Lead Opinion
Opinion by Judge BYBEE; Dissent by Judge HAWKINS.
ORDER
The opinion and dissent filed on June 1, 2004 and published at
1. At slip op. 6914, first full paragraph, line 11;
2. At slip op. 6914, first full paragraph, line 15;
3. At shp op. 6914, second full paragraph, line 20;
4. At shp op. 6917, first full paragraph, hne 5;
5. At shp op. 6917, first full paragraph, line 17;
6. At shp op. 6917, first full paragraph, line 18;
7. At shp op. 6925, second full paragraph and the carryover paragraph on page 6926,
8. At slip op. 6926, second full paragraph;
9. At slip op. 6926, footnote 8, lines 1-3;
10. At slip op. 6930, first full paragraph, line i;
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 matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.
With the filing of the amended opinion and amended dissent, no further petitions for panel rehearing or rehearing en banc may be filed. See 9th Cir. G.O. 5.3(a).
OPINION
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 U.S. Constitution by permitting the jury to view what he contends 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 petition.
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 arid 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 videotape, 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
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 statements were irrelevant. The court overruled Castillo’s objection 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, however, 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 evidence. 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.
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 irrelevant 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 sentenced 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 explaining its rationale. Castillo then petitioned for discretionary review in the Arizona Supreme Court. The Arizona Supreme Court denied review without comment. Castillo did not pursue 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.
A magistrate judge issued a report and recommendation that agreed Castillo had not exhausted his claim. He concluded Castillo had not demonstrated cause and prejudice to excuse his default and recommended that the District Court dismiss the petition with prejudice. Alternately, he recommended 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,
DISCUSSION
Arizona renews its argument that Castillo’s failure to exhaust state remedies bars federal habeas review.
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,
Castillo’s brief to the Arizona Court of Appeals needed to apprise Ari
Me“general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial,” do not establish exhaustion. Hiivala v. Wood,
Moreover, citation of a relevant federal constitutional provision in relation to some other claim does not satisfy the exhaustion requirement. Recently, the Supreme Court, reversing 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,
Here, Castillo claims that his various trial court motions and his opening brief in the Arizona Court of Appeals presented his federal due process claim to the Arizona Court of Appeals. We disagree.
Castillo principally argues that his motion for a new trial, trial supplemental
Alternately, Castillo argues that his appellate briefing exhausted his Fourteenth Amendment due process claim concerning the admission of the videotape. At best, counsel’s briefing merely hinted at the existence of any federal due process claim. In his briefs statement of the issues, Castillo articulated three separate questions. The headings to his arguments closely mirrored these questions, affirmatively answering 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 inteirogation and arrest and in failing to grant the subsequent motions for a new trial or the motion for reconsideration?
(émphasis added). The only argument at issue in this appeal is question three. Castillo’s statement of that issue and its corresponding argument heading were entirely silent as to any federal due process claim. Castillo neither mentioned in relation 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 process 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, presumably incorporated against Arizona by the Fourteenth Amendment. 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 Arizona 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 argument concerning the videotape, until the penultimate sentence, 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
That general appeal to a “fair trial” right, however, failed to exhaust Castillo’s claim. Hiivala,
Sandgathe v. Maass,
Here, Castillo cannot claim the benefit of the Ylst presumption. Unlike in Sand-gathe, 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,
The conclusion of Castillo’s brief did no better in fairly presenting a federal due process claim to the Arizona Court of Appeals. The briefs parting sentence asserted that “[t]he gross violations of Appellant’s Fifth, Sixth, and Fourteenth Amendment rights requires [sic] that his convictions and sentences be reversed and that he be granted a new trial consistent with due process of law.” This conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory, was the first time Castillo’s brief used the words “due process” or “Fifth Amendment.”
Castillo, therefore, left the Arizona Court of Appeals to puzzle 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 videotape. Such a process of elimination with a dose of charitable construction amounts to a good deal more than “a slight inferential step.” Dissent at 1006 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
Nor could Castillo exhaust his federal due process argument by asserting that the trial court committed “fundamental 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,
Moreover, Castillo could not have expected an Arizona “fundamental error” claim to alert the Court of Appeals to the particular federal claim he how 'advances. Appellate counsel assert “fundamental error” when trial counsel failed to object properly at trial. Villafuerte,
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.
