                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PAUL M. ZAPATA,                          No. 12-17503
           Petitioner-Appellant,
                                          D.C. No.
               v.                    3:10-cv-00176-TEH

RODOLFO VASQUEZ,
         Respondent-Appellee.             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 argument moments
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 Petitioner-
Appellant.




  *
    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 in December 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). Notwithstanding AEDPA’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 Norteño-
        controlled 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 ex-
girlfriend, 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 I said
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 cross-
examination, 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 cross-
examination, 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 I say 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 jury was 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.
