                                                       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opinion should not be published and is not precedent except under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

                                2
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

                           3
     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;


                                     4
     (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


                                 5
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




                                6
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.

                                     7
(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

                                   8
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.

                                9
(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



                                10
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.




                                     11
12
