FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL M. ZAPATA,

Petitioner-Appellant,

v.

RODOLFO VASQUEZ,

Respondent-Appellee.

No. 12-17503

D.C. No.

3:10-cv-00176-TEH

OPINION

Appeal from the United States District Court

for the Northern District of California

Thelton E. Henderson, Senior District Judge, Presiding

Argued and Submitted

September 11, 2014—San Francisco, California

Filed June 9, 2015

Before: Stephen Reinhardt, Raymond C. Fisher

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher
2 ZAPATA V. VASQUEZ

SUMMARY*

Habeas Corpus

The panel reversed the district court’s denial of a

California state prisoner’s habeas corpus petition challenging

a conviction for first-degree murder with enhancements for

committing an offense for the benefit of a criminal street

gang and personally discharging a firearm in the course of the

offense, and remanded with instructions to grant the petition.

The panel held that defense counsel’s failure to object

to the prosecutor’s falsified inflammatory and ethnically

charged remarks, delivered during closing argumentmoments

before the jury was sent to deliberate the case, constituted

ineffective assistance of counsel. The California Court of

Appeal’s failure to so conclude was based on an unreasonable

factual determination and was an unreasonable application

of controlling Supreme Court law.

COUNSEL

Steven G. Kalar, Federal Public Defender for the Northern

District of California; Robert M. Carlin (argued), Assistant

Federal Public Defender; Mara K. Goldman, Research and

Writing Attorney, San Jose, California, for PetitionerAppellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ZAPATA V. VASQUEZ 3

Kamala D. Harris, Attorney General of California; Dane R.

Gillette, Chief Assistant Attorney General, Gerald A. Engler,

Senior Assistant Attorney General, Peggy S. Ruffra,

Supervising Deputy Attorney General, John H. Deist

(argued), Deputy Attorney General, San Francisco,

California, for Respondent-Appellee.

OPINION

FISHER, Circuit Judge:

In 2004, a jury convicted Paul Zapata of first-degree

murder in violation of California Penal Code § 187, along

with enhancements for committing an offense for the benefit

of a criminal street gang and personally discharging a firearm

in the course of the offense. He was sentenced to two

consecutive terms of 25 years to life in prison. He appealed

to the California Court of Appeal, which denied relief in a

reasoned opinion, and to the California Supreme Court,which

denied review. Having exhausted those avenues, he filed a

habeas corpus petition in federal district court, which the

court denied. He appeals that denial, arguing in part that his

trial counsel’s failure to object to egregious prosecutorial

misconduct during closing argument constituted ineffective

assistance of counsel substantially affecting the outcome of

his trial. We agree, and reverse the district court and remand

the case with instructions to grant Zapata’s habeas petition.

BACKGROUND

In May 2001, shortly after placing a call on a pay phone,

a 19-year-old student named Juan Trigueros was shot and

killed in a 7-Eleven parking lot on Leavesley Road in Gilroy,
4 ZAPATA V. VASQUEZ

California. At the time of the shooting, which took place

around 2 a.m., Trigueros was wearing a basketball jersey

emblazoned with the number 8, for Los Angeles Lakers star

Kobe Bryant. The area in which the shooting took place was

controlled by the Norteños street gang, of which there were

several subgroups, or “cliques.”1 One such clique, of which

Zapata was a member, was Outside Posse, or “OSP.” As an

OSP member, Zapata had participated in attacks on Eighth

Street gang members and Mexican nationals.

The Norteños’ rivals were a subset of the Sureños street

gang known as Eighth Street, whose identifying symbol was

the number 8. Sureños tended to be first-generation Mexican

immigrants who spoke limited English, whereas Norteños

tended to be established U.S. residents who spoke English

rather than Spanish. According to an expert on gang activity

in the area, by wearing the number 8 in Norteño territory,

Trigueros, a first-generation Mexican immigrant, was a

“marked man.” There was no evidence Trigueros was

affiliated with the Sureños.

The only eyewitness to the shooting, Brian Puphal,

testified that he observed one man “[f]acing the pay phone

trying to concentrate on whatever he was talking about” and

a second man, about two or three feet away, “[r]aising his

arms in anger” and yelling at the person on the phone. 

Puphal saw the man who was yelling draw a pistol from his

waistband and fire a shot at the man who was on the phone,

from two or three feet away, and then fire a second shot from

about six feet away. The man who was on the phone – later

identified as Trigueros – stumbled into the 7-Eleven, where

1 The prosecution’s expert on Gilroy gangs, Officer Geoff Guerin,

referred to the Norteño gang subgroups as “cliques.”
ZAPATA V. VASQUEZ 5

he died. Puphal saw the shooter run away through a nearby

car wash and, soon thereafter, saw a white pickup truck drive

slowly past the 7-Eleven. Puphal described the shooter to a

police sketch artist, noting he was “sure” the killer had a

“scraggly goatee.” He was not, however, able to identify

anyone as the shooter when shown two photographic lineups,

one of which included a photograph of Zapata. At trial,

Puphal was shown a June 2001 photograph of Zapata and

testified that the person depicted in the photo “[c]ould be” the

shooter. In a pretrial statement, Puphal described the shooter

as being 5'5", but at trial he recalled the shooter being

“somewhere around” 5'5" to 5'8" tall.

A second witness, Joe Morton, had been working at the

neighboring Shell gas station when he heard gunshots, went

outside, and saw a man he described as “nonchalantly

walking” from the direction of the 7-Eleven before getting

into a white Ford pickup truck. Morton described the man as

being between 5'10" and 6' tall.

A third witness, Felipe Davila, testified that he was

shopping at the 7-Eleven when he heard “screeching” and ran

outside to see a white truck being driven in a “wild” manner

and sustain damage after hitting a traffic island. He testified

that he was “positive” the vehicle was a Toyota, and a month

before trial, he identified Zapata’s white Toyota pickup truck,

with damage, as the one that he saw that night.

Zapata’s ex-girlfriend, Nancy Echeverria, testified that

she and Zapata had attended a barbeque at an OSP member’s

home a few blocks from the 7-Eleven in the hours before

Trigueros’ murder. She said Zapata left between 10 and 11

p.m. to drive a friend to work. In November 2002, 18 months

after the murder, Echeverria placed a call to a police tip line
6 ZAPATA V. VASQUEZ

and told Detective Daniel Zen she suspected Zapata had

committed the crime. In an interview with Detective Zen,

Echeverria said she thought Zapata was the killer because the

police sketch looked like him and his truck had disappeared

the following morning. At trial, however, Echeverria

testified that she saw Zapata driving his truck the day after

the shooting, and that she had overstated the degree of

resemblance between Zapata and the police sketch. She also

testified that she had been motivated to call the tip line

because Zapata had broken up with her and she wanted to

“burn” him and his new girlfriend “in a big way.”

