Simental, Eloy v. Matrisciano, Ronald

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3054

ELOY SIMENTAL,

Petitioner-Appellant,

v.

RONALD MATRISCIANO,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 4872—Robert W. Gettleman, Judge.

____________

ARGUED FEBRUARY 18, 2004—DECIDED APRIL 5, 2004

____________

Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.

EVANS, Circuit Judge. This habeas appeal stems from a

dispute between two street gangs, the Latin Kings and the

Maniac Latin Disciples (MLD), in Aurora, Illinois, over a

dozen years ago. After some Latin Kings “disrespected”

MLD’s leader, the MLD sought revenge, which meant

killing Cesar Montalvo, a high-ranking Latin King. On the

evening of April 29, 1991, Allen Buckner, MLD’s third-in-

command, shot and killed Montalvo while he was standing

outside a house in Aurora. Eloy Simental, the petitioner in

2 No. 02-3054

this case and a member of the MLD, accompanied Buckner

and threw a pipe bomb into the house. It broke a window

and exploded. After the murder the police focused on the

MLD, and the State eventually entered into a cooperation

agreement with Daniel Contreras, the MLD’s number two

ranking official. In return for the dismissal of all charges

pending against him, Contreras agreed to testify against

Buckner and Simental (who were tried separately). Based

largely on Contreras’s testimony, a jury found Simental

guilty of first-degree murder. He was sentenced to a prison

term of 60 years. After an unsuccessful direct appeal and

postconviction petition, Simental filed a petition for habeas

relief, arguing that he was denied a fair trial when the

State suppressed information he could have used to further

impeach Contreras, in violation of Brady v. Maryland, 373

U.S. 83 (1963). The district court denied Simental’s petition,

2002 WL 1424559 (N.D. Ill. July 1, 2002), and he appeals.

Contreras was the government’s star witness. At the time

of the murder, according to Contreras, the MLD was a gang

of about 50 members that engaged in “organized crime,”

including the trafficking of drugs, guns, and bombs, as well

as “hurting” members of other gangs. Contreras had been

a member for about 3 years. Todd Ochsenschlager headed

the gang. On the evening Montalvo was killed, members of

the gang were partying at Contreras’s home, which served

as the MLD’s headquarters.

That evening, Ochsenschlager briefly left the party. When

he returned, he said that he had run into members of the

Latin Kings, who had “disrespected” him. He then told his

members that “he wanted something done.” “Know[ing]

what [w]as expected” of them, Buckner and Simental

volunteered to avenge the incident. Simental and Buckner

then changed into black clothes, including trench coats,

hats, and ski masks (they already were wearing black

pants). Contreras gave Simental the trench coat and ski

mask, but Buckner had his own clothes, “always prepared

No. 02-3054 3

if anything happened.” (One apparently never knows when

a trench coat and ski mask are going to come in handy!)

Contreras then gave Buckner a sawed-off shotgun and

Simental a pipe bomb.

Contreras asked Patty Velasquez, his sometimes girl-

friend, if he could use her car. She agreed but insisted on

riding along. At about 8:45 p.m., Contreras, Velasquez,

Buckner, and Simental left the party. Contreras drove and

Velasquez sat in the passenger seat. The other two sat in

the back. They drove to another part of town, where they

knew the Latin Kings were hanging out, and about 5 min-

utes later parked the car. They left the motor running but

turned the headlights off. Buckner and Simental then got

out of the car and ran down the street. Contreras testified

that he remained in the car because he was “already above

hurting people,” apparently suggesting that as a higher-up

in the organization he no longer got his hands dirty.

Velasquez asked Contreras what was going on, and he said

that Buckner and Simental were collecting money that he

was owed. She told him that she had seen Buckner with a

gun (even though they tried to conceal it from her so she

wouldn’t know what was happening) and that she didn’t

like guns in her car.

Contreras then heard one gunshot, an explosion, and then

three more gunshots. Velasquez asked Contreras what the

noise was, and he lied and said he didn’t know. Buckner,

carrying the shotgun, and Simental then came running

back to the car, got into the backseat, and Contreras drove

off. On the way to Contreras’s home, Buckner told

Contreras that he thought he killed Montalvo and a second

person.

