## 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.

## Legal Principles

- 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.


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