Another witness, Sarah Sanchez, the ex-girlfriend of an

OSP member, testified that shortly after the shooting, in May

or early June 2001, she saw Zapata when she was driving an

OSP member named Donald Reyes to the “Ramirez ranch,”

the home of mutual friends in Gilroy.

2 According to Sanchez,

Zapata asked her to drive his truck to Stockton or Manteca;

when she asked why, Zapata said he had “shot up somebody

at 7-Eleven.”

Victoria Lopez, who was dating Zapata’s close friend,

Edward Lopez, at the time of the murder, told Detective Zen

in a 2002 interview that Zapata drove a white pickup truck in

the spring of 2001 but began to drive a black Taurus shortly

after the shooting in May 2001. She said Edward told her

Zapata’s truck was “broke[n] down” and being stored at the

Stockton home of Rico Clarke, a former OSP associate. At

trial, however, Lopez testified she thought Zapata drove the

2 Specifically, Sanchez testified she saw Zapata between two days and

a week before she read about the 7-Eleven murder and saw the composite

sketch in the newspaper. During cross-examination, she explained that

she read this newspaper article in late May or early June.
ZAPATA V. VASQUEZ 7

truck “sometime after” May 2001 until he got a black car and

could not recall the rest of her pretrial statement.

Detective Zen testified that inDecember 2002, Echeverria

told him Zapata’s truck was located at the home of Priscilla

Pena, Zapata’s new girlfriend. Zen located the truck there,

but it was gone a few months later. Zen eventually located

the truck at Pena’s sister’s house and seized it in March 2003.

The defense called a handful of witnesses, including

Pena; Zapata’s uncle, Rocky Reyes; and Zapata’s cousin,

Donald Reyes. All of these witnesses said Zapata was

incapable of growing a goatee, countering Puphal’s

description of the shooter as having a goatee. They also

testified that Zapata continued to drive the white pickup truck

well into the summer of 2001, long after the Trigueros

shooting.

At trial, the state was represented by Stuart Scott, a Santa

Clara County Deputy District Attorney. In closing, Scott

argued that Zapata had previously been involved in attacks on

Eighth Street gang members and Mexican nationals and that

the similarity between his likeness and Puphal’s description

of the perpetrator, disappearance of his white pickup truck

and confession to Sarah Sanchez compelled a finding of guilt. 

The defense countered that the prosecution had been unable

to link Zapata conclusively to the scene of the crime either

through positive eyewitness identification or physical

evidence and emphasized bias and credibility problems with

several of the prosecution’s witnesses.

Critical to the issue before us, at the end of the trial during

the prosecution’s closing rebuttal argument, Scott wove out

of whole cloth, with no evidentiary support, a fictional and
8 ZAPATA V. VASQUEZ

highly emotional account of the last words Trigueros heard

Zapata shout as Zapata supposedly shot him. The prosecutor

ascribed to Zapata several despicable, inflammatory ethnic

slurs:

Picture, if you will, the last words that Juan

Trigueros heard before the defendant shot

him in the back and to make sure he was dead

shot him in the chest. What were the last

things he heard? What’s the reasonable

inference of what was going on that precise

moment the second before he’s mortally

wounded? Fuckin’ scrap. You fuckin’

wetback. Can you imagine the terror and the

fear Juan Trigueros must have felt as he’s

cowering into the phone. . . . Fuckin’ scrap. 

Wetback.

The prosecutor repeated these inflammatory remarks twice

more, including just before the jury retired to begin

deliberations.

These slurs were invoked deliberately. In his opening

statement, the prosecutor had told the jury the word “scrap”

is “a derogatory term – it’s like using the N word – for

Mexican nationals. It’s very derogatory. Mojado [wetback]

is another derogatory term.” The prosecution’s expert

witness testified “scrap” means “piece of shit,” and that

although Mexican nationals “might not realize exactly what

it means as far as the significance of it . . . it’s taken as an

insult” and would be “fighting words” to a Sureño gang

member.
ZAPATA V. VASQUEZ 9

Zapata’s counsel neither objected to the fictional,

inflammatory statements in the closing argument nor asked

the trial court to issue a curative instruction. The jury was

then sent to deliberate. After three hours, it found Zapata

guilty of first-degree murder.

In January 2009, the California Court of Appeal affirmed

Zapata’s murder conviction. The California Supreme Court

denied review. Zapata next petitioned the federal district

court for habeas relief in January 2010. The district court

denied his petition but granted a limited certificate of

appealability. Zapata timely appealed the district court’s

judgment.

STANDARD OF REVIEW

We review de novo the district court’s denial of Zapata’s

§ 2254 habeas petition. See Hurles v. Ryan, 752 F.3d 768,

777 (9th Cir. 2014). Because this case is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), habeas relief can be granted only if the state court

proceedings “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law as determined by the Supreme Court of the

United States” or resulted in a decision that was “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1)–(2).

DISCUSSION

Zapata argues the prosecutor’s inflammatory, fabricated

and ethnically charged comments constituted prosecutorial

misconduct and that his counsel provided ineffective
10 ZAPATA V. VASQUEZ

assistance by failing to object to them. Although we cannot

reach the prosecutorial misconduct claim because it is

procedurally defaulted, we agree that counsel’s failure to

insulate the jury from the prosecutor’s grossly improper

comments constituted ineffective assistance.3

I. Procedural default of prosecutorial misconduct claim

Zapata first argues the prosecutor’s comments constituted

misconduct. Because the state court reviewed the merits of

the direct prosecutorial misconduct claim, he contends, we

may as well. “If a state appellate court overlooks the

procedural default and considers an objection on the merits,

the state has not relied on the procedural bar and the federal

courts may review the claim.” Thomas v. Hubbard, 273 F.3d

1164, 1176 (9th Cir. 2001), overruled on other grounds by

Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002) (en banc). 

“[U]nless a [state] court expressly (not implicitly) states that

it is relying upon a procedural bar, we must construe an

ambiguous state court response as acting on the merits of a

claim, if such a construction is plausible.” Chambers v.

McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008).

Here, the state court expressly invoked a procedural bar

in addressing Zapata’s prosecutorial misconduct claim,

saying that “[d]ue to counsel’s failure to object to these

remarks, . . . the claim of prosecutorial error, as such, is not

available on appeal.” Although the court went on to discuss

the merits of the claim, because it separately relied on the

procedural bar, the claim is defaulted. See Loveland v.

