Armando Castillo v. James McFadden Arizona Attorney General ( 2005 )

Opinion by Judge BYBEE; Dissent by Judge HAWKINS.

ORDER

The opinion and dissent filed on June 1, 2004 and published at 370 F.3d 882 (9th Cir.2004), are hereby amended. The amended opinion and amended dissent are filed concurrently herewith. The Opinion and Dissent are amended as follows:

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 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 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 federal or state cases involving the legal standard for a federal constitutional violation.”

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

5. At shp op. 6917, first full paragraph, line 17; 370 F.3d at 888, second full paragraph, hne 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 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 P.2d 1146 (1975) (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 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 shp op. 6917, first full paragraph, line 18; 370 F.3d at 888, second full paragraph, hne 29, insert the following after “irrelevant federal”: “or state.”

7. At shp op. 6925, second full paragraph and the carryover 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 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 Constitution 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 following: “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.”

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 constitutional issue or reference to specific provisions of the federal Constitution.”

10. At slip op. 6930, first full paragraph, line i; 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 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

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 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 videotape because the detective’s statements were inaccurate 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 mention 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 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.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 Fourteenth Amendment under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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. Constitution, by admitting the videotape of his interrogation and 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 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, 329 F.3d 1069, 1072 (9th Cir.2003).

DISCUSSION

Arizona renews its argument that Castillo’s failure to exhaust state remedies bars federal habeas review.² “An application 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. § 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 available procedure, the question presented.”).

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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Peterson 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

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, 115 S.Ct. 887, 130 L.Ed.2d 865 (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 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 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 federal or state cases involving the legal standard for a federal constitutional violation.

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, 195 F.3d 1098, 1106 (9th Cir.1999) (citation omitted). Nor is it enough to raise a state claim that is analogous or closely similar 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 Oregon 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 federal 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. Constitution, cite the Fourteenth Amendment, or cite any federal or state cases involving the legal standard for a federal constitutional violation. Id.

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, 541 U.S. 27, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004).

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 briefing, and trial motion to reconsider 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, constitutional issue. To exhaust his claim, Castillo must have presented 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.

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 United States and the Arizona Constitutions.”

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, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933), discussed federal evidentiary rules, not due process principles. See, e.g., Hale, 422 U.S. at 173, 95 S.Ct. 2133 (declining to reach any federal constitutional question); Shepard, 290 U.S. at 104, 54 S.Ct. 22 (excluding evidence 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, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), did not concern the Due Process Clause, but the Fifth Amendment privilege against self-incrimination. Id. at 415, 77 S.Ct. 963. 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 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 P.2d 1146 (1975) (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 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). 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, 111 S.Ct. 2590, 115 L.Ed.2d 706 (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, notwithstanding his otherwise confused appellate briefing and reliance on “inapposite federal citations.” Id. at 378. Sandgathe so held because the “post-conviction trial court explicitly ruled on the federal constitutional issues and there is no indication that the Court of Appeals did not... ,”⁴/d

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, 232 F.3d at 670. 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 evidentiary errors.

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.”⁵

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 other claims does not exhaust his separate assertion that the trial court violated his federal due process rights by admitting 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.

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, 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 considerations concerning the integrity of the system will excuse a party’s failure to raise the issue in the trial court.” State v. Gendron, 168 Ariz. 153, 812 P.2d 626, 628 (1991). Although the Arizona Supreme Court has noted that fundamental error “usually, if not always, involves the loss of federal constitutional rights,” id., Castillo’s mere assertion of fundamental error 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 fundamental error found by the state court was a lack of fundamental error under Arizona’s state constitution). Thus, an argument of “fundamental error” under Arizona law does not equate to raising a federal constitutional argument.

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, 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.

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).

2 . 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.

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 process 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.

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 effectively required a state appellate court to review a lower court’s decision 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 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).

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.