When the group returned to the party, Contreras took the

gun and clothes. The party then broke up and Contreras hid

the gun. The next day, Buckner went to Contreras’s home

and showed him newspaper clippings about the shooting

and bragged that he was right, that he did kill Montalvo.

4 No. 02-3054

Buckner also told Contreras that the police questioned him

about the murder but that he was released because of lack

of evidence. That same day, Simental also stopped by

Contreras’s house. According to Contreras, Simental said he

was scared that the police would find out what had hap-

pened. Simental said he threw the pipe bomb through the

window. Contreras told Simental to remain silent.

At trial, Contreras stated that he was testifying pursuant

to a deal with the State. In return for his testimony, the

government dismissed all pending charges against him.

Contreras also had an agreement with federal prosecutors,

for which the government dismissed charges against him

relating to the illegal possession of explosives. In return, he

helped Bureau of Alcohol, Tobacco and Firearms agents

recover the weapon that killed Montalvo, as well as several

pipe bombs. Contreras also testified that the Aurora police

department and the State’s Attorney’s office paid him $800

cash and helped him relocate to Texas. Contreras admitted,

however, that about a month and a half before trial, he

stopped contacting Aurora officials in violation of his

agreement. As a result, the State revoked the agreement

and indicted him for his role in Montalvo’s murder. Eventu-

ally Contreras was arrested and extradited back to Illinois.

A new plea agreement was reached which provided, in

addition to the terms of the first agreement, that Contreras

would not be charged in connection with the shooting of

Montalvo.

Contreras, at trial, was asked if he understood the State’s

obligations with respect to the deal. He responded, “To

dismiss all—all charges that have been brought up on me.”

Contreras initially indicated that the charges pending

included unlawful use of a weapon, aggravated battery, mob

action, attempted robbery, criminal damage to property,

and the Montalvo murder. After acknowledging that this

was a complete list of pending charges, Simental’s attorney

“reminded” Contreras that he had additional charges of

No. 02-3054 5

unlawful use of a weapon by a felon and unlawful posses-

sion of a weapon by a felon pending against him as well.1

Contreras also admitted that he initially lied to the police

when questioned about the incident. It was only after he

was arrested on unrelated charges that Contreras, after

speaking with his attorney, contacted the State’s Attorney’s

office and offered to tell them what happened to Montalvo

(he also self-servingly testified that he wanted to tell “the

people . . . what’s going on out in the streets”). Finally,

Contreras admitted his history in the MLD and that he was

involved in all of the gang’s activities. He testified that he

had bought the sawed-off shotgun used to kill Montalvo.

Contreras also admitted that he had a previous felony

conviction for possession of marijuana.

After Contreras testified, Velasquez took the stand and

corroborated Contreras’s version of the events on the night

of the murder. She also testified that she met Contreras

in 1986 and that they dated on and off since that time. In

1988 she gave birth to a stillborn child fathered by

Contreras. At trial, she was pregnant with Contreras’s

child, but she testified that she no longer felt any affection

for him.

Simental testified to a different version of events, stating

that he had nothing at all to do with Montalvo’s murder. In

fact, he denied even being a member of the MLD. According

to Simental, on the evening of the murder he had gone to a

1

Prior to trial, the State brought a motion in limine seeking

to prohibit Simental from inquiring into investigations pending

against Contreras or into any matter outside the terms of

Contreras’s written agreement with the State. The trial court

ruled that Simental could go into the names of the charges that

were part of Contreras’s deal but could not go into any details

about those charges. The trial court also ruled that Simental could

not ask about pending investigations not contained in the written

agreement.

6 No. 02-3054

local Dairy Queen at about 7:30 p.m. with some friends. At

8:00 he went to the house of another friend and stayed for

about 25 minutes. Simental testified that he returned home

around 8:45 and talked on the phone with Imelda Ramirez

from 9:00 to 9:30. He and his sister then drove a friend of

his sister’s home at about 10:00. He denied being anywhere

near the area where Montalvo was murdered. Several alibi

witnesses corroborated Simental’s testimony.