Hatcher, 231 F.3d 640, 643 (9th Cir. 2000) (holding that,

 

3 Because we conclude that Zapata’s petition should be granted on this

basis, we do not reach his remaining claims.
ZAPATA V. VASQUEZ 11

when “reliance upon [the state court’s] procedural bar rule

was an independent and alternative basis for its denial of the

petition, review on the merits of the petitioner’s federal

constitutional claim in federal court is precluded”). 

Moreover, Zapata does not seek to excuse his procedural

default. We therefore cannot reach the claim on the merits,

although the nature of the prosecutor’s remarks remains

relevant to Zapata’s ineffective assistance claim.

II. Ineffective assistance of counsel for failure to object to

closing remarks

Zapata next argues his trial counsel was constitutionally

ineffective for failing to object to the prosecutor’s fabricated

and inflammatory remarks. See Trillo v. Biter, 769 F.3d 995,

1002 (9th Cir. 2014) (analyzing instances of prosecutorial

misconduct to which trial counsel did not object as ineffective

assistance claims).4 Under Strickland v. Washington,

466 U.S. 668, 687 (1984), Zapata must demonstrate both that

his counsel’s performance was deficient and that the deficient

performance prejudiced his defense. On habeas review,

“[t]he pivotal question is whether the state court’s application

of the Strickland standard was unreasonable.” Harrington v.

Richter, 562 U.S. 86, 101 (2011). NotwithstandingAEDPA’s

deferential standard of review, we conclude the state court

4 Zapata has requested we expand the certificate of appealability (COA)

to consider this claim, because the district court granted a COA only on

the direct prosecutorial misconduct claim. The government states that it

has “address[ed] the claim indirectly by showing that there was either no

prosecutorial misconduct or possibility of prejudice.” We therefore grant

Zapata’s request to expand the COA pursuant to Ninth Circuit Rule 22-

1(e). See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Notably, the

district court addressed Zapata’s claim as an ineffective assistance claim

rather than as a direct prosecutorial misconduct claim.
12 ZAPATA V. VASQUEZ

unreasonably determined that Zapata’s counsel was not

deficient in failing to object to the prosecutor’s inflammatory

remarks on rebuttal and that Zapata was not prejudiced as a

consequence.

A. Deficient performance

We first consider whether Zapata’s counsel performed

deficiently by failing to object to the prosecutor’s remarks. 

To do so, we must determine whether the prosecutor’s

remarks constituted objectionable misconduct. See Juan H.

v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (explaining that

the merits of the underlying claim “control the resolution of

the Strickland claim because trial counsel cannot have been

ineffective for failing to raise a meritless objection”). In this

respect, our task is made easy because the California Court of

Appeal itself concluded “the prosecutor committed serious

misconduct.”

During closing rebuttal, the prosecutor urged the jury to

“[p]icture” the “last words that Juan Trigueros heard,” and

then uttered the following phrases: “Fucking scrap. Wetback. 

Imagine again the last words you hear before you leave this

Earth.” The prosecutor repeated the slurs several times,

emphasizing the falsified story of the victim’s final moments

as a theme in his rebuttal:

Picture, if you will, the last words that Juan

Trigueros heard before the defendant shot him

in the back and to make sure he was dead shot

him in the chest. What were the last things he

heard? What’s the reasonable inference of

what was going on in that precise moment the

second before he’s mortally wounded?
ZAPATA V. VASQUEZ 13

Fuckin’ scrap. You fuckin’ wetback. Can

you imagine the terror and the fear . . . Juan

Trigueros must have felt as he’s cowering into

the phone as Puphal told you kind of bending

into the phone to try [to] avoid this person, to

not have any issue, to just try [to] get home

and lead his life. Fuckin’ scrap. Wetback. 

He died because he was born in Mexico and

he made the mistake of wearing a number 8

jersey on Leavesley Avenue in the city of

Gilroy and made the mistake of being at 7-

Eleven the same night the defendant was

partying five blocks away. What a way to exit

this world.

. . . .

Wearing that number 8 Lakers jersey. Wrong

place at the wrong time. Desperate. Fucking

scrap. Wetback. Imagine again the last words

you hear before you leave this Earth. . . .

. . . .

[Zapata] chose this [gang] lifestyle. Juan

Trigueros didn’t choose it. Try to remember

those last words. Fuckin’ scrap. Wetback. 

And in a few seconds he’s left this Earth at the

age of 19 years old. Juan Trigueros.

In addition, the prosecutor entreated the jurors to “use

your God-given common sense, and do the correct thing in

this case which is to bring this man to justice. If you can’t
14 ZAPATA V. VASQUEZ

bring Juan Trigueros back, this is the next best thing. Do the

right thing, Ladies and Gentlemen. Please, I implore you.”

The state court, noting the prosecutor’s improper

argument was “the most troubling” of the issues Zapata raised

on direct appeal, cogently explained why the prosecutorial

remarks, which it labeled “pure fiction,” amounted to “serious

misconduct”:

[T]he suggestion that the killer was shouting

ethnic epithets was wholly speculative. The

only eyewitness to the actual shooting, Brian

Puphal, was able to say only that the killer

was shouting and gesticulating at the victim,

who was cowering into the phone booth. 

Some basis for the prosecutor’s speculation

could be found in the facts that defendant and

some of his OSP companions possessed a

demonstrated animosity toward Mexican

nationals, and that to wear number 8 in the

neighborhood of the shooting would furnish a

particular stimulus for any OSP member to

inflict violence upon the wearer’s person. But

while this chain of inferences could furnish a

motive for the shooting and elements such as

intent and premeditation, it was pure fiction to

suppose that it also established what was

actually being said at the time of the shooting.

More critically, the fiction thus spun by the

prosecutor was both inflammatory and wholly

extraneous to any issue properly before the

jury. . . . The prosecutor could have no reason

for mentioning it other than to inflame the
ZAPATA V. VASQUEZ 15

jury’s sentiments. There was simply no

occasion for the jury to contemplate the

victim’s subjective experience at the time of

his murder, even if there had been an

evidentiary basis to do so. By deliberately

drawing the jury’s attention to that irrelevant

and improper consideration, the prosecutor

committed serious misconduct.

The court’s conclusion that the prosecutor committed

serious misconduct was entirely correct. See Darden v.

