interrogating
detective making, according to Castillo, “numerous false and
highly prejudicial misstatements of the evidence.” On the vid-
eotape, which we have viewed, the detective asserted that the
autopsy “scientifically proved” that only Castillo could have
killed the two-year old, and repeatedly accused Castillo of
lying and causing the child’s death. Castillo repeatedly denied
the detective’s accusations.

Outside the jury’s presence and before the videotape was
shown, defense counsel argued that the court should exclude
the videotape because the detective’s statements were inaccu-
2160 CASTILLO v. MCFADDEN
rate hearsay. The prosecution argued that it did not offer the
detective’s statements for their truth, but to show “interview
technique.” The trial judge said that he would hold a hearing
to view the videotape and directed the attorneys not to men-
tion it until after the hearing. He never held the promised
hearing.

At trial, the prosecutor and defense counsel again argued
whether the court should permit the videotape into evidence.
Castillo objected on the grounds that the detective’s state-
ments were irrelevant. The court overruled Castillo’s objec-
tion and allowed the videotape to be shown.

Prior to showing the videotape, the court orally instructed
the jury: “You will be hearing some statements made by
Detective Lewis on these tapes and the statements made are
made to show their effect on the defendant, they are not made
to show that they are necessarily true.” After the prosecution
showed the videotape and outside of the jury’s presence, how-
ever, the trial judge frankly confessed his misgivings about
the decision to admit the videotape and expressed concern
about its potentially prejudicial effect. “In my 19 years on the
trial bench, I have never ever admitted a tape like that in evi-
dence. I’m really concerned about it.” The court then opined
that its decision would “never hold up if there is any appeal,
never in a million years.” To cure any potential prejudice, the
court gave the jury a written instruction that

[t]he audiotape interview viewed by you during this
trial includes statements made to Mr. Castillo by a
police officer. The audiotape was provided for you
to hear Mr. Castillo’s statements and his reaction to
the police officer’s statements. The information in
the questions themselves are not evidence and
should not be considered by you as evidence. The
police officer’s statements to Mr. Castillo are only to
be considered by you to determine their effect upon
the response made by Mr. Castillo.
 CASTILLO v. MCFADDEN 2161
The court also read a substantially identical version of this
instruction to the jury before closing arguments.

Castillo was convicted on both counts of the indictment. He
moved for a new trial, but the court denied the motion.
Although the trial judge concluded that he should not have
admitted portions of the videotape because they were irrele-
vant and prejudicial, he nonetheless concluded that the error
as to these portions of the tape was harmless, and all the other
material on the tape was properly admitted. The court sen-
tenced Castillo to twenty-years imprisonment for the second-
degree murder conviction and seven-years imprisonment for
the child abuse conviction, to run concurrently.

Following sentencing, Castillo appealed to the Arizona
Court of Appeals. The Court of Appeals affirmed Castillo’s
conviction and sentence by a memorandum decision explain-
ing its rationale. Castillo then petitioned for discretionary
review in the Arizona Supreme Court. The Arizona Supreme
Court denied review without comment. Castillo did not pur-
sue Arizona post-conviction relief.

On March 15, 2002, Castillo filed a petition and an
amended petition for habeas corpus in the U.S. District Court
for the District of Arizona.1 Beyond challenging the trial
court’s impanelment of the jury as a violation of the Sixth and
Fourteenth Amendments and claiming a violation of the Four-
teenth Amendment under Batson v. Kentucky, 476 U.S. 79
(1986), Castillo’s amended habeas petition alleges that the
Arizona trial court denied Castillo “a fair trial in violation of
the Fifth and Fourteenth Amendments” of the U.S. Constitu-
tion, by admitting the videotape of his interrogation and
1
The Antiterrorism and Effective Death Penalty Act applies to Castillo’s
§ 2254 amended petition because he filed his original petition after the
Act’s date of enactment, April 24, 1996. Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, § 107(c), 110 Stat. 1214,
1226 (1996).
2162 CASTILLO v. MCFADDEN
arrest. Arizona answered the petition by arguing, inter alia,
that Castillo had failed to exhaust his federal due process
claim in the Arizona state courts and that his claim was now
procedurally defaulted.

A magistrate judge issued a report and recommendation
that agreed Castillo had not exhausted his claim. He con-
cluded Castillo had not demonstrated cause and prejudice to
excuse his default and recommended that the District Court
dismiss the petition with prejudice. Alternately, he recom-
mended that the District Court deny the claim on the merits
because any error was harmless. Castillo objected, but the
District Court adopted the report and recommendation and
denied the petition. Nonetheless, the District Court granted
Castillo a certificate of appealability with respect to “the
introduction of the videotape.” Castillo timely appealed.

STANDARD OF REVIEW

We review de novo Castillo’s failure to exhaust his Arizona
remedies. Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir.
2003).

DISCUSSION

[1] Arizona renews its argument that Castillo’s failure to
exhaust state remedies bars federal habeas review.2 “An appli-
cation for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State.” 28 U.S.C.
2
On appeal, Castillo fails to challenge the magistrate judge’s conclu-
sion, adopted by the District Court, that he had procedurally defaulted his
unexhausted, federal, constitutional claim concerning the admission of the
videotape. Thus, Castillo has waived any argument on appeal that he may
return to Arizona state court to exhaust his unexhausted claim. Accord-
ingly, we uniquely address Castillo’s antecedent failure to exhaust and not
the issue of any resulting procedural default.
 CASTILLO v. MCFADDEN 2163
§ 2254(b)(1)(A); see also id. § 2254(c) (“An applicant shall
not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he
has the right under the law of the State to raise, by any avail-
able procedure, the question presented.”).