Although not implicated as the shooter, the jury found

Simental guilty of first-degree murder on an accountabil-

ity theory. Prior to sentencing, he filed several post-trial

motions. Relevant here, he argued that the State failed to

disclose an agreement reached with Contreras regarding an

incident where he brutally beat a man by the name of

Rafael Martinez, leaving him comatose, which had occurred

about 2 months prior to Montalvo’s murder and

was unrelated. The trial court found that there had been a

conversation between Contreras and Detective Greg

Anderson of the Aurora police department. As a result of

the conversation, the court held, Contreras believed that his

deal with the State encompassed the Martinez beating. The

trial court also found that when the defense was given the

details of Contreras’s agreement, the fact that there was a

deal regarding the Martinez beating was not included. The

trial court held, however, that a new trial was not neces-

sary. Specifically, the court concluded that the State

demonstrated that the Martinez beating deal was not

something the prosecutor could have learned about before

trial. Moreover, disclosing this additional matter, in the

context of all the other deals which were disclosed, was

“merely cumulative” and could not have affected the

outcome of the trial.

On direct appeal, Simental argued that his federal con-

stitutional rights under Brady were violated. The Illinois

Appellate Court affirmed the conviction, however, finding

that no Brady violation occurred because “the agreement

No. 02-3054 7

made with Contreras concerning the additional beating

incident was not known to the prosecutor.” The court also

noted that “one additional agreement would have been of no

importance to the ultimate outcome.” Simental filed a

petition for leave to appeal in the Illinois Supreme Court,

which the court denied. Thereafter, Simental filed a post-

conviction petition in the state trial court, which was also

denied. The appellate court, applying res judicata, affirmed.

Again, the Illinois Supreme Court denied leave to appeal.

This petition for habeas relief followed.

Before proceeding to his Brady claim, Simental argues

that the district court “deprived [him] of a meaningful

review” when it denied his petition without reviewing the

state trial transcript, relying instead on the facts as found

in the Illinois Appellate Court rulings. We disagree. While

the review of a state court transcript is occasionally ne-

cessary in habeas cases, it is certainly not required and is,

in fact, quite rare. Indeed, as Rule 5 of the rules governing

§ 2254 cases makes clear, the decision of whether tran-

scripts are necessary is left to the sound discretion of the

district court. The rule provides that the answer to a habeas

petition must indicate what transcripts are available and

what proceedings have been recorded but not transcribed.

In addition, the State must attach to its answer any

portions of the transcript it deems relevant (here, the State

indicated that the trial transcript was available but was not

being submitted because it was “unnecessary to a just

resolution of this action”). Once this is done, the court, “on

its own motion or upon request of the petitioner may order

that further portions of the existing transcripts be fur-

nished or that certain portions of the non-transcribed

proceedings be transcribed and furnished.” Rules Governing

Section 2254 Cases in the U.S. Dist. Cts., 28 U.S.C. pt. VI,

ch. 153, Rule 5 (emphasis added). No request was made

here, and considering the loose standard to which we have

just referred, the district court certainly did not abuse its

8 No. 02-3054

discretion in resolving this case without reviewing the full

state transcript. The material facts of this case as they

relate to the issue presented were clear, and the district

court was able to make an informed decision without

plowing through the full state transcript. Finally, we

emphasize that on habeas review, except in limited circum-

stances, the district court does not make independent

factual determinations. 28 U.S.C. § 2254(e). See United

States ex rel. Green v. Greer, 667 F.2d 585, 586 (7th Cir.

1981) (an examination of a record is not required if the

petitioner “fails to identify any incompleteness or inaccura-

cies in the facts before the district court”). On collateral

review, factual determinations are the work of the state, not

federal, courts.

That leads us to the heart of Simental’s claim for relief,

that the Illinois Appellate Court’s opinion regarding his

Brady claim was contrary to or involved an unreasonable

application of established federal law. That court deter-

mined that the prosecution’s nondisclosure of an “agree-

ment” regarding Contreras’s beating of Martinez was not a

Brady violation for two reasons. First, the court found that

no such “agreement” was known to the prosecution because

“although Contreras was left with the impression that he

had a deal regarding the beating incident, the detective who

spoke with him may not have intended to offer such a deal.”

Second (and we think more importantly), the court deter-

mined that such an agreement was not material. Because

the prosecution disclosed a number of other agreements the

State had with Contreras, including that it agreed to drop

“murder and bombing [charges] involved in the present

case,” the court concluded, disclosure of the Martinez

agreement would have provided little additional impeach-

ment benefit.