Wainwright, 477 U.S. 168, 180–81 (1986) (observing that

inflammatory and misleading argument is improper). In a

similar context, we held that a prosecutor commits

misconduct by recounting the crime from the victim’s

perspective during closing argument:

[T]he prosecutor engaged in misconduct when

he delivered a soliloquy in the voice of the

victim. By doing so, the [p]rosecutor

inappropriately obscured the fact that his role

is to vindicate the public’s interest in

punishing crime, not to exact revenge on

behalf of an individual victim. Furthermore,

the prosecutor seriously risked manipulating

and misstating the evidence by creating a

fictitious character based on the dead victim

and by “testifying” in the voice of the

character as if he had been a percipient

witness. Finally, by testifying as [the victim],

the prosecutor also risked improperly

inflaming the passions of the jury through his

first-person appeal to its sympathies for the

victim who, in the words of the prosecutor,
16 ZAPATA V. VASQUEZ

was a gentle man who did nothing to deserve

his dismal fate.

Drayden v. White, 232 F.3d 704, 712–13 (9th Cir. 2000).5

Those same concerns exist here. First, by urging the

jurors to base their decision on an experience of the victim

the state court labeled “pure fiction,” the prosecutor

improperly encouraged them to convict Zapata out of

sympathy for Trigueros and animus towards the killer. 

Second, by falsely saying the victim heard hateful ethnic slurs

in the moments before his death, the prosecutor manipulated

and misstated the evidence. As the state court explained, the

only eyewitness to the murder, Brian Puphal, testified that he

could not hear what the killer was yelling in the moments

before Trigueros’ death. Yet the prosecutor presented this

fictional scenario as though it was fact. And just before

concluding his rebuttal argument, he invited the jurors to

“remember those last words” Trigueros heard as though

Zapata had uttered them. The fabrication was especially

pernicious because of the extensive evidence of Zapata’s

gang-related criminal history. By concocting the details of

the victim’s dying experience in this manner, the prosecutor

5 Although Drayden is a pre-AEDPA case, see 232 F.3d at 708, it

applied clearly established Supreme Court precedent – specifically,

Darden, 477 U.S. 168, and Donnelly v. DeChristoforo, 416 U.S. 637, 642

(1974) – to analyze the prejudicial effect of prosecutorial misconduct, see

id. at 713–14; see also Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012)

(“The ‘clearly established Federal law’ relevant here is our decision in

Darden v. Wainwright, which explained that a prosecutor’s improper

comments will be held to violate the Constitution only if they ‘so infected

the trial with unfairness as to make the resulting conviction a denial of due

process.’” (citation omitted)).
ZAPATA V. VASQUEZ 17

purposefully blurred the distinction between Zapata’s past

convictions and the crime for which he was standing trial.6

Finally, the statements were improperly designed to

appeal to the passions of the jury. That the slurs were

directed at a specific ethnic group particularly risked sparking

visceral outrage among members of the jury and encouraged

them to convict based on emotion rather than evidence.7 Cf.

6 Nor can the prosecutor’s statements be characterized as reasonable

inferences that could be drawn from the evidence. Although there was

evidence that OSP members had shouted these words in an unrelated

attack that occurred seven weeks after the Trigueros shooting, there was

not a shred of evidence in the record that the shooter uttered these words

to Trigueros. Although a prosecutor “may strike hard blows, he is not at

liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88

(1935). Such “foul blows” include spinning a fiction and presenting it as

the truth to the jury in a closing summation.

7 Racial and ethnic slurs incite particular offense and outrage in the

listener. As one scholar has observed:

uses of slurs . . . are offensive simply because they

sometimes constitute violations on their very

prohibition. Just as whoever violates a prohibition risks

offending those who respect it, perhaps the fact that

slurs are prohibited explains why we cannot escape the

affect, hatred and negative association tied to them . . . . 

Prohibited words are usually banished wherever they

occur. This explains why bystanders (even when silent)

are uncomfortable, often embarrassed, when confronted

by a slur. Whatever offenses these confrontations

exact, the audience risks complicity, as if the offense

were thrust upon them, not because of its content, but

because of a responsibility we all incur in ensuring

certain violations are prevented; when they are not, they

must be reported and possibly punished. Their

occurrences taint us all.
18 ZAPATA V. VASQUEZ

McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987) (noting

“[t]he Constitution prohibits racially biased prosecutorial

arguments” (citing Donnelly, 416 U.S. at 643)). The

prosecutor’s remarks here plainly constituted objectionable

and serious misconduct, as the California Court of Appeal

concluded.

Nonetheless, the court stopped short of holding that trial

counsel performed deficiently by failing to object:

[T]he record does not affirmatively suggest

any tactical reason for the lack of objection. 

It is nonetheless conceivable that counsel had

such a reason. Where jury argument is

concerned, it is always conceivable – if barely

– that something in the tone of the challenged

remarks leads counsel to believe they may

backfire. This possibility may seem

especially remote here, where the prosecutor

appears to have presented the case with

considerable competence and skill. The same

may be said, however, of defense counsel. 

We are simply unable to say on this cold

record that there could be no conceivable

tactical reason for the latter’s acquiescence in

the former’s improper jury arguments.

That conclusion is unreasonable, particularly given the

seriousness of the prosecutorial misconduct that the state

court itself articulated so powerfully.

Ernie Lepore, Speech and Harm, N.Y. Times, Nov. 7, 2010, available at

http://opinionator.blogs.nytimes.com/2010/11/ 07/speech-and-harm/ (last

visited May 20, 2015).
ZAPATA V. VASQUEZ 19

On habeas review, we accord deference both to trial

counsel’s failure to object and to the state court’s conclusion

that such failure was reasonable. See Yarborough v. Gentry,

540 U.S. 1, 6 (2003) (acknowledging review is “doubly

deferential when it is conducted through the lens of federal

habeas”). We consider whether “it would have been

reasonable to reject [Zapata’s] allegation of deficient

performance for any of the reasons expressed by the court of

appeal.” Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir.

2013). “Because of the difficulties inherent in making the

evaluation, [we] must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, [Zapata] must overcome the

presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Tilcock v.

Budge, 538 F.3d 1138, 1146 (9th Cir. 2008) (quoting

Strickland, 466 U.S. at 689).

Although “[t]he right to effective assistance extends to

closing arguments,” Yarborough, 540 U.S. at 5, failure to

object during a closing summation generally does not

constitute deficient performance. “[A]bsent egregious

misstatements, the failure to object during closing argument

and opening statement is within the wide range of permissible

professional legal conduct.” Cunningham v. Wong, 704 F.3d

1143, 1159 (9th Cir. 2013) (internal quotation marks

omitted). Here, however, the remarks – fabricated from

whole cloth, designed to inflame the passions of the jury and

delivered in the waning moments of trial – unquestionably

were “egregious misstatements.” Even if the first such

remark could have “backfire[d],” as the state court

hypothesized, a timely objection would have curtailed its

repetition. Instead, trial counsel’s silence, and the judge’s

consequent failure to intervene, may have been perceived by
20 ZAPATA V. VASQUEZ

the jury as acquiescence in the truth of the imagined scene –

or at least, in the validity of such speculation about the

victim’s last minutes.8

Especially significant is the timing of the comments,

which were made during rebuttal after defense counsel’s last

opportunity to address the jury. The prosecutor repeated the

slurs toward the very end of his closing rebuttal; after urging

the jurors to “[t]ry to remember those last words. Fuckin’

scrap. Wetback,” he declared, “I’m pretty much done.” By

reserving the remarks for rebuttal, the prosecution insulated

them from direct challenge. As a result, the only way

Zapata’s trial counsel could have challenged the

misstatements would have been to object and request a

curative instruction.

