Armando Castillo v. James McFadden Arizona Attorney General

399 F.3d 993 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. Opinion Filed June 1, 2004. Amended February 24, 2005. 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. 1 Opinion by Judge BYBEE; Dissent by Judge HAWKINS. ORDER 2 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: 3 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 ...…

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 *995 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…

dissenting:

A two-year old child tragically dies. The mother and her boyfriend, Armando Castillo (“Castillo”), are separately alone with the child when the fatal injuries occur. The medical evidence, sparse as it is, could bé used to support a case against either. Law enforcement, convinced Castillo is responsible, conduct an in-custody interrogation of him which is captured on videotape. The lead detective, attempting *1004 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…