Texas executes Honduran man for 2001 murder

Reuters News

Aug 8, 2008

HOUSTON (Reuters) - Texas executed a Honduran man on Thursday for a 2001 murder, the second foreigner the state put to death this week. Heliberto Chi, 29, was condemned for the March 2001 robbery-murder of his former boss at a clothing store in Arlington, Texas.

Chi's lawyers argued in a final appeal to the U.S. Supreme Court that he should be granted a stay because he had not been notified of his right to consular services. The court denied the appeal, paving the way for Chi's execution by lethal injection in the state's death chamber in Huntsville.

Lawyers for Mexican national Jose Medellin, convicted for his part in a brutal 1993 gang-rape and murder in Houston, made a similar unsuccessful appeal before his execution on Tuesday. Medellin's case was taken up by the World Court and the White House but the state of Texas remained unswayed. The World Court last month ordered the U.S. government to "take all measures necessary" to halt executions of five Mexicans including Medellin because they had been deprived of their right to consular services after their arrests.

In Chi's case, separate from the World Court proceedings, the state argued that upon his arrest, Chi had not immediately identified himself to police as a foreign national. In a last statement, Chi said: "Jesus receive my spirit."

Texas leads U.S. states in executions, reflecting its conservative political culture and high violent crime rate.

Chi was the sixth inmate executed there this year and the 411th since 1982, when the state resumed executions six years after the U.S. Supreme Court reinstated capital punishment.

Heliberto Chi was sentenced to death for the robbery-murder of the manager of a men’s clothing store in Arlington. Armand Paliotta was the manager of K&G Men’s Store in Arlington, Texas. Around 8 p.m. on March 24, 2001, Heliberto Chi knocked on the door of the K&G Men’s store in Arlington and a employee unlocked the door and allowed Chi, a former employee, to enter, after he explained that he had left his wallet in the store after a visit to the store earlier in the day.

The store had closed at 7 p.m., with manager Armand Paliotta and two other employees remaining to attend to closing duties, including preparing the day’s receipts for deposit. After going to search for his wallet, Chi returned to the front door and pulled out a gun and told the employees who were at the entrance to get back inside.

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 Chi turned around, store employees Adrian Riojas and Gloria 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. Paliotta died from a gunshot wound to the back. Riojas survived.

Armand Paliotta was the descendant of Italian immigrants who moved from New York to the Dallas area about 20 years before his death. Paliotta was remembered as a kind-hearted father, husband and a compassionate supervisor. His wife, Acela, came to America from Cuba. His co-workers at the Arlington men’s store recalled him as fun-loving and kindhearted. "He was my friend, and I’ll always remember him as a good man," said Abdon Hernandez, a Mexican immigrant who still works as a tailor in the shop where Paliotta died. "He was very good to me. He was very good to the immigrant community. He loved the Hispanic culture. It’s very painful to me that he was killed by someone who was an immigrant."

In an interview with the Ft. Worth Star-Telegram shortly after her husband’s death, Acela Paliotta shared that sentiment. At the time, she was the coordinator of English as a second language, bilingual and foreign language programs for the Hurst-Euless-Bedford school district. "I don’t want to forget what it’s like to be an immigrant so I can minister to them," she said. "I treasure those painful memories. I feel like part of my mission is to be a good mom and to help parents who are immigrants assimilate and acculturate in this great country." Of Chi, she said: "He could have been one of those I would have helped. Instead of picking up a pen and a book, he picked up a gun."

UPDATE: Heliberto Chi was executed after the Supreme Court rejected an appeal based on his status as a Honduran citizen. Armand Paliotta's sons Armand Paliotta Jr. and Christopher Paliotta witnessed the execution. In a final statement, Chi said, "God forgive them and receive my spirit." In Spanish, he spoke to a cousin who was in the witness room. "I love you, Edgardo. I appreciate your hard work."

Bonds Behind Bars.com

First Name: Heliberto
Last Name: Chi
DOC#: 999437
D.O.B.: 12-20-1978
Eye Color: Black Hair Color: Black
Sex: Male
Religion: N/A
Sexual Orientation: N/A
Incarcerated Since: 2002
Crime: Capital Murder
Earliest Release Date: Death
Ad Start Date: 2-1-2007 Ad End Date: 2-1-2008

My name is Heliberto Chi. I am 28 years old. I was born December 20th 1978 in San Pedrosula, Honduras. I stand 5” 10 Ft. Tall I weigh 180 pounds. I have black eyes and black hair and I’m currently living on Texas Death Row. Since Nov. 2002. I am writing you this letter in hopes to find a pen pal and hopefully we can become friends. Some of my hobbies are reading military history, drawing, writing and exercise. That’s basically what I can do in here. I spend most of the day in my cell (23 hours a day). It gets desolate here at times!