Defense counsel’s failure to object to this egregious

misconduct therefore “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. The state

court’s conclusion that “it is always conceivable” that trial

counsel might have a reason not to object to improper jury

argument – even where, as here, it was falsified,

inflammatory and delivered immediately before the jury was

sent to deliberate Zapata’s fate – contravenes the Supreme

Court’s admonition that “courts may not indulge post hoc

rationalization for counsel’s decisionmaking that contradicts

the available evidence of counsel’s actions.” Harrington,

562 U.S. at 108 (internal quotation marks omitted); see also

Wiggins v. Smith, 539 U.S. 510, 526–27 (2003) (rejecting a

state court’s attempt to rationalize counsel’s limited

investigation into mitigating evidence as a strategic decision

8

Indeed, during the defense closing, the prosecutor did not hesitate to

object to potentially improper statements by defense counsel.
ZAPATA V. VASQUEZ 21

when available evidence suggested counsel’s conduct

stemmed from “inattention, not reasoned strategic

judgment”)). Moreover, by stating that “it is always

conceivable” that the “tone” of the challenged remarks

provides a reason not to object, the state court effectively

eliminated the possibility of ever finding ineffectiveness of

counsel for failing to object during closing summation, no

matter how egregious the argument.

Here, the record suggests “nothing strategic about failing

to object” to patent, inflammatory and repeated misconduct. 

Tilcock, 538 F.3d at 1146; cf. United States v. Sanchez,

659 F.3d 1252, 1258 (9th Cir. 2011) (noting defense counsel

should have objected to the prosecutor’s improper rebuttal so

the district court could issue a “strongly worded curative

instruction”). The state court’s determination that Zapata’s

attorney did not perform deficiently plainly was objectively

unreasonable under § 2254(d)(1).

B. Prejudice

We therefore turn to the state court’s conclusion that

Zapata was not prejudiced by the prosecution’s unchallenged

argument. To establish prejudice under Strickland, “[t]he

likelihood of a different result must be substantial, not just

conceivable.” Harrington, 562 U.S. at 112. On habeas

review, “[i]nstead of considering whether [Zapata] met the

burden of proving prejudice, we must decide whether the

state post-conviction court was reasonable in determining that

[he] was not prejudiced.” Vega v. Ryan, 757 F.3d 960, 969

(9th Cir. 2014) (internal quotation marks omitted). In other

words, under AEDPA, Zapata is entitled to relief only if the

state court’s prejudice analysis was contrary to, or an

unreasonable application of, Strickland’s prejudice prong,see
22 ZAPATA V. VASQUEZ

28 U.S.C. § 2254(d)(1); or if the state court’s prejudice

analysis “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). We “must uphold the state

court’s decision if ‘fairminded jurists could disagree’ as to

whether it was correct.” Gulbrandson v. Ryan, 738 F.3d 976,

990 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 88). 

Here, the totality of the circumstances shows the California

Court of Appeal’s prejudice determination was unreasonable.

1. The evidence of guilt was weak, and the state

court’s contrary conclusion rested on multiple

unreasonable determinations of the facts.

Although the state court acknowledged that “the

prosecution case was hampered by weaknesses in the

identification evidence,” it nevertheless concluded it was

“highly unlikely that the jury was influenced by the

prosecutor’s improper argument as opposed to the other

strong evidence of [Zapata’s] guilt.” The “strong evidence”

the court cited included these “facts”:

(1) “the universe of likely perpetrators was effectively

confined to OSP members by the absence of any explanation

for the crime other than gang-related hatred”;

(2) the similarities between Zapata’s likeness and the

police sketch meant “the gunman was either [Zapata] or

another OSP member who also happened to resemble the

sketch”; and

(3) “[t]he involvement of [Zapata]’s pickup in the

shooting, which the defense did not seriously contest, made
ZAPATA V. VASQUEZ 23

it extremely likely that he was either the gunman or the

driver.”

The court concluded that “[t]hese facts, which do not

depend on the credibility of any witness who had an arguable

motive to lie, pointed strongly to [Zapata] as the actual

killer.”

The record does not support the court’s characterization

of this evidence, and its ultimate prejudice determination

regarding the facts was unreasonable on the actual record. 

The state court’s first observation is demonstrably an

unreasonable determination of the facts. See 28 U.S.C.

§ 2254(d)(2). Because OSP was just one of many active

Norteño gangs in the Gilroy area, the universe of perpetrators

was not “confined to OSP members” – it was significantly

broader than the state court assumed. The prosecution’s gang

expert, Officer Guerin, testified that there were “several

cliques of Norteño gangs” active in the area, including OSP,

East Side Gilas, Firme Mafia, Family Unity and the Brown

Pride Kings, and “some other smaller ones.” He further

testified that “any person from a Norteño gang” would have

viewed a member of Calle Ocho (“Eighth Street”) as the

enemy and thus would have harbored animosity towards

someone wearing a number 8 jersey like the one Juan

Trigueros had on. Guerin noted the “biggest . . . two” gangs

were the East Side Gilas and OSP, both of which had been

particularly active the summer of Trigueros’ shooting. When

asked why a man wearing a number 8 jersey would be

targeted, Guerin said:

8 is common – is an identifying number for all

our Sureño gangs in Gilroy . . . . So it’s

significant in that in my opinion . . . if any
24 ZAPATA V. VASQUEZ

Norteño gang member including someone

from OSP sees someone . . . who[m] they

perceived to be a possible gang member or a

Sureño gang member wearing a jersey with

the number 8 it could help better their

perception as to that person being from and a

member of the Eighth Street Sureño gang.

The prosecutor questioned Guerin about the significance

of the area where Trigueros was stranded:

Q: That particular area down Leavesley past

the 7-Eleven where our shooting took place

. . . is that an area that is more Norteño

controlled or Sureño controlled?

A: It would be more – we see more activity of

Norteño gang members in that area.

Q: Is that an area where if an Eighth Street

gang member would appear or try to loiter or

hang out he would be someone possibly

challenged by a Norteño gang member?

