Olvera v. Gomez
| Decision Date | 22 June 2021 |
| Docket Number | No. 18-3435,18-3435 |
| Citation | 2 F.4th 659 |
| Parties | Anthony C. OLVERA, Petitioner-Appellant, v. David GOMEZ, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ruth F. Masters, Attorney, Masters Law, Oak Park, IL, for Petitioner - Appellant.
Michael M. Glick, Katherine M. Doersch, Attorneys, Office of the Attorney General, Chicago, IL, for Respondent - Appellee.
Before Ripple, Kanne, and Rovner, Circuit Judges.
Petitioner Anthony Olvera was the driver in a gang-related, drive-by shooting that resulted in the death of an innocent bystander. An Illinois jury found Mr. Olvera guilty of first-degree murder on the theory that he was accountable for the shooter's conduct. Mr. Olvera now seeks postconviction review, claiming that his trial counsel provided ineffective assistance by conducting an inadequate pretrial investigation. The state courts denied Mr. Olvera's petition. He then filed this petition for habeas corpus under 28 U.S.C. § 2254. The district court denied relief. We now affirm the district court's judgment.
Mr. Olvera's conviction stems from the January 8, 2000, shooting death of Stephen Stropes, the victim of a gang-related drive-by shooting in East Moline, Illinois. It is undisputed that Mr. Olvera's codefendant, Kristian Delgado, fired the shot that killed Stropes. It is also undisputed that Mr. Olvera was the driver of the vehicle and did not fire any shots that evening. Delgado pleaded guilty to murder, and the State prosecuted Mr. Olvera on the theory that he was accountable for Delgado's actions that killed Stropes.
The tragic events of January 8 started with a rather trivial argument. Mr. Olvera's girlfriend, Guadalupe Raya, was at a party where she got into an argument with members of the Latin Kings gang. She accused them of using her camera to take photos of themselves flashing gang signs. The Latin Kings are a rival of the Bishops gang of which Mr. Olvera and Delgado were members. Upset over the camera incident, Raya called Mr. Olvera and asked him to pick her up from the party. Mr. Olvera drove over with Delgado in the passenger seat. As they approached the house where Raya was waiting, they passed the group of Latin Kings, who also had left the party and were standing on a street corner. Delgado fired one shot out of the car window on the first pass; then he and Mr. Olvera picked up Raya, turned around, sped off in the direction of the Latin Kings, and fired several more shots at the Latin Kings on the second pass. It was during the second pass that a bullet struck Stropes in the head; he was later pronounced dead.
The State's theory at trial was that Mr. Olvera was accountable for Delgado's firing at the Latin Kings on the second pass and killing Stropes.1 The State called Raya as a witness. She testified that she was at a party, got into an argument with Latin King gang members, and called Mr. Olvera at his friend Daniel Mendoza's house to come and pick her up. As she waited outside for Mr. Olvera, she saw the Latin King members and then heard a loud noise. Immediately after hearing the loud noise, Mr. Olvera and Delgado pulled up in Mr. Olvera's four-door Buick sedan. Raya testified that Mr. Olvera told her to get in the car and duck. As she hid on the floor of the Buick's backseat, she heard several loud noises and smelled smoke. Raya testified that shortly after the shooting, Mr. Olvera sold the Buick sedan to an out-of-town acquaintance. She also testified that she never saw a gun and that she never heard Mr. Olvera tell Delgado to shoot at the Latin Kings.
Raya's friend, Alma Mendoza, who had hosted the party on the evening of the shooting, also testified. Her testimony corroborated Raya's story about her getting into an argument with the Latin Kings. Alma Mendoza also identified the Latin King members at the party as Michael Olvera,2 Johnny Rigsby, Gabino Gutierrez, Leo Reyes, and Jose Perez. Alma Mendoza told the jury that she did not want gang-related problems at her party, so she asked Raya and the Latin Kings to leave. She also testified that she heard something that sounded like "three fireworks" after Raya and the group of Latin Kings left the party.3
Tara Ramos, another partygoer, testified that she saw Raya get into a car after leaving the party. The driver of that car, Ramos testified, bent over and appeared to grab something from under his seat. She said that the driver yelled for Raya to get quickly into the car, which then sped down the street. She then heard gunshots.
Four of the Latin King members at whom Delgado fired—Reyes, Rigsby, Michael Olvera, and Gutierrez—also testified. The fifth member, Perez, was out of the state at the time of Mr. Olvera's trial.