[2] To exhaust his Arizona remedies, Castillo had to give
the Arizona courts a “fair opportunity” to act on his federal
due process claim before presenting it to the federal courts.
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Peter-
son v. Lampert, 319 F.3d 1153, 1155-56, 1159 (9th Cir. 2003)
(en banc). We consider Castillo’s briefing to the Arizona
Court of Appeals to determine whether he fairly presented his
federal due process claim to the Arizona courts.3

[3] Castillo’s brief to the Arizona Court of Appeals needed
to apprise Arizona that he was making a claim under the U.S.
Constitution, see Duncan v. Henry, 513 U.S. 364, 365-66
(1995), and describe “both the operative facts and the federal
legal theory on which his claim is based so that the state
courts [could] have a ‘fair opportunity’ to apply controlling
legal principles to the facts bearing upon his constitutional
claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)
(citations and internal quotation marks omitted). Castillo must
have “characterized the claims he raised in state proceedings
specifically as federal claims.” Lyons v. Crawford, 232 F.3d
666, 670 (2000) (emphasis in original), as modified by 247
F.3d 904 (9th Cir. 2001). Consistent with the recognition that
state and federal courts are jointly responsible for interpreting
3
In cases not carrying a life sentence or the death penalty, “claims of
Arizona state prisoners are exhausted for purposes of federal habeas once
the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196
F.3d 1008, 1010 (9th Cir. 1999). We assume without deciding that we
look to Castillo’s Arizona Court of Appeals brief to determine whether
Castillo afforded Arizona a fair opportunity to address his federal due pro-
cess claim. Whether we also should consider his petition submitted to the
Arizona Supreme Court is an open question we need not address, as the
brief and the petition repeat the relevant language almost verbatim.
2164 CASTILLO v. MCFADDEN
and safeguarding constitutional guarantees, we have held that
citation to either a federal or state case involving the legal
standard for a federal constitutional violation is sufficient to
establish exhaustion. See id.; Peterson v. Lampert, 319 F.3d
1153, 1158 (9th Cir. 2003) (en banc) (“[F]or purposes of
exhaustion, a citation to a state case analyzing a federal con-
stitutional issue serves the same purpose as a citation to a fed-
eral case analyzing such an issue.”). In short, the petitioner
must have either referenced specific provisions of the federal
constitution or cited to federal or state cases involving the
legal standard for a federal constitutional violation.

[4] Mere “general appeals to broad constitutional princi-
ples, such as due process, equal protection, and the right to a
fair trial,” do not establish exhaustion. Hiivala v. Wood, 195
F.3d 1098, 1106 (9th Cir. 1999) (citation omitted). Nor is it
enough to raise a state claim that is analogous or closely simi-
lar to a federal claim. For example, in Johnson v. Zenon, 88
F.3d 828 (9th Cir. 1996), the petitioner argued in Oregon state
court that the admission of prior act evidence “ ‘infringed on
his right to present a defense and receive a fair trial,’ ” and
therefore this evidentiary error was not harmless under Ore-
gon law. Id. at 830-31. We held that the petitioner had not
exhausted his Oregon remedies with respect to his federal
claims: he had argued exclusively Oregon evidentiary law and
never apprised the Oregon court that he was asserting a fed-
eral claim. Id. Similarly, in Hiivala, the petitioner failed to
exhaust his Washington remedies when he argued to the
Washington state court that the evidence was insufficient to
support his conviction. 195 F.3d at 1106-07. Hiivala did not
relate his claim to the Due Process Clause of the U.S. Consti-
tution, cite the Fourteenth Amendment, or cite any federal or
state cases involving the legal standard for a federal constitu-
tional violation. Id.

[5] Moreover, citation of a relevant federal constitutional
provision in relation to some other claim does not satisfy the
exhaustion requirement. Recently, the Supreme Court, revers-
 CASTILLO v. MCFADDEN 2165
ing our court, concluded that a petitioner had failed to exhaust
his available state remedies when he referenced the Sixth
Amendment in relation to his claim that trial counsel was
ineffective, but failed to reference it again in respect to his
separate claim for ineffective assistance of appellate counsel.
See Baldwin v. Reese, 124 S. Ct. 1347, 1351 (2004).

Here, Castillo claims that his various trial court motions
and his opening brief in the Arizona Court of Appeals pre-
sented his federal due process claim to the Arizona Court of
Appeals. We disagree.

[6] Castillo principally argues that his motion for a new
trial, trial supplemental briefing, and trial motion to recon-
sider fairly presented his federal, constitutional due process
claim to the Arizona Court of Appeals. The Supreme Court
foreclosed that argument in Baldwin. The Arizona appeals
court was not required to comb the trial court’s decision to
discover Castillo’s federal constitutional issue. Baldwin, 124
S. Ct. at 1350 (declining to require state appellate judges to
read lower state court opinions). A fortiori, the Arizona Court
of Appeals was not required to review the parties’ trial court
pleadings to see if it could discover for itself a federal, consti-
tutional issue. To exhaust his claim, Castillo must have pres-
ented his federal, constitutional issue before the Arizona
Court of Appeals within the four corners of his appellate
briefing. Id. at 1351. Therefore, we reject Castillo’s assertion
that his trial court pleadings fairly presented his federal due
process claim to the Court of Appeals.

