United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit March 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-70030
HELIBERTO CHI,
Petitioner-Appellant,
VERSUS
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Heliberto Chi was convicted in Texas state court
and sentenced to death for the murder of Armand Paliotta. He comes
before this Court to request a Certificate of Appealability (“COA”)
to appeal the district court’s denial of federal habeas relief.
Because we find that reasonable jurists could not debate the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
conclusions of the district court, we deny his application.
I. Background
The Texas Court of Criminal Appeals summarized the facts of
the case as follows:
In the late afternoon of March 24, 2001, Chi entered
the K & G Men's Store in Arlington and approached one of
the employees. She recognized him as a former employee of
the store. He questioned her about whether there were
policemen on duty in the store and whether they were
uniformed or in plain clothes. He also asked how many
employees were working that day and she pointed them out.
Chi then had a discussion with the manager, Armand
Paliotta, and the assistant manager, Gloria Mendoza, in
which he asked for, and was provided, the phone number of
one of the employees. Chi remained in the store about 30
minutes before leaving. The store closed at 7 p.m.
Paliotta, Mendoza, and another employee, Adrian Riojas,
remained to attend to closing duties. Paliotta counted
the money and prepared the bank bag for deposit, and
Mendoza and Riojas shut down the computers and completed
closing matters. Around 8 p.m., Chi knocked on the front
door of the store and Paliotta unlocked the door and let
him in. Chi stated that he had left his wallet in the
tailor shop at the back and went to look for it. The
others finished their closing duties and waited for Chi
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at the front of the store. Paliotta, who was holding the
bank bag, held the door open and prepared to set the
alarm. As Chi reached the front doors, he pulled out a
gun and told them to get back inside the store. Riojas
went first, followed by Mendoza, and then Paliotta. Chi
took the bank bag from Paliotta and told the three to go
to the back of the store. As they were walking, Paliotta
pushed Chi and began running to the front of the store.
Chi ran after him and then stopped and fired at him. When
he turned around, Riojas and Mendoza began running.
Riojas ran into the warehouse, pursued by Chi. Riojas
quickly found himself trapped by various locked doors.
When he saw Chi approaching with his gun drawn, he began
to run in a different direction. Chi shot Riojas in the
back as Riojas was running from him. After Riojas fell,
Chi stated, "Quedate apagado," which means, "Stay dead,"
in Spanish.
In the meantime, Mendoza ran toward the front of the
store. She checked on Paliotta and saw that he had been
shot. She called 911. Before talking to anyone, she heard
the doors from the warehouse open so she set the phone
down and hid beneath a rack of clothes. She could hear
Chi's footsteps walking toward her and she heard Chi say,
"Vente para frente," which means, "Come to the front," in
Spanish. Mendoza remained where she was. After at least
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ten minutes, Mendoza came out from beneath the rack and
checked on Paliotta again. She could no longer detect any
breathing. She returned to the phone to attempt to talk
to someone at 911 and heard a conversation taking place
between Riojas and the operator. The police arrived and
Riojas and Mendoza ran outside. Paliotta died from a
gunshot wound to the back. Riojas survived.
Chi v. State, No. 74,492, slip. op. at 3-5 (Tex. Crim. App. May 26,
2004).
Chi was convicted and sentenced to death for murdering
Paliotta while in the course of committing or attempting to commit
aggravated robbery. The Texas Court of Criminal Appeals (“TCCA”)
affirmed Chi’s conviction and sentence and later denied Chi’s
application for state habeas relief. Chi filed a federal habeas
petition in the U.S. District Court for the Northern District of
Texas. On June 21, 2006, the district court denied Chi’s request
for habeas relief. Chi then filed a notice of appeal and motion
for a COA, but the district court denied the COA motion. The
instant application for a COA in this Court followed in which Chi
asserts the following grounds:
(1) Chi alleges he was deprived of his rights under the
Vienna Convention on Consular Relations when he was not informed of
his right to contact the Honduran Consulate, and therefore, the
Texas trial court should have suppressed inculpatory statements Chi
made to police;
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(2) Chi alleges Texas’ death penalty scheme violates the
Equal Protection Clause, under Bush v. Gore, 531 U.S. 98 (2000),
because it lacks standards to guide prosecutors regarding whether
to seek a death sentence; and
(3) Chi alleges his due process rights were violated by the
misconduct of the court reporter, when the defendant and the court
reporter allegedly flirted and passed a note during the jury
selection phase of the trial.
