Paul Zapata v. Rodolfo Vasquez, 2015 U.S. App. LEXIS 9587

Background

Paul Zapata, an OSP (Outside Posse) Norteño gang member, was convicted in 2004 of first-degree murder for the 2001 shooting death of Juan Trigueros; sentenced to consecutive 25-to-life terms and gang/firearm enhancements.
Key evidence: one eyewitness (Puphal) saw a shooter but could not make a definitive ID; other witnesses gave conflicting descriptions of the vehicle and shooter; several witnesses implicated Zapata but had credibility issues and inconsistent pretrial statements.
During closing rebuttal, the prosecutor fabricated a graphic account of the victim’s last words, inserting repeated ethnic slurs (“scrap,” “wetback”) and urging juror sympathy; there was no evidentiary basis for these statements.
Trial counsel did not object to the prosecutor’s inflammatory, fabricated remarks or request a curative instruction; the jury convicted after ~3 hours of deliberation.
On direct appeal the California Court of Appeal labeled the prosecutor’s argument “serious misconduct” but found the prosecutorial-error claim procedurally barred because defense counsel failed to object; the state court also declined to find counsel ineffective.
The Ninth Circuit, applying AEDPA deference, held the state court unreasonably applied Strickland and reversed: counsel’s failure to object was deficient and prejudicial, warranting grant of habeas relief and remand with instructions to grant the petition.

Issues

Issue	Plaintiff's Argument (Zapata)	Defendant's Argument (State)	Held
Whether prosecutorial misconduct claim can be reviewed federally	Prosecutor’s fabricated, ethnic‑slur rebuttal was misconduct	State court invoked procedural default because counsel did not object	Procedurally defaulted; federal court may not reach the direct misconduct claim but may consider ineffective‑assistance claim based on failure to object
Whether counsel was constitutionally ineffective for failing to object	Failure to object to egregious, fabricated, inflammatory rebuttal was deficient performance	Counsel may have had tactical reasons; failure to object not necessarily ineffective	Court held performance was deficient: no plausible strategic reason on this record to tolerate the rebuttal, especially given timing (rebuttal)
Whether deficient performance was prejudicial under Strickland/AEDPA	Unobjected misconduct substantially affected outcome given weak ID evidence, prominence/timing of remarks, lack of curative instruction	State court reasonably concluded other strong evidence made misconduct non‑prejudicial	Court found state court’s prejudice analysis unreasonable: evidence was weak, comments were prominent, not invited, and likely affected jury; prejudice established
Standard of review under AEDPA for Strickland claim	Petitioner: state court unreasonably applied clearly established law	State: AEDPA requires deference; state court’s conclusion reasonable	Ninth Circuit: AEDPA deference acknowledged but state court unreasonably applied Strickland; grant habeas relief

Key Cases Cited

Darden v. Wainwright, 477 U.S. 168 (improper, inflammatory prosecutorial argument may violate due process when it so infects trial with unfairness)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance + prejudice)
Harrington v. Richter, 562 U.S. 86 (AEDPA review of state court Strickland application; "pivotal question" and deference limits)
Donnelly v. DeChristoforo, 416 U.S. 637 (prosecutorial argument limits; context and curative instructions relevant to due process)
Wiggins v. Smith, 539 U.S. 510 (courts may not indulge post hoc rationalizations for counsel’s decisions)
Yarborough v. Gentry, 540 U.S. 1 (deference and double‑deference principles in ineffective‑assistance review)
Drayden v. White, 232 F.3d 704 (9th Cir.) (prosecutor ‘‘voice of the victim’’ misconduct analysis)
Miller‑El v. Cockrell, 537 U.S. 322 (federal court may overturn state credibility findings under AEDPA when unreasonable)
Berger v. United States, 295 U.S. 78 (prosecutor must not strike foul blows; role limits in argument)