[7] Alternately, Castillo argues that his appellate briefing
exhausted his Fourteenth Amendment due process claim con-
cerning the admission of the videotape. At best, counsel’s
briefing merely hinted at the existence of any federal due pro-
cess claim. In his brief’s statement of the issues, Castillo artic-
ulated three separate questions. The headings to his arguments
closely mirrored these questions, affirmatively answering
2166 CASTILLO v. MCFADDEN
each question with only minor variation. Castillo presented
the following questions to the Arizona Court of Appeals:

I. Whether the trial court committed reversible
[sic] in dismissing three jurors for cause who
expressed concern about the court’s requirement that
they commit to following the court’s instructions on
the law without having first heard the instructions?

II. Whether the trial court erred in finding racially
neutral cause for the prosecutor’s exercise of
peremptory challenge to remove the only African-
American from the jury?

III. Whether the trial court committed fundamental
error by allowing the jury to view highly prejudicial
videotapes of Appellant’s interrogation and arrest
and in failing to grant the subsequent motions for a
new trial or the motion for reconsideration?

(emphasis added). The only argument at issue in this appeal
is question three. Castillo’s statement of that issue and its cor-
responding argument heading were entirely silent as to any
federal due process claim. Castillo neither mentioned in rela-
tion to that claim the source of his claimed right, viz., the
Fourteenth Amendment Due Process Clause, nor asserted any
federal due process violation.

Similarly, the argument section of Castillo’s briefing was
all but devoid of any language presenting his federal due pro-
cess argument to the Arizona Court of Appeals. On issue one,
Castillo had argued that the trial court violated his Sixth
Amendment right to a fair trial by an impartial jury, presum-
ably incorporated against Arizona by the Fourteenth Amend-
ment. On issue two, he claimed a Batson violation under the
Fourteenth Amendment. In contrast, on issue three, Castillo
focused his argument on whether the trial court should have
excluded the videotape because it was prejudicial under Ari-
 CASTILLO v. MCFADDEN 2167
zona Rule of Evidence 403 (“Although relevant, evidence
may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . .”). Nowhere in the argu-
ment concerning the videotape, until the penultimate sen-
tence, did Castillo even refer to the U.S. Constitution. Finally,
at the end of his argument, Castillo claimed that “[b]ecause
this improper evidence was admitted, Appellant was denied a
fair trial in violation of the United States and the Arizona
Constitutions.”

[8] That general appeal to a “fair trial” right, however,
failed to exhaust Castillo’s claim. Hiivala, 195 F.3d at 1106.
It did not reference, as we require, any specific provision of
the U.S. Constitution on which he rested his claim. Lyons, 232
F.3d at 670. Neither did Castillo cite relevant state or federal
cases that might have alerted the Arizona court to his claim.
Baldwin, 124 S. Ct. at 1351. Two of the three federal cases
that he cited, United States v. Hale, 422 U.S. 171 (1975), and
Shepard v. United States, 290 U.S. 96 (1933), discussed fed-
eral evidentiary rules, not due process principles. See, e.g.,
Hale, 422 U.S. at 173 (declining to reach any federal constitu-
tional question); Shepard, 290 U.S. at 104 (excluding evi-
dence admitted under the “dying declaration” exception to the
hearsay rule of evidence because of the risk of prejudice). The
third case that Castillo cited, Grunewald v. United States, 353
U.S. 391 (1957), did not concern the Due Process Clause, but
the Fifth Amendment privilege against self-incrimination. Id.
at 415. Similarly, none of the state cases relied on by Castillo
to support his third point of error involved the express invoca-
tion, explanation or discussion of due process standards. E.g.,
State v. Hughes, 189 Ariz. 62, 938 P.2d 457 (1997) (en banc)
(criminal appeal construing the Arizona Rules of Evidence);
State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996) (criminal
appeal discussing waiver and fundamental error under the
Arizona Rules of Evidence); State v. McVay, 127 Ariz. 450,
622 P.2d 9 (1980) (criminal appeal construing the Arizona
Rules of Evidence); State v. Williams, 111 Ariz. 511, 533
2168 CASTILLO v. MCFADDEN
P.2d 1146 (1979) (criminal appeal reviewing admissibility of
evidence); Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 693
P.2d 348 (App. 1984) (civil appeal applying doctrine of fun-
damental error); Hinson v. Phoenix Pie Co., 3 Ariz. App. 523,
416 P.2d 202 (App. 1966) (civil appeal construing the Ari-
zona Rules of Civil Procedure). Citation of irrelevant federal
or state cases does not provide a state court with a “ ‘fair
opportunity’ to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Kelly, 315 F.3d at
1066.