II. Discussion
Chi’s federal habeas petition was filed after the effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA),
therefore the petition is subject to AEDPA’s requirements. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a petitioner must
apply for and obtain a COA before appealing a district court’s
denial of habeas relief. 28 U.S.C. § 2253(c); see also Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). The district court denied
Chi’s request for a COA; therefore, his only alternative is to
obtain a COA from this Court. See 28 U.S.C. § 2253(c); see also
Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006).
We will issue a COA if Chi can make “a substantial showing of
the denial of a constitutional right” by demonstrating “that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). We acknowledge that the inquiry of this
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Court “is a threshold inquiry only – and does not require full
consideration of the factual and legal bases of [the petitioner’s]
claim.” Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005).
Because Chi was sentenced to death, “we must resolve any doubts as
to whether a COA should issue in his favor.” Martinez v. Dretke,
404 F.3d 878, 884 (5th Cir. 2005).
In determining whether reasonable jurists would debate the
district court’s assessment of the claims presented, we keep in
mind that a petitioner is entitled to habeas relief under AEDPA
only if the state court’s decision is (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court” or (2) “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); Leal v.
Dretke, 428 F.3d 543, 548 (5th Cir. 2005). Furthermore, “[t]he
state court's findings of fact are entitled to a presumption of
correctness and the petitioner may overcome that presumption only
by clear and convincing evidence.” Leal, 428 F.3d at 548 (citing 28
U.S.C. § 2254(e)(1)).
A. The Vienna Convention
Chi claims that, as a citizen of Honduras, he should have been
advised of his right under Article 36 of the Vienna Convention to
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contact the Honduran Consulate upon his arrest.1 Because he was not
advised of this right, Chi argues that statements he made to a
police officer after his arrest were inadmissible.2
Chi raised his Vienna Convention claim at his trial, but he
did not raise the claim on direct appeal in state court. Both the
TCCA in Chi’s state-habeas proceedings and the district court in
Chi’s federal-habeas proceedings determined that the failure to
raise this issue on direct appeal rendered it procedurally
defaulted. See Coleman v. Thompson, 501 U.S. 722, 729 (1991)
1
Article 36 of the Vienna Convention provides in relevant part:
“[I]f [the detained national] so requests, the competent
authorities of the receiving State shall, without delay,
inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained
in any other manner. . . . The said authorities shall inform
the person concerned without delay of his rights under this
sub-paragraph.”
Vienna Convention on Consular Relations Art. 36(1)(b), done Apr.
24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
2
Miguel Brambila, an officer with the Los Angeles Police
Department, testified in a hearing that he was in charge of booking
Chi. During a routine strip search, Chi allegedly said:
“I know I’m in for murder and I know I’m going to die, but I
didn’t kill anyone. Yes, I committed robberies, but I didn’t
shoot anyone. It was the other guy. He shot the man in the
back and as I turned around and walked away, he shot the other
guy. I couldn’t believe it. I had been smoking marijuana all
day and I didn’t know what was going on. I know – are they
going to kill me because I was with him when the killing
happened? I know that’s the penalty, but I didn’t do
anything.”
Brambila testified that these comments were spontaneous and not
in response to any questioning. Brambila admitted that he did not
inform Chi of his right to contact the Houduran Consulate. Brambila
also claimed that he was unaware that Chi was not a U.S. citizen.
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(determining there can be no federal review of a state court
decision if that decision is based on an independent state law
ground, either substantive or procedural); see also Ex parte Rojas,
981 S.W.2d 690, 691 (Tex. Crim. App. 1998) (“It is well-settled
‘that the writ of habeas corpus should not be used to litigate
matters which should have been raised on direct appeal.’”(citing Ex
parte Goodman, 816 S.W.2d 383, 385 (Tex. Crim. App. 1991))).
Chi argues that procedural default rules cannot apply to this
claim, but this argument is foreclosed by the recent Supreme Court
decision in Sanchez-Llamas v. Oregon, __ U.S. __, 126 S. Ct. 2669,
2687 (2006) (“We therefore conclude...that claims under Article 36
of the Vienna Convention may be subjected to the same procedural
default rules that apply generally to other federal-law claims.”).
