Zapata v. Vasquez, 788 F.3d 1106 (2015)

Facts

  • California charged Paul M. Zapata with the murder of Juan Trigueros, who was shot and killed around 2 a.m. in May 2001 in a 7–Eleven parking lot on Leavesley Road in Gilroy, California.
  • The shooting occurred in Norteños gang territory. Zapata was a Norteños member, associated with a clique known as Outside Posse (“OSP”).
  • Trigueros was a first-generation Mexican immigrant and was wearing a Los Angeles Lakers jersey with the number 8, which the prosecution linked to Sureños symbolism (a rival gang subset associated with the number 8).
  • The prosecution’s case relied heavily on witness testimony and gang evidence; there was no physical evidence directly connecting Zapata to the shooting.
  • The only eyewitness, Brian Puphal, described seeing a man at the pay phone and another man nearby raising his arms in anger and yelling at the person on the phone shortly before the shooting.
  • About 18 months after the murder, a caller (Echeverria) contacted a police tip line and told a detective she suspected Zapata was the shooter.
  • At trial, during closing argument, the prosecutor told jurors they could reasonably infer that the shooter yelled vulgar, ethnically charged epithets at Trigueros as he was shot.
  • No trial evidence supported that any ethnic slurs or vulgar statements were made; the prosecutor’s account was not based on any witness testimony.
  • Defense counsel did not object, did not request a curative instruction, and did not seek a mistrial based on the closing argument.
  • A jury convicted Zapata of first-degree murder and found gang and firearm enhancements true; he received two consecutive terms of 25 years to life.
  • After state appellate review failed, Zapata filed a federal habeas petition under 28 U.S.C. § 2254. The district court denied relief, and Zapata appealed.

Issues

  1. Whether Zapata’s stand-alone prosecutorial-misconduct claim based on the closing argument was barred on review.
  2. Whether trial counsel provided ineffective assistance under Strickland v. Washington by failing to object to the prosecutor’s fabricated, inflammatory closing argument.
  3. Whether the state court’s rejection of the ineffective-assistance claim was an unreasonable application of Strickland (and/or an unreasonable determination of the facts) under AEDPA, 28 U.S.C. § 2254(d).

Decision

  • The Ninth Circuit held that the stand-alone prosecutorial-misconduct claim could not be reviewed.
  • The court held counsel performed deficiently by failing to object to the prosecutor’s closing argument that supplied inflammatory “facts” not in evidence, including ethnically charged epithets.
  • The court held Zapata was prejudiced because the case was not overwhelming and the prosecutor’s invented narrative invited the jury to decide the case on improper emotional and ethnic grounds.
  • Applying AEDPA, the court concluded the state court’s denial of the Strickland claim was unreasonable in light of the record and the severity of the unsupported argument.
  • The Ninth Circuit reversed the district court and remanded with instructions to grant the habeas petition.
  • Prosecutors may argue reasonable inferences from the evidence, but they may not invent facts outside the record, particularly where the invention is inflammatory and risks bias.
  • Under Strickland, counsel performs deficiently by failing to object to plainly improper closing argument with no reasonable strategic explanation.
  • Strickland prejudice is shown when there is a reasonable probability that, absent counsel’s error, the result would have been different; improper summation can satisfy this standard when the proof is not overwhelming and the argument is likely to influence deliberations.
  • In federal habeas review under AEDPA, relief may be granted when a state court’s adjudication unreasonably applies clearly established Supreme Court law, including Strickland, or rests on an unreasonable view of the record.
  • Even if a direct prosecutorial-misconduct claim is not reviewable, the underlying misconduct may still be considered in evaluating counsel’s failure to object as an ineffective-assistance claim.

Conclusion

The Ninth Circuit ordered habeas relief because the prosecutor’s closing argument invited the jury to convict on a fabricated, ethnically charged narrative not supported by evidence, and defense counsel’s failure to object fell below constitutional standards and created a reasonable probability of a different outcome; the state court’s contrary decision was unreasonable under AEDPA, so the district court’s denial of § 2254 relief was reversed and the case remanded with instructions to grant the writ.