Sandgathe v. Maass, 314 F.3d 371 (9th Cir. 2002), is not
to the contrary. In that case, an Oregon post-conviction trial
court expressly decided that Sandgathe was “not denied any
right guaranteed . . . under the United States Constitution.
. . .” Id. at 376-77. The Oregon Court of Appeals affirmed
without any opinion. Id. at 375. Noting the Supreme Court’s
presumption that “where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon
the same ground,” Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991), we concluded that, “in light of the [post-conviction
trial court’s] prior decision,” the Oregon Court of Appeals’
summary affirmance also reached the merits of Sandgathe’s
federal claim. Id. at 378 & n.4. Thus, the Ylst presumption
meant Sandgathe had adequately presented his federal claim
to the Oregon Court of Appeals and thereby exhausted it, not-
withstanding his otherwise confused appellate briefing and
reliance on “inapposite federal citations.” Id. at 378. Sand-
gathe so held because the “post-conviction trial court explic-
itly ruled on the federal constitutional issues and there is no
indication that the Court of Appeals did not . . . .”4 Id.
4
Although we need not resolve the issue here, we question whether
Sandgathe’s approach to exhaustion of state court remedies has survived
the Supreme Court’s recent decision in Baldwin. As previously noted,
Baldwin disclaimed our circuit’s approach to exhaustion that had effec-
tively required a state appellate court to review a lower court’s decision
 CASTILLO v. MCFADDEN 2169
Here, Castillo cannot claim the benefit of the Ylst presump-
tion. Unlike in Sandgathe, the Arizona Court of Appeals
addressed each of the issues Castillo briefed and argued and
issued its own reasoned state judgment. It rejected on state
law grounds Castillo’s argument concerning the admission of
his videotaped interrogation; it was silent as to any federal
issue. Castillo had to alert the reviewing court to either the
particular federal constitutional provisions or relevant federal
cases upon which he relied. Lyons, 232 F.3d at 270. But he
cannot raise Arizona evidentiary claims, cite cases dealing
with the admission of evidence, mention the words “fair trial”
and then reasonably expect the Arizona Court of Appeals to
understand that he is complaining of anything other than evi-
dentiary errors.

[9] The conclusion of Castillo’s brief did no better in fairly
presenting a federal due process claim to the Arizona Court
of Appeals. The brief’s parting sentence asserted that “[t]he
gross violations of Appellant’s Fifth, Sixth, and Fourteenth
Amendment rights requires [sic] that his convictions and sen-
tences be reversed and that he be granted a new trial consis-
tent with due process of law.” This conclusory, scattershot
citation of federal constitutional provisions, divorced from
any articulated federal legal theory, was the first time Castil-
lo’s brief used the words “due process” or “Fifth Amendment.”5

for federal issues. 124 S. Ct. at 1351. Baldwin held that the availability of
a lower court opinion addressing a federal issue — an issue not otherwise
presented within the four corners of a petitioner’s state appellate briefing
— did not “fairly present” a federal claim to a state court such that the
claim would be exhausted. Id. Sandgathe, however, looked to the lower
court decision and presumed that the Oregon Court of Appeals had
affirmed on the same federal grounds. 314 F.3d at 378. It did not limit the
exhaustion inquiry to whether Sandgathe had presented his federal claim
in the four corners of his state court appellate briefing.
5
Castillo’s citation of the Fifth Amendment was, of course, incorrect.
The Fifth Amendment prohibits the federal government from depriving
persons of due process, while the Fourteenth Amendment explicitly pro-
hibits deprivations without due process by the several States: “nor shall
any State deprive any person of life, liberty, or property, without due pro-
cess of law.” U.S. Const. amend. XIV (emphasis added).
2170 CASTILLO v. MCFADDEN
Castillo, therefore, left the Arizona Court of Appeals to puz-
zle over how the Fifth, Sixth, and Fourteenth Amendments
might relate to his three foregoing claims. Even if counsel-
crafted briefing merited our liberal construction, the Arizona
Court of Appeals would have had to infer that because the
Sixth and Fourteenth Amendments likely related to Castillo’s
impartial jury claim and because the Fourteenth Amendment
Equal Protection Clause likely related to his Batson claim, by
implication, the Fifth Amendment (or, more accurately, the
Fourteenth Amendment) would have had to relate to his
denial of a fair trial as a result of the admission of the video-
tape. Such a process of elimination with a dose of charitable
construction amounts to a good deal more than “a slight infer-
ential step.” Dissent at 2176 n.5. After all, Castillo’s general
reference to the Fourteenth Amendment in his conclusion
might have referred to either his impartial jury or his Batson
claims. Referring to the Fourteenth Amendment in relation to
these other claims does not exhaust his separate assertion that
the trial court violated his federal due process rights by admit-
ting the videotape. Baldwin, 124 S. Ct. at 1351. Exhaustion
demands more than drive-by citation, detached from any
articulation of an underlying federal legal theory.

[10] Nor could Castillo exhaust his federal due process
argument by asserting that the trial court committed “funda-
mental error” by admitting the videotaped interrogation.
“Fundamental error,” a matter of Arizona law, is “an appellate
mechanism for considering and ruling on issues which were
not presented to the trial court,” Villafuerte v. Lewis, 75 F.3d
1330, 1335 (9th Cir. 1996), analogous to “plain error” review
in federal court. The Arizona doctrine preserves for appeal
issues that “may be so important that overriding consider-
ations concerning the integrity of the system will excuse a
party’s failure to raise the issue in the trial court.” State v.
Gendron, 812 P.2d 626, 628 (Ariz. 1991). Although the Ari-
zona Supreme Court has noted that fundamental error “usu-
ally, if not always, involves the loss of federal constitutional
rights,” id., Castillo’s mere assertion of fundamental error
 CASTILLO v. MCFADDEN 2171
does not mean he asserted a federal constitutional claim;
claims subject to fundamental error review may consist
entirely of assertions under Arizona law. See Johnson v.
Lewis, 929 F.2d 460, 462 (9th Cir. 1991) (holding that when
neither the petitioner’s state court briefs nor the state court’s
decision made any reference to any federal constitutional
claim or cited any federal constitutional cases, the lack of fun-
damental error found by the state court was a lack of funda-
mental error under Arizona’s state constitution). Thus, an
argument of “fundamental error” under Arizona law does not
equate to raising a federal constitutional argument.