Gutierrez testified that he and the four other Latin Kings left the party and were standing on the corner of 15th Avenue and 12th Street. A car pulled around the corner and stopped next to them. The passenger then stuck a gun out the window. As the Latin King members fled, they heard a gunshot. Gutierrez, Perez, and Reyes ended up on 18th Avenue. There, Gutierrez saw the car speeding closer again. On this second pass, he testified that he saw the front-seat passenger lean out the window before firing two or three more shots. Reyes testified along the same lines as Gutierrez. Reyes added that he heard someone in the car yell "King blink," which is a disrespectful term to members of the Latin Kings.4
Rigsby testified that although Perez, Reyes, and Gutierrez fled after seeing the gun on the car's first pass, he and Michael Olvera remained. He also testified to hearing a single gunshot followed by three more a short time later. Michael Olvera testified along the same lines as Rigsby.
David Routien, a local pastor and disinterested witness, testified that he heard three gunshots as he was preparing his evening sermon. When he looked out his window, he saw three young Hispanic men running down 18th Avenue.
Lucille Starkey, another disinterested witness, testified that as she was driving home from work, a four-door sedan pulled in front of her car. Both the sedan and her car turned onto 18th Avenue. She testified that she saw Stropes standing by a tree, saw someone else run by him, then heard gunshots and saw Stropes collapse. The sedan in front of her sped away right after the gunshots. Starkey later identified Mr. Olvera's Buick as the car she saw.
Two witnesses testified that Mr. Olvera told Delgado to shoot at the Latin Kings. The first was Jolene Montalvo, who was dating Mr. Olvera's friend, Robert Espinoza. Montalvo initially testified in the grand jury proceedings. During her trial testimony, Montalvo claimed not to remember events to which she had testified during the grand jury proceeding. The prosecutor therefore used Montalvo's grand jury transcripts to refresh her recollection throughout her trial testimony. Ultimately, she testified that four days after the shooting, she overheard Mr. Olvera tell Espinoza that the Latin Kings rushed the car and that he told Delgado to shoot in the air to scare them away. She also testified that Mr. Olvera said the second shooting happened when he thought the Latin Kings were going to shoot at the car.
The other witness was Darrin Rhodes, an inmate housed on the same cellblock as Mr. Olvera during Mr. Olvera's pretrial custody. Rhodes testified that he spoke with Mr. Olvera about his case several times and Mr. Olvera said he instructed Delgado to shoot at the Latin Kings. Mr. Olvera also told Rhodes that after the shooting, he and Delgado scratched the inside of the gun barrel to prevent forensic tracing.
Mr. Olvera's friend, Daniel Mendoza, to whose house Delgado and Mr. Olvera went following the shooting, also testified at the trial. Police arrested Delgado at Mendoza's house after the shooting and recovered evidence from the residence. While arresting Delgado, the police recovered a .45-caliber handgun that forensics later matched to shell casings found near both shooting scenes. Mendoza testified that he had been convicted for filing down the serial number on the gun and that he had been subpoenaed to appear at the trial.
The jury also heard evidence that shortly after the shooting, Mr. Olvera sold his Buick. Police spotted the Buick ten days after the shooting. When they stopped the car, they identified the driver as John Teague. Upon searching the car, the police found Mr. Olvera's license plates and registration, as well as paperwork purporting to transfer the title of the car from Mr. Olvera to "Boy Tiegue" a day earlier.5
Mr. Olvera called a hairdresser, Marisol Sandoval, as a defense witness. Sandoval testified that, according to her appointment logs, Mr. Olvera was in her salon at the time when Montalvo said she overheard Mr. Olvera speaking to Espinoza at Espinoza's apartment. Sandoval's testimony, Mr. Olvera contended, undercut Montalvo's credibility.
After the parties rested, the jury deliberated for approximately one half-hour before returning a guilty verdict. The Illinois courts later upheld his murder conviction on direct appeal.6
In May 2002, Mr. Olvera sought postconviction review of his conviction in the Illinois state courts. His primary allegation was that his trial counsel had failed to "contact or call" several witnesses "whose testimony would have been of significant benefit to him."7 In support of his petition, he attached affidavits from multiple witnesses and potential witnesses, seven of whom are relevant to his appeal here.8
First , Robert Espinoza averred that his girlfriend, Montalvo, testified falsely to having overheard Mr. Olvera admit to Espinoza that he had told Delgado to fire at the Latin Kings. According to Espinoza, no such conversation occurred. Espinoza posited that Montalvo had lied to gain leniency in a federal racketeering case he faced at the time of Mr. Olvera's trial. Espinoza also noted that Mr. Olvera's attorney knew of his whereabouts during the trial...
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