Notes
. 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).
. On appeal, Castillo fails to challenge the magistrate judge's conclusion, 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. Accordingly, we uniquely address Castillo’s antecedent failure to exhaust and not the issue of any resulting procedural default.
. 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,
. 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 effectively required a state appellate court to review a lower court’s decision for federal issues.
. 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 prohibits deprivations without due process by the several States: "nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV (emphasis added).
. I concede that under Hiivala, reference to denial of a fair trial, on its own, would not have been sufficient for exhaustion.
Dissenting Opinion
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 evidence, sparse as it is, could bé 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
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 videotape as evidence, Castillo’s counsel objects. In the mistaken belief that he has reviewed the tape in advance, an experienced and thoughtful trial judge allows the tape, false accusations and all, to be played to the jury. When he realizes his mistake, the judge is obviously embarrassed and chagrined:
In my 19 years on the trial bench, I have never ever admitted a tape like that in evidence. I’m really concerned about it. I actually thought at first that counsel has agreed ahead of time, had exchanged transcripts, ... that there really wasn’t a big objection 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 argument 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 sentence 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.
I. Procedural Default
My colleagues determine that Castillo did not exhaust his state court remedies. Citing the Supreme Court’s recent decision in Baldwin v. Reese,
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,
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,
To raise the federal legal theory for purposes of exhaustion, Lyons v. Crawford,
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 Sandgathe v. Maass,
The majority relies on Johnson and Hiivala.
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 Penalty Act (“AEDPA”) standard, where the Arizona state courts did not rule upon Castillo’s federal claim. Typically, when presented with an AED-PA-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,
To comply with federal precedent, however, a state court need not be aware of the precedent, let alone cite it. Early v. Packer,
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).
Under Brecht v. Abrahamson,
First, it seems clear that the videotape was admitted in error, or at the very least, parts of it were. The trial judge conceded 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 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....”). At least parts of the interview were also hearsay not subject to any hearsay exceptions.
Second, even if a Federal Rule of Evidence was violated, Brecht holds that to establish a due process violation, the petitioner must show that the improper admission of evidence had “a substantial and injurious effect or influence in determining the jury’s verdict.”
This case presents just that situation. There were no witnesses 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.
Arizona argues that this circuit’s opinion in Dubria v. Smith,
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 theories of the case that were not presented at trial.”
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 presented at trial, the improper admission in this case quite probably 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 injurious effect on the jury’s verdict could not have been mitigated. See United States v. Gillespie,
Castillo has a viable claim that admission of the videotape violated his right to due process under the Fourteenth Amendment.
IV. Conclusion
I would grant the writ and remand for a new trial. The evidence that was admitted was so prejudicial that despite the limiting instructions, the evidence still had a substantial and injurious effect or influence in determining the jury’s verdict, particularly considering there was scant other evidence presented of Castillo’s alleged guilt. Under AEDPA, the state court decision was therefore contrary to clearly established federal precedent. Therefore, I respectfully DISSENT.
. Castillo does not confess, rather he repeatedly reasserts his innocence.
. 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,
. 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,
. None of the cases specifically applied to the federal due process claim.
. 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 malte 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.
. 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.
. The majority says that Castillo engaged in "drive-by citation." Our case law requires citation to federal or state case law analyzing the federal constitutional issue or reference to specific provisions of the federal Constitution. Our case law does not require that the petitioner devote a paragraph 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.
. Although fundamental error is an Arizona state law concept, the Arizona Supreme Court has noted that fundamental error "usually, if not always, involves the loss of federal constitutional rights.” State v. Gendron,
. The statute also allows the federal reviewing court to ask whether the state court décision 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 unreasonable application if the state court actually identified the correct governing legal principle, but then misapplied it. See Williams v. Taylor,
. The government asserts that the interview was admitted in evidence to show “interview technique.”
. 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,
. Although this decision came before the passage of AEDPA, AEDPA does not change these basic policy considerations.
. 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.
. 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 officers' statements or suggestions of evidence or theories that the People did not present or offer at trial.
Dubria,
. No state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Am. 14.