[11] Moreover, Castillo could not have expected an Ari-
zona “fundamental error” claim to alert the Court of Appeals
to the particular federal claim he now advances. Appellate
counsel assert “fundamental error” when trial counsel failed
to object properly at trial. Villafuerte, 75 F.3d at 1335. Here,
Castillo repeatedly objected to the videotape’s admission in
the trial court on federal constitutional grounds. Accordingly,
he preserved his right to appeal that issue; he had no need to
argue that the videotape’s admission was “fundamental error.”
If anything, the claim of “fundamental error” would have
directed the Court of Appeals to consider an issue not raised
or otherwise preserved below.

CONCLUSION

Castillo did not fairly present his federal due process claim
to the Arizona Court of Appeals. Thus, he failed to exhaust
that claim. We may not correct counsel’s failure to make this
argument at the proper place and time by allowing him to
argue now what should have been argued in hindsight.
Accordingly, we do not reach the merits of Castillo’s federal
due process claim and affirm the District Court’s dismissal of
his petition.

AFFIRMED.
2172 CASTILLO v. MCFADDEN
HAWKINS, Circuit Judge, dissenting:

A two-year old child tragically dies. The mother and her
boyfriend, Armando Castillo (“Castillo”), are separately alone
with the child when the fatal injuries occur. The medical evi-
dence, sparse as it is, could be used to support a case against
either. Law enforcement, convinced Castillo is responsible,
conduct an in-custody interrogation of him which is captured
on videotape. The lead detective, attempting to extract a confes-
sion,1 repeatedly accuses Castillo of the crime and tells Cas-
tillo that he knows he is lying because the medical evidence
is entirely inconsistent with Castillo’s version of events. The
tape also shows Castillo being patted down and asking for a
lawyer. Throughout, the detective’s pointed questions are
laced with accusations that are simply not true:

The bottom line is, is that he had a brain injury. . . .
That could have only happened while he was with
you. . . . The injury has been narrowed down [to
occurring] during the time that you had him. . . .
[The injury] was so acute that it had to happen
within maybe a two hour period. . . . And you were
the only one that was with him. . . . And that injury
is consistent with either being shaken very hard or
thrown down . . . or something to that effect that
would of caused . . . his brain to bleed. . . . That’s
all scientifically proved at this point.

When the prosecution proposes the use of the entire video-
tape as evidence, Castillo’s counsel objects. In the mistaken
belief that he has reviewed the tape in advance, an experi-
enced and thoughtful trial judge allows the tape, false accusa-
tions and all, to be played to the jury. When he realizes his
mistake, the judge is obviously embarrassed and chagrined:
1
Castillo does not confess, rather he repeatedly reasserts his innocence.
 CASTILLO v. MCFADDEN 2173
In my 19 years on the trial bench, I have never ever
admitted a tape like that in evidence. I’m really con-
cerned about it. I actually thought at first that coun-
sel has agreed ahead of time, had exchanged
transcripts, . . . that there really wasn’t a big objec-
tion to admission of these tapes. . . . I was, therefore,
shocked when I started to hear this tape and read
some of the things on this, the transcripts. The man
invoking his rights was shown to the jury, his arrest,
his pat down. I mean I would never have admitted
any of this. . . . I’ve never admitted a tape like this
before. Never. Never. . . . I can’t get over it. This
will never hold up if there is any appeal, never in a
million years.

The prosecutor relies on the tape’s content in final argu-
ment and the jury convicts Castillo. In denying a motion for
new trial, the trial judge again admits a serious mistake in
admitting the videotape, but nonetheless denies relief on the
reasoning that any error from its admission was harmless. The
state appellate courts agree and affirm Castillo’s 20-year sen-
tence for child abuse and second degree murder on the basis
that no fundamental error occurred at the trial.

My colleagues say we cannot reach the merits because
counsel did not properly preserve the issue on appeal, failing
to exhaust the federal due process claim in the Arizona state
courts.2 I cannot agree. The use of the videotape has been a
central issue in this appeal from the beginning, and Castillo
2
Technically, there is a difference between “failure to exhaust” and
“procedural default.” If a “defendant merely fails to exhaust, he may still
be able to return to state court to present his claims there.” Sandgathe v.
Maass, 314 F.3d 371, 376 (9th Cir. 2002). Procedural default connotes
that the petitioner would not be able to return to state court. Id. Here, it
is clear that Castillo would not be able to return to state court, his state
court claims being procedurally barred. Therefore, “procedural default” is
the correct term, even though it is at times used interchangeably with “fail-
ure to exhaust” in the majority opinion and in this dissent.
2174 CASTILLO v. MCFADDEN
did reference the violation of his constitutional due process
rights in his briefs to the state courts. However labeled, Cas-
tillo consistently complained of the use of the videotape in
evidence and the correspondingly obvious prejudicial impact.
And make no mistake about it, the tape is powerful evidence;
so potent that all the curative instructions in the world could
not erase its impact. I would, therefore, reach the merits and
grant the petition.

