Armando Castillo v. James McFadden Arizona Attorney General

370 F.3d 882 Armando CASTILLO, Petitioner-Appellant, v. James McFADDEN, Arizona Attorney General, Respondents-Appellees. No. 03-15715. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 12, 2004. Filed June 1, 2004. Anders V. Rosenquist, Jr., and Florence M. Bruemmer, Rosenquist & Associates, Phoenix, AZ, for the petitioner-appellant. John L. Saccoman, Assistant Attorney General, Phoenix, AZ, for the respondents-appellees. Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-02-00466-PGR. Before RYMER, HAWKINS, and BYBEE, Circuit Judges. OPINION BYBEE, Circuit Judge: 1 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…

Petitioner Armando Castillo, an Arizona prisoner, appeals the District Court’s dis *884 missal' 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 permit; ting 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 and covered in…

dissenting:

A two-year old child tragically dies. The mother and her boyfriend, Armando Castillo (“Castillo”), are separately alone *891 with the child when the fatal injuries occur. The medical evidence, 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 confession, 1 repeatedly accuses Castillo of the crime and tells Castillo 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:

When the prosecution proposes the use of the entire videotape as evidence, Castillo’s counsel objects. In the mistaken belief that he has reviewed the tape in advance, an experienced and thoughtful trial judge allows the tape, false accusations and all, to be played to the jury. . When he realizes his mistake, the judge is obviously embarrassed and chagrined:

The prosecutor relies on the…