Under the Antiterrorism and Effective Death Penalty Act

(AEDPA), a federal court’s power to upset a state court’s

disposition of a criminal case is limited. A federal court may

No. 02-3054 9

grant a habeas petition only if the state court’s adjudication

“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,” 28 U.S.C. § 2254(d)(1), or “was based on an unrea-

sonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2).

Applying these standards, the district court denied

Simental’s petition for habeas relief, a decision we review

de novo.

In Brady, the Supreme Court held that “the suppression

by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” 373 U.S. at 87. This

rule includes evidence useful to the defense in impeaching

government witnesses, even if the evidence itself is not

inherently exculpatory. Giglio v. United States, 405 U.S.

150, 153-54 (1972). In Strickler v. Greene, 527 U.S. 263,

281-82 (1999), the Court outlined three components of a

Brady claim: “The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it

is impeaching; that evidence must have been suppressed by

the State, either willfully or inadvertently; and prejudice

must have ensued.” The State does not argue that the

evidence was favorable to Simental but does dispute that it

was suppressed and material. We address each in turn.

Initially, we agree with the district court that the state

court correctly stated the law with regard to whether the

prosecution suppressed evidence. That court cited our

decision in United States v. Young, 20 F.3d 758 (7th Cir.

1994), where we held “the prosecution’s obligation . . . to

disclose information [under Brady and Giglio] is limited to

information known to the prosecution.” The appellate court,

again quoting our decision in Young also noted that the

prosecutor’s office could not get around Brady by “keeping

itself in ignorance.”

10 No. 02-3054

Nor was the Appellate Court of Illinois’ application of

the facts of this case objectively unreasonable. Here, as

the court noted, while Contreras might have been left with

the impression that there was an agreement involving

Martinez’s beating, it was unclear whether the State

actually intended to offer such a deal, and there is no

evidence to imply that Detective Anderson knew what

impression Contreras was left with. Contrary to Simental’s

argument, there is no evidence that Anderson “clearly

indicated” to Contreras that he would receive immunity

for beating Martinez; the most that can be said is that

he discussed the “possibility” with him. Furthermore, as the

appellate court noted, the State “diligently and meticu-

lously” detailed its agreement with Contreras to both

defense counsel and before the jury. It was a reasonable

inference, as the appellate court concluded, that if the State

had knowledge that Contreres believed the Martinez

beating was covered, it certainly would have shared that

information as well. Considering these facts, we will not

disturb the state court’s reasonable conclusion that the

State did not suppress evidence. Cf. Banks v. Dretke, 124 S.

Ct. 1256 (2004) (state suppressed evidence in a capital

murder case where it did not disclose that one of its wit-

nesses was a paid police informant and another witness’s

trial testimony was intensively coached by prosecutors and

law enforcement).

We next turn to whether the information regarding the

Martinez beating was material. Simental argues that had

the jury known that Contreras thought his deal with the

State encompassed any charges stemming from the Marti-

nez beating, there is a reasonable probability it would not

have credited his testimony and come to a different verdict.

The touchstone on materiality is Kyles v. Whitley, 514

U.S. 419 (1995). Kyles instructed that the materiality

standard for Brady claims is met when “the favorable evi-

dence could reasonably be taken to put the whole case in

No. 02-3054 11

such a different light as to undermine confidence in the

verdict.” 514 U.S. at 435. Simental, in short, must show a

“reasonable probability of a different result.” Kyles, 514 U.S.

at 434 (internal citation omitted).

Here, the Appellate Court of Illinois concluded that the

evidence was not material. It wrote:

[T]he effect of disclosing the additional plea agreement

to the jury would have been merely cumulative. Given

the number of charges against Contreras which were

being dismissed as a result of his plea agreement,

in particular the murder and bombing involved in the

present case, and Contreras’ admitted involvement in

a variety of serious criminal activities, we determine

that the disclose of this one additional agreement would

have been of no importance to the ultimate outcome.