I. Procedural Default

My colleagues determine that Castillo did not exhaust his
state court remedies. Citing the Supreme Court’s recent deci-
sion in Baldwin v. Reese, 124 S. Ct. 1347, 1350 (2004), they
note that a state appeals court is not required to read the trial
court decision to discover a constitutional issue not pled in the
briefs. But where we disagree is precisely over Castillo’s
pleadings to the Arizona Court of Appeals, and Baldwin did
not change those rules.

To preserve his federal constitutional claim, Castillo was
required to specifically apprise the state court that he was
making such a claim. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995); 28 U.S.C. §2254(b)(1)(A). He was required to
describe to the state court the operative facts concerning his
claim and the federal legal theory on which his claim is based
— that the admission of the videotape violated his due pro-
cess right to a fair trial under the Fourteenth Amendment. See
Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.), cert. denied,
538 U.S. 1042 (2003). Castillo had to give the state courts a
“fair opportunity to apply controlling legal principles to the
facts bearing upon his constitutional claim.” Id. (internal quo-
tation marks omitted). A general appeal to the broad principle
of due process would not have been sufficient for exhaustion
purposes, nor would it have been sufficient to only raise a
state law claim that was similar to a federal claim. Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); see Duncan, 513
U.S. at 366; Johnson v. Zenon, 88 F.3d 828, 829-31 (9th Cir.
 CASTILLO v. MCFADDEN 2175
1996). But we have more than a general appeal, here, and
more than just a state law claim. Although the federal consti-
tutional claim was not well developed, I would hold that it
was certainly sufficient to alert the state of Arizona to Castil-
lo’s theory and to adequately raise the issue for exhaustion
purposes.

There is no argument that Castillo did describe the facts
surrounding the admission of the videotape in his brief to the
state appellate court, even if he did so mostly in the context
of his state law claims. The question is whether he sufficiently
raised the federal constitutional argument.

In Castillo’s state appellate court briefs,3 he argued that he
was denied a fair trial in violation of the United States Consti-
tution. Also in that section, he cited three federal cases.4 And
in his conclusion, he argued that his Fourteenth Amendment
right was violated and that he should be granted a new trial
consistent with due process of law. Taken together, these
three references should have been enough to alert the state
court as to the nature and basis of Castillo’s constitutional
claims.

To raise the federal legal theory for purposes of exhaustion,
Lyons v. Crawford, 232 F.3d 666, 669-70 (9th Cir. 2000), as
modified by 247 F.3d 904 (9th Cir. 2001), a petitioner must
simply characterize a claim as federal in nature, by either ref-
erencing specific provisions of the Constitution or citing to
federal or state case law analyzing the federal constitutional
issue. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.
3
We may examine both Castillo’s briefs to the Arizona Court of
Appeals and the Arizona Supreme Court because, with the exception of
life-sentence or capital cases, “claims of Arizona state prisoners are
exhausted for purposes of federal habeas once the Arizona Court of
Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th
Cir. 1999).
4
None of the cases specifically applied to the federal due process claim.
2176 CASTILLO v. MCFADDEN
2003) (en banc). Castillo did both, citing specific provisions
of the Constitution and federal cases. He went further, refer-
encing his Fourteenth Amendment right to due process in his
conclusion.5 Considering that he had also mentioned that he
was denied a fair trial in violation of the Constitution in the
context of his argument about the videotape,6 he met his bur-
den.

Second, this is even clearer because Castillo cited federal
cases. In the context of determining whether the petitioner
fairly exhausted his state court remedies, this court in Sand-
gathe v. Maass, 314 F.3d 371, 378 (9th Cir. 2002), noted that
a petitioner’s citation of federal constitutional cases “were not
at all on point[.]” Still, the court said that “[c]onfused argu-
ments or poor lawyering through inapposite federal citations
is not the same as failing to raise an argument at all.” Id.7 Cas-
tillo referenced the federal Constitution and cited to federal
cases in the context of his argument that admitting the unre-
dacted videotape of his interrogation violated his right to a
fair trial. We cannot ask for perfection — this should be enough.8
5
The majority notes that “citation of a relevant federal constitutional
provision in relation to some other claim does not satisfy the exhaustion
requirement.” But Castillo did not reference violation of his Fourteenth
Amendment due process rights in relation to another specific claim, for
instance, as a part of either of his other argument sections. Had he done
so, of course the state court should not be charged with assuming that the
reference applies to the other arguments. Rather, Castillo’s brief only
required the court to make a slight inferential step to put together his two
references — denial of a fair trial in violation of the U.S. Constitution in
the context of his videotape argument and violation of the Fourteenth
Amendment in the conclusion.
6
I concede that under Hiivala, reference to denial of a fair trial, on its
own, would not have been sufficient for exhaustion. 195 F.3d at 1106.
7
In Sandgathe, the panel ultimately held that the petitioner exhausted
his claims because the state appellate court had addressed the federal
issues, despite any arguable weaknesses in petitioner’s presentation of the
federal issues in his briefs to that court. 314 F.3d at 376-378.
8
The majority says that Castillo engaged in “drive-by citation.” Our
case law requires citation to federal or state case law analyzing the federal
 CASTILLO v. MCFADDEN 2177
The majority relies on Johnson and Hiivala. 88 F.3d at 830-
31; 195 F.3d at 1106. But, in Johnson, the petitioner made no
specific reference to the Constitution or federal case law. 88
F.3d at 830-31. Similarly, in Hiivala, we held that the peti-
tioner failed to exhaust his claims when he argued to the state
court that the evidence was insufficient to support a state law
conviction, but made no reference to the Due Process Clause,
the Fourteenth Amendment, nor any federal or state cases
involving the legal standard for a federal constitutional viola-
tion. 195 F.3d at 1106-07. Thus, Hiivala and Johnson are
clearly distinguishable from this case, where Castillo did all
three.

