Simental v. Matrisciano, 02-3054.

• Citation: 363 F.3d 607
• Decision Date: 05 April 2004
• Docket Number: No. 02-3054.,02-3054.
• Parties: Eloy SIMENTAL, Petitioner-Appellant, v. Ronald MATRISCIANO, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

363 F.3d 607

Eloy SIMENTAL, Petitioner-Appellant, v. Ronald MATRISCIANO, Respondent-Appellee.

No. 02-3054.

United States Court of Appeals, Seventh Circuit.

Argued February 18, 2004.

Decided April 5, 2004.

Rehearing and Rehearing En Banc Denied May 13, 2004.^*

Jared M. Wayne (argued), Shefsky & Froelich, Chicago, IL, for Petitioner-Appellant.

Russell Kenneth Benton (argued), Office of the Attorney General, Criminal Appeals

Division, Chicago, IL, for Respondent-Appellee.

Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.

TERENCE T. 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 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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 minutes 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. 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 happened. 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. Eventually 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 unlawful use of a weapon by a felon and unlawful possession 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 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 accountability 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 necessary. Specifically, the court concluded that the State demonstrated that the Martinez...