A: Correct. . . . [That area is] highly traversed

by everyone in town and most importantly

Norteño gang members.

Guerin further explained:

7-Eleven on Leavesley – Leavesley is a main

road in Gilroy – is predominantly a Norteñocontrolled area. Many Norteño gang
ZAPATA V. VASQUEZ 25

members live in the immediate area . . . so I

consider that area a Norteño gang area.

And a Sureño gang member going into that

area, whether it’s the 7-Eleven store, the

Rotten Robbie’s gas station or the gas station

across the street . . . those are all areas where

Norteños frequent. And if a Sureño comes

into that area they’re going to – if they come

across Norteño gang members they’re going

to be looked upon as not being in the proper

area for that – for a Sureño gang member.

Given this uncontradicted evidence, the state court

unreasonably assumed that the shooter had to be an OSP

member.9 Guerin’s testimony establishes that all Norteño

gangs frequented the area near the 7-Eleven and that any one

of them would have viewed a man wearing the number 8 with

animosity. Even factoring in Guerin’s testimony that OSP

and another large Norteño gang, East Side Gilas, were

particularly active in the summer of 2001, the universe of

potential gunmen was still significantly broader than a single

Norteño “clique.” If the potential shooter could just as likely

have been a member of the East Side Gilas, another major

Norteño subgroup, let alone any one of the many other

9 The state court’s misunderstanding regarding the universe of potential

shooters is reflected elsewhere in its opinion. The court wrote: “An expert

testified that the neighborhood in which he had stranded himself was

claimed as turf by Outside Posse (OSP), a local clique of the Norteños

street gang.” The gang expert’s testimony establishes the area was

generally claimed as Norteño turf, not specifically OSP turf. The gang

expert testified that “[w]e have several cliques of Norteño gangs,”

including OSP, and that the area surrounding the 7-Eleven was

“predominantly a Norteño-controlled area.”
26 ZAPATA V. VASQUEZ

Norteño subgroups in Gilroy, then the mere fact of Zapata’s

OSP membership was less probative of his guilt.

Second, and for the same reason, the court’s second

assumption – that the similarities between Zapata’s face and

the police sketch meant that the shooter had to be an OSP

member who resembled Zapata – also constitutes an

unreasonable determination of the facts. See 28 U.S.C.

§ 2254(d)(2). Again, according to the prosecution’s own

expert witness, OSP was just one of many Norteño subgroups

whose members frequented the area near the 7-Eleven, so the

state court’s belief that the shooter could only have been an

OSP member resembling the sketch was unreasonable.10

Third, the court’s statement that the involvement of

Zapata’s white Toyota pickup truck in the shooting was never

seriously contested is also directly contradicted by the record. 

Defense counsel not only cross-examined the prosecution’s

witnesses on their vehicle identification testimony, but also

explicitly highlighted the conflicts and inconsistencies in that

testimony during his closing argument.

As Zapata’s attorney emphasized at trial, the state’s

witnesses disagreed on the make and the type of vehicle

involved in the shooting. Morton, who testified that he had

“be[en] in automotive all [his] life,” said the vehicle was a

 

10 Moreover, there was disagreement at trial about the degree to which

Zapata actually resembled the sketch. When asked to compare his sketch

against a contemporaneous photo of Zapata, the police sketch artist could

say only that there was “some likeness.” Puphal, whose description

formed the basis of the sketch, was never able to identify Zapata in a

photo lineup. And Echeverria, who initially said the sketch looked “just

like” Zapata, testified at trial that she had purposely overstated the degree

to which the sketch resembled Zapata.
ZAPATA V. VASQUEZ 27

Ford truck or an SUV with a topper. Puphal testified the

truck was a single cab white pickup; at trial, when shown a

photograph of Zapata’s truck, he said only that it “could be”

the one involved in the shooting. Although Davila testified

that the truck was a Toyota, it was only a month before trial,

and over three years after the murder, that he identified

Zapata’s truck as the one involved in the shooting. In sum,

the defense vigorously argued this point and created enough

uncertainty to give at least some jurors reason to doubt

whether the getaway car was Zapata’s white pickup.11 The

11 Defense counsel attacked the vehicle identification testimony in

closing summation, arguing:

Sergeant Davila gave us testimony that’s inconsistent

and irreconcilable with the testimony of Brian Puphal

and inconsistent and irreconcilable with the testimony

[of] Joe Morton. Sergeant Davila is the only witness

who comes into this courtroom and tells us he saw a

Toyota pickup truck. Is that because he recalls seeing

a Toyota pickup truck because he might have seen a

photo of it when he met with Detective Zen? Or did it

come up – or is it a recollection? Who knows where it

came from. And why is – you know, that’s just one

piece of the problem. You know, you’ve got Joe

Morton who tells you he’s been in automotive all his

life, he thinks it was a Ford, thinks it has a camper

shell. We’ve got Brian who just knows it was a white

truck, a four-by-four. And then here is the timing

problem. . . . [Davila] says he sees somebody driving

like a wild man and driving like a wild man I have in

quotes. That was a wild man that no one else saw

driving that night, that nobody else reports. He heard

a screeching noise. A noise that nobody else heard. No

one else reported. . . . Two people see a truck slowly

moving progressing down Leavesley and then down

Murray. Nobody heard the pealing [sic] of rubber, that

screeching noise [Davila] talked about. And you’ll
28 ZAPATA V. VASQUEZ

evidence about the truck was not only hotly disputed, but it

fell short of establishing the vehicle at the shooting was

Zapata’s. The state court’s contrary determination that the

involvement of Zapata’s truck was “not seriously contested”

misstated the record and was unreasonable as well. Taken

together, the foregoing three critical, but unfounded, factual

assumptions were unreasonable and seriously undermine the

state court’s prejudice assessment.

In addition, the state court emphasized that a “guilty

verdict was also strongly favored by the testimony and

statements of the three witnesses attacked as ‘the

informants’12

by the defense,” particularly the “directly

incriminat[ing]” testimony of Sarah Sanchez, who testified

that Zapata told her he “shot up” the 7-Eleven. In assessing

the strength of this testimony, however, the court entirely

recall [Davila] was in the gas station when he hears that

noise. He’s in the gas station when he hears the two

shots and shortly thereafter hears the screeching sound. 

You know, sounds that nobody heard. Joe Morton goes

out and he told us on the Murray Street side of the Shell

station in time to see what he thought was a white Ford

pickup truck with a camper driving away. No

screeching, no laying of rubber on the pavement, no

colliding with the median. You know, it’s – do I think

[Davila] came into this courtroom and lied to you?

