Castillo v. McFadden ( 2005 )


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  •                 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.