I am a very outgoing person who is looking to write the same I enjoy talking about life and social matters. So it would be really good to write someone for some conversation now if you are some one who enjoys pondering and debating philosophy, political and others social matters. Then I’m the one you want to write.

Thank you for your time in reading my words once again. If you like to know more about me please feel free to write. Fluent in Spanish and English.

Heliberto Chi #999437
Polunsky Unit
3872 FM 350 South
Livingston, TX 77351 USA

Chi v. State, Not Reported in S.W.3d, 2004 WL 3093231 (Tex.Crim.App. 2004) (Direct Appeal).

Background: Defendant was convicted in the trial court, Tarrant County, of capital murder and was sentenced to death. Defendant appealed.

Holdings: The Court of Criminal Appeals, Keasler, J., held that:

(1) death penalty scheme's failure to require the state to prove the absence of mitigating circumstances did not render it unconstitutional;
(2) beyond a reasonable doubt standard did not apply to mitigation special issue;
(3) evidence was sufficient to support finding that defendant intended to kill store employee when he shot him during robbery, as required for capital murder conviction;
(4) death penalty scheme did not deprive defendant of a particularized punishment assessment, so as to render it unconstitutional;
(5) death penalty scheme's failure to ascribe a burden to one of the parties on mitigation special issue did not render it unconstitutional; and
(6) death penalty scheme's failure to provide for appellate review of mitigation issue did not render it unconstitutional. Affirmed.

KEASLER J., delivered the opinion for a unanimous Court.

Heliberto Chi was convicted in November 2002 of capital murder.FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced Chi to death.FN2 Direct appeal to this Court is automatic. FN3 Chi raises six points of error challenging his conviction and sentence. We reject his contentions and affirm his conviction and sentence.

In point of error one, Chi claims the Texas death penalty scheme is unconstitutional because it fails to require that the State prove there are no mitigating circumstances sufficient to warrant the imposition of a life sentence. He relies on Apprendi v. New JerseyFN4 and Ring v. Arizona.FN5

We have addressed and rejected this argument in previous cases.FN6 Chi also argues that the death penalty scheme is unconstitutional as applied to him because it failed to place any burden on the State to disprove statistical evidence presented by Chi that there was a 27.8 percent chance that he would commit future acts of violence that would constitute a threat to prison society.

The character or type of evidence offered by Chi on the future dangerousness or mitigation issues has no effect on whether the State bears a burden of proof on the mitigation issue. And the State bears the burden of proof on the future dangerousness issue. Finally, the jury is charged with the task of evaluating the credibility of and placing a value on the evidence presented, including the statistical evidence in this case.FN7 Point of error one is overruled.

In point of error two, Chi claims the trial court erred by failing to charge the jury that a beyond a reasonable doubt standard applied to the mitigation issue. Chi refers to point of error one for the constitutional basis of this argument. Because there is no constitutional requirement that the State prove the absence of mitigating circumstances, the trial court did not err in refusing to so instruct the jury. Point of error two is overruled.

In point of error three, Chi claims the evidence was legally insufficient to prove he had the requisite intent to kill. 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 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 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.

In assessing the legal sufficiency of the evidence, the reviewing court considers all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.FN8 The Jackson standard of review “gives full play to the jury's responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence.” FN9

Chi claims the evidence is insufficient to prove he intended to kill Paliotta because he stopped briefly before shooting him. Viewing the evidence in a light most favorable to the verdict, a rational jury could view Chi's stopping before firing as indicative of an intent to kill because it suggests that he took careful aim and was not simply running and firing randomly in the heat of the pursuit.

Moreover, Paliotta was shot in the back as he ran from Chi, just as Chi shot Riojas in the back a few minutes later. Chi told Riojas to “stay dead” after shooting him. A rational jury could conclude beyond a reasonable doubt that Chi intended to kill Paliotta. Point of error three is overruled.

In his fourth point of error, Chi claims the Texas capital murder scheme is unconstitutional on its face and as applied to him because the life sentence option is not a legitimate sentence alternative to death. Chi claims that because the special issues allow the State to argue that a defendant will be a future danger to society in prison as well as outside of prison, a life sentence is not a viable punishment option.

He points to the cross-examination of his expert witness, S.O. Woods, at punishment. Woods testified for the defense about the classification system within the prison and segregation classifications for inmates based on risk assessments.

