Eloy Simental v. Ronald Matrisciano

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3054
E LOY S IMENTAL ,
Petitioner-Appellant,
v.
R ONALD M ATRISCIANO ,
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.
____________
A RGUED F EBRUARY 18, 2004—D ECIDED A PRIL 5, 2004
____________
Before COFFEY , EASTERBROOK , and EVANS , Circuit Judges.
E VANS , 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

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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

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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.

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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

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No. 02-3054 5
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.
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

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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

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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

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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

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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.”

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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

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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

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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.

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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 .

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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

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