Absolutely not. . . . What you know of this case, the

evidence that we have all seen and heard, was he

wrong? Absolutely. But the prosecution embraces his

testimony with the exception of the timing problem

because he’s the one person without a dog in this fight

that recalls having seen a Toyota pickup truck. You

know, if it doesn’t make sense you have to reject it.

12 Zapata’s counsel referred to Sarah Sanchez, Nancy Echeverria and

Victoria Lopez as “the informants” in his closing argument.
ZAPATA V. VASQUEZ 29

overlooked a serious inconsistency in Sanchez’s testimony

and her resulting questionable credibility. Cf. Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can

disagree with a state court’s credibility determination and,

when guided by AEDPA, conclude the decision was

unreasonable or that the factual premise was incorrect by

clear and convincing evidence.”). Sanchez testified that in

May or early June 2001, very shortly after the shooting,

Zapata approached her while she was dropping off an OSP

associate named Donald Reyes at the Ramirez ranch. She

testified that Zapata asked if she could “do him a favor,” and

drive his truck to Stockton or Manteca because “he had shot

up somebody at 7-Eleven.” Donald Reyes, who testified for

the defense, said he had never asked Sanchez for a ride and

was incarcerated from April to the middle of June 2001, a fact

to which the parties stipulated. Furthermore, as the state

court did note, Sanchez also admitted at trial that she

harbored ill will towards Zapata because, in November 2002,

he and a group of OSP associates attacked her new boyfriend,

presumably to send a message from her previous boyfriend,

an OSP member. She did not contact the police about what

Zapata purportedly told her until after that attack.

The testimony of Nancy Echeverria, Zapata’s exgirlfriend, was also subject to attack for bias. Echeverria,

who was dating Zapata at the time of the Trigueros murder,

testified at trial that she first suspected Zapata may have

committed the murder after seeing the police sketch shortly

afterward, but she called the police tip line only in December

2002, after Zapata had broken up with her and 18 months

after the shooting. She testified at trial that she exaggerated

the degree of resemblance between the police sketch and

Zapata and lied about when she last saw the truck because she

wanted to “burn” Zapata and his new girlfriend “in a big
30 ZAPATA V. VASQUEZ

way.” Furthermore, she admitted she had not been entirely

truthful in her pretrial conversations with Detective Zen about

Zapata’s involvement in the murder: “[N]ot everything Isaid

was true, so it’s kind of like, you know, I lied and I had to

face reality.”

Similarly, Victoria Lopez retreated at trial from her

pretrial statement that she “kind of th[ought] it was stupid

[Zapata]” who committed the murder because he began

driving a black Taurus after May 2001. She testified that she

continued to see Zapata drive the white pickup after May

2001 and that she could not remember the rest of her pretrial

statement. The prosecution attempted to explain the

inconsistencies by arguing Echeverria and Lopez had

received threats from OSP members prior to trial, but the fact

remained there were serious inconsistencies between their

pretrial statements and in-court testimony.

13

Considering these factors together, we conclude the

California Court of Appeal’s prejudice determination was

based on multiple misapprehensions of the record, and its

assessment of the strength of the evidence against Zapata was

therefore unreasonable. First, its conclusion that the universe

of perpetrators was limited to OSP members is contradicted

by the testimony of the prosecution’s own gang expert, who

testified that OSP was just one of several active Norteño

gangs in the area, and that members of any one of them

would have viewed a perceived Sureño with animosity. 

13 Specifically, the prosecution presented evidence that Echeverria was

afraid to testify because she had been intimidated by OSP members. 

Detective Zen testified Echeverria told him that she would lie if she was

forced to testify in court. Echeverria, however, said she was afraid to

testify because she had lied in her pretrial statements.
ZAPATA V. VASQUEZ 31

Second, its observation that the involvement of Zapata’s truck

in the shooting was never seriously contested is belied by the

record; the state’s witnesses could not agree on the type of

vehicle involved in the shooting. Finally, the “directly

incriminating” testimony of Sarah Sanchez was subject to

attack for both credibility and bias, and the statements made

by Echeverria and Lopez were also subject to viable

credibility challenges.

In addition to the considerations explicitly mentioned by

the state court, two additional foundations of the

prosecution’s case were weak at best. First, the prosecution

argued Zapata’s truck disappeared immediately following the

Trigueros murder. There was, however, contradictory

evidence about when the truck disappeared. In pretrial

statements, Echeverria said the truck was “gone the next day,

in the morning,” and Lopez observed that Zapata began

driving a black Taurus “right after” the murder and had

stashed his truck at the Stockton home of Rico Clarke. At

trial, however, Echeverria testified she saw Zapata driving the

truck in Gilroy the day after the murder, in the afternoon, and

Lopez testified she saw Zapata drive the truck “sometime

after” the Trigueros shooting.14 Clarke denied having kept

14 Specifically, when questioned about when she last saw the truck,

Lopez had the following exchange with the prosecutor:

Q: Now did you ever see that white pickup truck after

the shooting at the 7-Eleven on Leavesley in May

2001?

A: Yeah, I think he used to drive it afterwards.

Q: When?
32 ZAPATA V. VASQUEZ

the truck for Zapata, and Detective Zen testified that he did

not see the truck at Clarke’s house when he went to

investigate in late 2002. In December 2002, Zen found the

truck at an apartment complex in nearby Morgan Hill where

Priscilla Pena, Zapata’s new girlfriend, was living. In March

2003, Zen seized the truck from Pena’s sister’s house, also

located in Morgan Hill.

There was also conflicting evidence about why the truck

disappeared from Gilroy. Witnesses on both sides testified

that Zapata’s truck was a “piece of junk,” in bad condition,

and may have broken down. Multiple witnesses also testified

A: I – well, sometime after May I guess until he got a

black car.

Q: Okay. Do you recall telling Dan Zen that as soon as

it happened he didn’t drive his truck no more. Do you

remember telling Dan Zen that?

A: I remember it had broken down on the side of the

freeway. . . .

Q: You never saw the truck the day after, the month

after, six months after, a year after the 7-Eleven

shooting, did you?

A: What do you mean?

Q: You never saw the truck after the shooting?

A: After that had happened?

Q: After you read it in the paper, correct.

A: No, because he had driven it afterwards but it had

broken down. And after that – after that the car wasn’t

fixable . . . .
ZAPATA V. VASQUEZ 33

Zapata moved to Hollister sometime after the shooting and

that the truck had been relocated there.