Therefore review of this claim is barred “unless the prisoner
can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750. The district
court correctly concluded that Chi has not shown (1) cause for his
default, (2) resulting prejudice from the default, or (3) that
failure to consider this issue will result in a miscarriage of
justice.3 Reasonable jurists would not debate the district court’s
3
We agree with the district court that given the overwhelming
evidence against Chi, including the testimony of the two surviving
store employees, Chi would be hard pressed to show any prejudice
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determination that this claim is procedurally barred.
B. Texas Death Penalty Scheme
Chi next argues that he should be granted a COA based on his
claim of a violation of equal protection as outlined in Bush v.
Gore, 531 U.S. 98 (2000). Chi alleges that Bush v. Gore renders
Texas’ death penalty scheme unconstitutional because it fails to
set forth uniform standards as to when a prosecutor should seek the
death penalty, thus leading to the disparate treatment of similarly
situated people accused of capital offenses. The district court
rejected the argument that Bush v. Gore, a case involving equal
protection in the election process, had any relevance to the
constitutionality of Texas’ death penalty scheme.
Chi’s arguments are foreclosed by this Court’s decision in
Coleman v. Quarterman, 456 F.3d 537 (5th Cir. 2006). “In two
unpublished decisions, this court previously has discussed Bush v.
Gore's utter lack of implication in the criminal procedure context.
We adopt the reasoning of those persuasive opinions and, likewise,
conclude that the question is beyond debate.” Coleman, 456 F.3d at
542-43 (citing Wyatt v. Dretke, 165 F. App’x. 335 (5th Cir. 2006)
(unpublished); Hughes v. Dretke, 160 F. App’x. 431 (5th Cir. 2006)
stemming from the admission of his statements to the police.
Furthermore, in Sanchez-Llama, the Supreme Court rejected the
argument that violations of Article 36 of the Vienna Convention
require the exclusion of incriminating statements made to police.
See Sanchez-Llama, 126 S. Ct. at 2682.
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(unpublished)). Reasonable jurists would not find the district
court’s resolution of this claim debatable.
C. Court Reporter Misconduct
Finally, Chi asserts a violation of his due process rights as
a result of the court reporter flirting with him during the jury
selection phase which in turn caused him to act inappropriately in
front of prospective jurors. Specifically, two bailiffs observed
the court reporter and Chi smiling at each other, and at one point
Chi was observed licking a piece of candy in a seductive manner
while looking at the court reporter, who was then seen smiling
back. The court reporter also admitted to passing a note to Chi
that said “Can I trust you?” This activity was brought to the
attention of the judge. The judge replaced the court reporter and
denied Chi’s motion for mistrial after determining there was no
issue regarding the integrity of the record. On review of this
issue, the district court determined Chi’s argument of a due
process violation to be without merit.
The parties acknowledge that there is a lack of case law
involving either the misconduct of, or inappropriate contact by, a
court reporter during trial. However, regardless whether we compare
these circumstances to cases involving extrajudicial contact or
prosecutorial misconduct, a common thread among those cases is that
there needs to be some resulting harm to the defendant. See, e.g.,
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (“The standard is
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whether the [prosecutorial] misconduct ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974))); United States v. Burke, 496 F.2d 373, 377 (5th Cir. 1974)
(determining that the second prong in the test for improper
extrajudicial conduct is whether the defendant was prejudiced).
Chi has made no showing of prejudice from the events that
occurred. Defense counsel conceded that it is unknown if the
incident was even seen by any of the jurors. Chi’s only argument
for prejudice is that his request for an evidentiary hearing to
establish harm has been denied. However, to be entitled to
discovery and a hearing, a petitioner’s factual allegations must be
specific, not merely speculative or conclusory. See Perillo v.
Johnson, 79 F.3d 441, 444 (5th Cir. 1996). Chi’s request for an
evidentiary hearing is unsupported by specific factual allegations
of prejudice and appears only to be an attempt to conduct a fishing
expedition. Therefore we conclude that reasonable jurists could not
debate the district court’s determination that Chi’s due process
rights were not violated.
III. Conclusion
For the foregoing reasons, Chi’s Application for a Certificate
of Appealability is DENIED.
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