II. Habeas Standard

Because I conclude that Castillo did sufficiently raise the
federal due process claim in the Arizona state courts, I turn to
the application of the Antiterrorism and Effective Death Pen-
alty Act (“AEDPA”) standard, where the Arizona state courts
did not rule upon Castillo’s federal claim. Typically, when
presented with an AEDPA-governed habeas petition on
appeal, we would review the state court opinion de novo to
determine whether that opinion was “contrary to or involved
an unreasonable application of clearly established federal
law.” 28 U.S.C. § 2254(d); Lewis v. Lewis, 321 F.3d 824, 829
(9th Cir. 2003). Yet the reasoning of the Arizona courts was
based entirely on state law — the state courts did not apply
federal law at all.

To comply with federal precedent, however, a state court
need not be aware of the precedent, let alone cite it. Early v.

constitutional issue or reference to specific provisions of the federal Con-
stitution. Our case law does not require that the petitioner devote a para-
graph or a page or an entire argument section to the federal legal issue.
There simply must be a reference to federal law sufficient to put the state
court on notice of the claim so that the court can address the issue. The
state court, in what should have been careful review of the briefs, certainly
had enough to address the federal claim.
2178 CASTILLO v. MCFADDEN
Packer, 537 U.S. 3, 8 (2002). Instead, federal courts are to
examine whether the standard actually applied, in this case
state harmless error analysis, is contrary to clearly established
Supreme Court precedent. Id. at 11. This court has applied
Early in two situations — where the state court administers a
reasoned opinion, even if it does not address federal law, and
where the state court does not issue a reasoned opinion. See
Powell v. Galaza, 328 F.3d 558, 562-63 (9th Cir. 2003);
Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002).
Clearly the former is applicable here. Although the state
appellate court did not discuss federal precedent, it did issue
a reasoned opinion on the state law question of fundamental
error.9 Thus, under Powell, we must independently examine
the record and determine whether the result of the case,
regardless of the state law reasoning, is contrary to federal
precedent. 328 F.3d at 562-63.

III. Merits

On habeas review under AEDPA, the question is whether
the state court’s decision that admission of the videotape was
harmless error was “contrary to” clearly established law. 28
U.S.C. § 2254(d).10 The writ must be granted if the state
court’s decision “applies a rule that contradicts the governing
9
Although fundamental error is an Arizona state law concept, the Ari-
zona Supreme Court has noted that fundamental error “usually, if not
always, involves the loss of federal constitutional rights.” State v. Gen-
dron, 812 P.2d 626, 628 (Ariz. 1991). Still, the mere assertion of funda-
mental error is not equivalent to an assertion of a federal constitutional
claim.
10
The statute also allows the federal reviewing court to ask whether the
state court decision was an “unreasonable application of” Supreme Court
precedent. 28 U.S.C. § 2254(d). This test is not applicable to Castillo’s
case, however, because a state court decision only involves an unreason-
able application if the state court actually identified the correct governing
legal principle, but then misapplied it. See Williams v. Taylor, 529 U.S.
362, 413 (2000). Here, the state court did not identify any federal principle
at all.
 CASTILLO v. MCFADDEN 2179
law set forth in [Supreme Court] cases” or if it “confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at [an opposite] result.
. . .” Williams v. Taylor, 529 U.S. 362, 405 (2000). In this
case, the question is whether the state court decision based on
harmless error was contrary to Supreme Court precedent.

Under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), a
violation of due process under the United States Constitution
occurs when there was an error in admitting the evidence and
that error had a substantial effect on the jury’s verdict.

First, it seems clear that the videotape was admitted in
error, or at the very least, parts of it were. The trial judge con-
ceded as much and Arizona does not argue to the contrary,
claiming instead that any error in admitting the videotape was
harmless. Under the Arizona Rules of Evidence, the interview
was irrelevant. ARIZ. R. EVID. 401-402; see also ARIZ. R. EVID.
403 (even if the interview was determined to be relevant, it
likely should have been excluded under Rule 403, which pro-
vides that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prej-
udice, confusion of the issues, or misleading the jury . . . .”).
At least parts of the interview were also hearsay not subject
to any hearsay exceptions.11 See ARIZ. R. EVID. 801-802.

Second, even if a Federal Rule of Evidence was violated,
Brecht holds that to establish a due process violation, the peti-
tioner must show that the improper admission of evidence had
“a substantial and injurious effect or influence in determining
the jury’s verdict.” 507 U.S. at 637 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).12 The Supreme
11
The government asserts that the interview was admitted in evidence
to show “interview technique.”
12
O’Neal makes clear that despite the burden of proof seemingly being
put on the petitioner, the proper question is — “Do I, the judge, think that
the error substantially influenced the jury’s decision?” O’Neal, 513 U.S.
at 436.
2180 CASTILLO v. MCFADDEN
Court applied the Brecht standard in O’Neal v. McAninch,
513 U.S. 432 (1995). In that case, the Court held that where
“the record is so evenly balanced that a conscientious judge
is in grave doubt as to the harmlessness of an error[,]” the
court must hold that the error substantially influenced the
jury’s decision. Id. at 437. The Court specifically adopted this
rule and not the opposite rule, which would deny the writ in
cases of grave uncertainty, because the latter rule “would tell
judges who believe individuals are quite possibly being held
‘in custody in violation of the Constitution’ that they cannot
grant relief.” Id. at 442. Such a rule would be “contrary to the
writ’s most basic traditions and purposes.” Id.13