Second, the prosecution emphasized the similarity

between Zapata’s likeness and the eyewitness descriptions of

the shooter. Puphal described the shooter to a police sketch

artist shortly after the shooting as a “stocky” Hispanic man

with a scraggly but “complete goatee” and beads around his

neck, and Zapata had a tattoo on his neck. At trial, however,

Puphal failed to positively identify Zapata in a photograph

shown at trial, nor was he able to identify Zapata in a pretrial

photographic lineup. Shortly after the shooting, in a police

statement, Puphal described the shooter as being 5'5",

15

whereas Joe Morton, who heard the shots and saw a man

fleeing the scene of the crime, testified he was sure the man

had been between 5'10" and 6' tall. When asked if there was

“[a]ny chance he was five seven,” Morton responded, “No.”

Furthermore, Echeverria told Detective Zen during a

pretrial interview that the sketch looked “just like” Zapata

when he was trying to grow a goatee. During crossexamination, however, she testified Zapata never had a goatee

like the one pictured in the sketch and was incapable of

growing one:

Q: And you told the Court at that time that

you told that lie because you didn’t like

[Zapata]. Is that the truth?

15 At trial, Puphal initially testified during direct examination that the

shooter was between 5'5" and 5'8", but when questioned on crossexamination, Puphal stated that the shooter was “approximately” 5'5".
34 ZAPATA V. VASQUEZ

A: That’s the truth. And when I had seen the

sketch I figured, you know, if Isay that he had

a goatee or tried to grow one it was going to

make it seem more like, you know, give –

well, basically, that he was – it was just going

to land on him that he did do it.

Q: Well, it would make him look like the guy

in the sketch.

A: Correct.

Similarly, witnesses for both the prosecution and defense

testified Zapata could not grow a goatee. Given Puphal’s

statement that the gunman “definitely” sported a goatee, this

testimony further undercuts the degree to which Zapata

matched the eyewitness description of the shooting.

In short, as the state court acknowledged, the

prosecution’s case was “hampered by weaknesses in the

identification evidence.” A careful reading of the record

reveals that the case was even weaker than the state court

believed it to be, sufficiently so that the court’s conclusion

that the jurywas not influenced by the prosecutor’s “serious,”

unchallenged misconduct was manifestly unreasonable. By

contrast, in Darden, the Supreme Court concluded an

improper prosecutorial argument was not prejudicial because

“[t]he weight of the evidence against petitioner was heavy;

the overwhelming eyewitness and circumstantial evidence to

support a finding of guilt on all charges reduced the

likelihood that the jury’s decision was influenced by

argument.” 477 U.S. at 182 (citation and internal quotation

marks omitted)). Unlike in that case, here, the likelihood the

jury’s decision was influenced by the prosecutor’s egregious
ZAPATA V. VASQUEZ 35

and inflammatory closing argument is heightened because the

evidence against Zapata was weak, and the eyewitness and

circumstantial evidence was far from overwhelming.

2. The prominence and timing of the comments

also point to prejudice.

The prosecutor’s inflammatory remarks were also

prominent in the context of the entire trial. The prosecutor

repeated the statements throughout the closing rebuttal, and

they were among the last words the jurors heard before they

were sent to deliberate. The presentation of improper

material at the end of trial “magnifie[s]” its prejudicial effect

because it is “freshest in the mind of the jury when [it]

retire[s] to deliberate.” Crotts v. Smith, 73 F.3d 861, 867 (9th

Cir. 1996) (internal citation and quotation marks omitted),

superseded by statute on other grounds as stated in Van Tran

v. Lindsey, 212 F.3d 1143 (9th Cir. 2000); see also Sanchez,

659 F.3d at 1261 (observing that improper prosecutorial

comment in a closing rebuttal was particularly problematic

because “it was the last argument the jury heard before going

to the jury room to deliberate,” thus “increas[ing] the risk that

the inflammatory statement would improperly influence the

jurors”).

3. The comments were not a reasonable inference

from the record.

That the prosecutor’s comments were not a reasonable

inference from the record also magnifies their prejudicial

impact. As the state court declared, they were “pure fiction.” 

Although the evidence showed Zapata was involved in

another incident in which OSP members used such epithets,

there was no evidence to even suggest such comments were
36 ZAPATA V. VASQUEZ

made here. Additionally, the failure of either defense counsel

or the court to question the prosecutor’s repeated, albeit

fictitious, version of the victim’s last minutes would have led

the jurors either to assume the statements were accurate or, at

least, that the rank speculation was permissible. This case

thus stands apart from others concluding that prosecutorial

misconduct was not prejudicial. See, e.g., Darden, 477 U.S.

at 182 (noting the prosecutor’s improper comment did not

“manipulate or misstate the evidence”).

4. The comments were not invited by defense

counsel.

Under the doctrine of “invited response,” “the reviewing

court must not only weigh the impact of the prosecutor’s

remarks, but must also take into account defense counsel’s

opening salvo.” United States v. Young, 470 U.S. 1, 12

(1985). Here, nothing in defense counsel’s closing argument

invited the inflammatory remarks. Cf. Darden, 477 U.S. at

182 (noting that “[m]uch of the objectionable content was

invited by or was responsive to the opening summation of the

defense”). This factor too counsels in favor of finding the

remarks prejudicial.

5. No specific limiting instruction was given.

Finally, although the jury was generally instructed that

“statements made by the attorneys during the trial are not

evidence,” the jury was never specifically instructed to

disregard the inflammatory statements made in the

prosecutor’s rebuttal. By contrast, cases that have held

prosecutorial misconduct nonprejudicial have pointed to the

use of a specific limiting instruction. See, e.g., Donnelly v.

DeChristoforo, 416 U.S. 637, 645 (1974) (noting the
ZAPATA V. VASQUEZ 37

prosecutor’s potentially improper remark was “followed by

specific disapproving instructions”); Cheney v. Washington,

614 F.3d 987, 997 (9th Cir. 2010) (holding the state court

reasonably determined the petitioner was not prejudiced by

improper closing argument when “counsel brought the

prosecutor’s impropriety to the court’s attention with only a

slight delay”).

Considering the weaknesses in the prosecution’s case and

the seriousness of the misconduct, we hold not only that

prejudice was established on the record, but also that the

California Court of Appeal unreasonably determined Zapata

was not prejudiced by his counsel’s failure to object to the

prosecutor’s egregious remarks.

CONCLUSION

Defense counsel’s failure to object to the prosecutor’s

inflammatory, fabricated and ethnically charged epithets,

delivered in the moments before the jury was sent to

deliberate Zapata’s case, constituted ineffective assistance of

counsel. The California Court of Appeal’s failure to so

conclude was based on unreasonable factual determinations

and was an unreasonable application of controlling Supreme

Court law. See 28 U.S.C. § 2254(d)(1)–(2). We thus

REVERSE the judgment and REMAND the case with

instructions to grant the petition for habeas corpus.