This conclusion is not even close to being objectively un-

reasonable. At trial, Contreras was heavily impeached. He

testified that he was the second-highest member of the

MLD and that the gang was involved in trafficking drugs,

guns, and bombs and often “hurt[ ]” members of other

gangs. He stated, moreover, that his home was used as the

gang’s headquarters and that he took part in all of the

gang’s activities. Contreras further admitted that he had a

prior conviction for possession of marijuana, that he pro-

vided the sawed-off shotgun and pipe bomb used in

Montalvo’s murder, and that he drove the getaway car for

Buckner and Simental. Contreras also testified that he lied

to both Velasquez and the police about the murder. With

respect to his agreement with the government, Contreras

told the jury that he made the deal only after the police

arrested him on other charges, gave him $800, and prom-

ised to relocate him. He further admitted that he violated

the terms of the first deal and had to broker another

agreement. Finally, Contreras stated that in return for his

testimony, the State agreed to drop any charges against

12 No. 02-3054

him based on the Montalvo murder, his unlawful use of

a weapon charge, his aggravated battery charge, his mob

action charge, his attempted robbery charge, his criminal

damage to property charge, his unlawful use of a weapon by

a felon charge, and also his unlawful possession of a weapon

by a felon charge. While true, as Simental argues, that

some of these offenses are not as serious as the Martinez

beating, the evidence at trial overwhelmingly established

that Contreras was no saint. The jury was fully aware of his

role in the gang (including that he was involved in a

bombing and murder), his prior criminal history, and the

benefits to him testifying. In other words, the jury knew

that Contreras had tons of warts; another one or two would

have made no difference. Considering all this, it was

reasonable for the state appellate court to conclude that the

jury’s assessment of Contreras’s credibility would not have

changed if it also knew about the Martinez beating.

Finally, Simental argues that the district court erred

in finding that the State did not violate the standards of

Napue v. Illinois, 360 U.S. 264 (1959), by failing to correct

allegedly false testimony made by Contreras. In Napue, the

Court held that “a conviction obtained through use of false

evidence, known to be such by representatives of the State,

must fall under the Fourteenth Amendment.” Id. at 269

(citations omitted). In order to receive a new trial on the

basis of the government’s use of allegedly perjured tes-

timony, Simental must establish that: (1) the prosecution’s

case included perjured testimony; (2) the prosecution knew,

or should have known, of the perjury; and (3) there is a

likelihood that the false testimony affected the judgment of

the jury. United States v. Saadeh, 61 F.3d 510, 523 (7th Cir.

1995) (internal citations omitted). However, “mere inconsis-

tencies in testimony by government witnesses do not

establish the government’s knowing use of false testimony.”

Id. Rather, “the alleged perjured testimony must bear a

direct relationship to the defendant’s guilt or innocence.” Id.

No. 02-3054 13

Finally, when a defendant alleges that the prosecution used

perjured testimony, we must inquire into whether the

defendant had adequate opportunity to expose the alleged

perjury on cross-examination.

Simental argues that, considering the Martinez beating,

as well as an incident occurring shortly after the Montalvo

murder in which he struck Karol Wierzbicki in the face and

broke his car window, it is clear that Contreras lied when

he testified that he was “above” hurting people. However,

considering the above standards, we agree with the district

court that Simental is not entitled to a new trial. To begin,

the Martinez beating occurred 2 months prior to Contreras’s

testimony. Such timing meant it was theoretically possible

that Contreras was telling the truth. Defense counsel,

moreover, had ample opportunity to impeach with the fact

that he had an aggravated battery charge, which Contreras

admitted to the jury. Finally, considering the laundry list of

bad acts attributable to Contreras that was before the jury,

Simental failed to establish a “reasonable likelihood that

the false testimony could have affected the judgment of the

jury.” United States v. Agurs, 427 U.S. 97, 103 (1976).

Finally, the appellate court’s decision that the trial

court did not wrongly grant the State’s motion in limine

prohibiting Simental from inquiring into the details of

the Martinez beating was reasonable. We agree with the

district court that this is simply a recast of his Brady claim,

and considering Simental’s lengthy opportunity to cross-

examine Contreras, his Sixth Amendment right to confron-

tation was not violated. Delaware v. Van Arsdall, 475 U.S.

673, 678 (1986) (“[T]rial judges retain wide latitude insofar

as the Confrontation Clause is concerned to impose reason-

able limits on such cross-examination . . . .”).

The judgment of the district court is AFFIRMED.

14 No. 02-3054

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-5-04