This case presents just that situation. There were no wit-
nesses to this crime, no medical evidence to dispute Castillo’s
defense that the child’s mother shook the baby in her panic,
and no evidence that the child’s other, non-fatal injuries, were
caused by Castillo, other than that Castillo often watched the
child.14 This was a case that turned entirely on credibility, and
Castillo’s credibility was clearly tarnished by his portrayal as
a criminal in the improperly admitted videotape. Although the
magistrate judge refers to “overwhelming evidence of [Castil-
lo’s] guilt,” even without the videotape, it is unclear what that
overwhelming evidence is.

Arizona argues that this circuit’s opinion in Dubria v.
Smith, 224 F.3d 995 (9th Cir. 2000) (en banc), is instructive.
In that case, a woman was killed by chloroform intoxication.
Id. at 999. The defendant had been in the company of the vic-
tim almost nonstop for days preceding her death. Id. He could
not explain how the victim was exposed to chloroform. Id. at
13
Although this decision came before the passage of AEDPA, AEDPA
does not change these basic policy considerations.
14
Castillo’s testimony suggested that the child’s biological father may
have harmed the child when the child visited the father and also that some
of the injuries may have been caused by rough play between the child and
Castillo’s older children.
 CASTILLO v. MCFADDEN 2181
1001. The trial judge allowed into evidence a videotape inter-
view of the defendant by police detectives in which the detec-
tives expressed disbelief in the defendant’s story and
elaborated on their theory of the crime. Id. at 1000.

Although Dubria was a pre-AEDPA case, it is instructive,
albeit for different reasons than Arizona argues. There, we
said that “[v]iewed in its entirety . . . the tape and transcript
show what the state appellate courts quite properly described
as an “unremarkable interview” . . . . There was nothing in
[the detective’s] statements that suggested evidence or theo-
ries of the case that were not presented at trial.”15 Id. at 1001.
It was for that reason that the videotape admission in Dubria
did not amount to a violation of due process.

This case is different. This was certainly anything but an
unremarkable interview. The medical evidence presented at
trial was extensive. Yet no expert set a time-frame on the
child’s death that was narrow enough to preclude Castillo’s
theory that the child’s mother had caused his fatal injury. The
detective, however, clearly represented in the videotape that
the medical analysis did provide such concrete evidence. In
the face of confusing medical testimony and a clear statement
by law enforcement, it is quite likely that the clear statement
had a substantial impact on the jury. In contrast to Dubria,
precisely because the videotape did suggest evidence not pre-
15
The California Court of Appeal had stated:
There is no doubt the officers were accusatory and suggested in
a variety of ways they did not believe appellant. The jury would
certainly understand this to be the police position and would give
to it no more weight than they would the fact appellant was
charged by the prosecutor with murder or that the prosecutor
clearly also disbelieved appellant. . . . The officers’ comments,
however, suggested no more than what the People proposed to
prove at trial. There was nothing particularly damning in the offi-
cers’ statements or suggestions of evidence or theories that the
People did not present or offer at trial.
Dubria, 224 F.3d at 1001 n.2.
2182 CASTILLO v. MCFADDEN
sented at trial, the improper admission in this case quite prob-
ably had a substantial and injurious effect or influence in
determining the jury’s verdict.

In further contrast to Dubria, any curative statement made
by the judge was not sufficient to avoid the injurious effect on
the verdict. Given the highly inflammatory content of the tape
suggesting that the medical evidence was far more conclusive
than it actually was, even with a curative instruction, the inju-
rious effect on the jury’s verdict could not have been miti-
gated. See United States v. Gillespie, 852 F.2d 475, 479 (9th
Cir. 1988) (finding under the circumstances that “the trial
court’s curative instruction to the jury was not sufficient to
obviate the prejudice”); cf. Dubria, 224 F.3d at 1002 (“This
is not a case in which the statements at issue are so clearly
prejudicial that a curative instruction could not mitigate their
effect.”).

Castillo has a viable claim that admission of the videotape
violated his right to due process under the Fourteenth Amend-
ment.16 The state court’s harmless error analysis was contrary
to clear Supreme Court precedent in O’Neal v. McAninch, 513
U.S. 432 (1995). Specifically, the state court’s analysis “con-
tradicts the governing law” set forth in Brecht and applied in
O’Neal, that in the face of important trial errors, including
constitutional violations, a judge facing grave doubt about
whether an error affected a jury must determine that the error
had a “substantial and injurious effect” on the jury’s verdict.
513 U.S. at 438.

IV. Conclusion

I would grant the writ and remand for a new trial. The evi-
dence that was admitted was so prejudicial that despite the
limiting instructions, the evidence still had a substantial and
16
No state shall “deprive any person of life, liberty, or property, without
due process of law.” U.S. CONST. AM. 14.
 CASTILLO v. MCFADDEN 2183
injurious effect or influence in determining the jury’s verdict,
particularly considering there was scant other evidence pre-
sented of Castillo’s alleged guilt. Under AEDPA, the state
court decision was therefore contrary to clearly established
federal precedent. Therefore, I respectfully DISSENT.