On cross-examination, the State rigorously questioned him about incidents of prison violence and escapes. Chi argues that he was “sentenced based in part on the inability of the State of Texas to provide facilities that provide for prevention of dangerous acts by incarcerated individuals.” He claims this situation deprived him of a particularized punishment assessment.

The fact that the State may present evidence bearing on the potential for violence in prison does not guarantee a particular response on the future dangerousness issue. The jury remains free to weigh and evaluate the evidence presented by the State as well as evidence presented by the defendant in light of the other evidence and the defendant's particular circumstances. As pointed out by the State in its brief, Chi's premise is disproved by the fact that juries do in fact find against the State on the special issues, resulting in life sentences in some capital murder cases. Point of error four is overruled.

In his fifth point of error, Chi claims that Article 37.071 is unconstitutional on its face and as applied because the burden of proof that is implicitly placed on the defendant to produce mitigating evidence is not reflected in a meaningful charge to the jury. Chi quotes from Lawton v. StateFN10 in which we stated:

We concede that the Texas legislature has not assigned a burden of proof regarding mitigating evidence. We also concede that the burden is implicitly placed upon appellant to produce and persuade the jury that circumstances exist which mitigate against the imposition of death in his case. Appellant complains that this violates the federal constitution.

However, we are unaware of any constitutional requirement that the burden of proof regarding mitigating evidence be placed on either party, and to the extent that the burden is on appellant, we note that it is not unconstitutional to so place the burden. Chi argues that the burden falls on the defendant under the statute but the statute fails to define the parameters of the implicit burden.

There is no burden of proof placed on either party under the statute. Just as a defendant may feel compelled to present evidence in an effort to persuade the jury that there are circumstances mitigating against the imposition of death, so is the State motivated to present evidence that there are circumstances that outweigh such a finding. The statute is not unconstitutional for its failure to ascribe a burden to one of the parties.FN11 Chi does not persuade us otherwise. Point of error five is overruled.

In his sixth point of error, Chi claims Article 37.071 is unconstitutional on its face and as applied because it fails to provide for appellate review of the mitigation issue. Chi argues that he is entitled to a sufficiency review of the mitigation issue based on the implicit burden placed upon him as recognized by the Court in Lawton.FN12

As we explained in the previous point, there is no explicit burden of proof placed upon either party, although both parties may feel compelled to present evidence in support of their respective positions. And, as we have explained before, not only is an appellate sufficiency review of the mitigation issue not constitutionally required, it is not possible.FN13 In order to conduct such a review, this Court would have to assign mitigating or aggravating weight and value to particular evidence, a function reserved for the jury.FN14 Point of error six is overruled.

The judgment of the trial court is affirmed.

Chi v. Quarterman, 223 Fed.Appx. 435 (5th Cir. 2005) (Habeas).

Background: Defendant convicted of murder and sentenced to death petitioned for a writ of habeas corpus. The United States District Court for the Northern District of Texas, 2006 WL 1710343, denied relief. Defendant appealed applied for a certificate of appealability (COA).

Holdings: The Court of Appeals held that:

(1) determination that a defendant had procedurally defaulted his claim that, as a citizen of Honduras, he should have been advised of his right under the Vienna Convention to contact the Honduran Consulate upon his arrest would not have been debated by reasonable jurists, and
(2) determination that defendant was not prejudiced by the conduct of a court reporter who allegedly flirted with him during the jury selection phase would not have been debated by reasonable jurists. Application denied.

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 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 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 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, 2004 WL 3093231 at (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;

(2) Chi alleges Texas' death penalty scheme violates the Equal Protection Clause, under Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (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, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We acknowledge that the inquiry of this 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 contact the Honduran Consulate upon his arrest.FN1 Because he was not advised of this right, Chi argues that statements he made to a police officer after his arrest were inadmissible.FN2

FN1. 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.

FN2. 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.

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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (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, 165 L.Ed.2d 557 (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, 111 S.Ct. 2546.

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. FN3 Reasonable jurists would not debate the district court's determination that this claim is procedurally barred.

FN3. 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 stemming from the admission of his statements to the police. Furthermore, in Sanchez-Llamas, 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-Llamas, 126 S.Ct. at 2682.

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, 121 S.Ct. 525, 148 L.Ed.2d 388 (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 Fed.Appx. 335 (5th Cir.2006) (unpublished); Hughes v. Dretke, 160 Fed.Appx. 431 (5th Cir.2006) (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, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (“The standard is 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, 94 S.Ct. 1868, 40 L.Ed.2d 431 (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