Executed August 7, 2008 06:25 p.m. CDT by Lethal Injection in Texas
18th murderer executed in U.S. in 2008
1117th murderer executed in U.S. since 1976
6th murderer executed in Texas in 2008
411th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
H / M / 22 - 29
H / M / 56
Chi v. Quarterman, 223 Fed.Appx. 435 (5th Cir. 2005) (Habeas).
Chi v. State, Not Reported in S.W.3d, 2004 WL 3093231 (Tex.Crim.App. 2004) (Direct Appeal).
"God forgive them. Receive my spirit." With a tear at the corner of his right eye, he told a cousin watching through a window that he loved him, then whispered in Spanish what appeared to be a prayer.
Texas Department of Criminal Justice - Executed Offenders (Heliberto Chi)Inmate: Chi, Heliberto
Summary of Incident: On 3/24/2001, in Arlington, Chi and one co-defendant murdered the manager of a men's clothing store during a robbery. Chi entered a men's clothing store armed with a .38-caliber handgun while the co-defendant waited in the car outside. Chi fatally shot the 56-year old white victim in the back. Chit also shot an 18-year old Hispanic male in the back. The second victim was transported to a local hospital, where he was treated and released.
Texas Attorney General
Thursday, July 31, 2008
Media Advisory: Heliberto Chi Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Heliberto Chi, who is scheduled to be executed after 6 p.m. Aug. 7, 2008, for the robbery-murder of the manager of a men’s clothing store in Arlington.
FACTS OF THE CRIME
Heliberto Chi was convicted and sentenced to die in Texas state court for the aggravated robbery and murder of Armand Paliotta, the manager of K&G Men’s Store in Arlington, Texas. The evidence presented at trial is as follows.
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.
On June 26, 2001, Chi was indicted for the capital murder of Armand. On Nov. 7, 2002, a jury found him guilty of capital murder. On November 14, 2002, after a separate punishment hearing, the court assessed Chi’s punishment at death. The Texas Court of Criminal Appeals affirmed Chi’s conviction and sentence. The U.S. Supreme Court denied Chi’s petition for writ of certiorari on November 15, 2004.
Chi filed a state application for writ of habeas corpus in the trial court on July 9, 2004. The trial court entered findings of fact and conclusions of law recommending that Chi be denied relief on February 28, 2005. On April 27, 2005, the Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Chi habeas relief.
On April 27, 2006, Chi filed a federal habeas petition in a Fort Worth federal district court. On June 21, 2006, the district court denied Chi habeas relief. Chi then sought permission to appeal from the 5th U.S. Circuit Court of Appeals. On March 30, 2007, the appellate court denied Chi permission to appeal. On June 28, 2007, Chi petitioned the U.S. Supreme Court for certiorari review. On Sept. 25, 2007, the Supreme Court denied the petition for review. On Oct. 1, 2007, two days before his scheduled execution, Chi filed a second application for habeas relief in the Texas Court of Criminal Appeals, a petition for writ of prohibition and a motion for stay of execution. Chi was challenging the constitutionality of Texas' lethal injection protocol. On Oct. 2, 2007, the Court of Criminal Appeals granted a stay, in light of the Supreme Court's grant of certiorari review in Baze v. Rees. On June 9, 2008, the appeals court ruled that Texas' lethal injection protocol is constitutional. As a result, the court dismissed Chi's subsequent state habeas application, denied his petition for writ of prohibition, and lifted the stay of execution.
PRIOR CRIMINAL HISTORY AND EVIDENCE OF FUTURE DANGEROUSNESS
The State presented the following evidence of Chi’s criminal history and future dangerousness.
On March 2, 2001, Chi was involved in the robbery of a convenience store. Chi and an accomplice robbed the clerk at gunpoint, tied and gagged her, and stole approximately eight thousand dollars in cash and checks.
In June of 1998, Chi stole a laptop computer from Nations Bank in downtown Dallas. He was able to steal the laptop because he worked for a courier service at the time and was given an access card to the bank work area. Chi confessed to the offense.
While employed as a sheetrock worker, Chi altered the amount of the checks from his employer. He changed one check amount from $100 to $700 and another from $130 to $930. Chi told the employer his name was “Jose Garcia” and simply laughed when his employer fired him.
Chi was previously arrested and is wanted for grand theft auto in Florida.
On September 20, 1997, Chi was scaling the fence of an apartment complex when Melvin Williams, a security officer armed with a shotgun, told him to stop and identify himself. Chi did not stop and began cursing at the officer. When Chi got to a certain apartment, he stopped in the doorway, spit in Williams’ face, and slammed the door.
Chi previously dated Erica Sierra, who contacted police about Chi’s involvement in killing Armand Paliotta. Sierra testified that Chi was abusive and physically hit her. He would slap her, grab her by the throat, and hit her where he would not leave visible bruises. On one occasion, she tried to leave him and called her father. But Chi returned, pulled the phone out of the wall, threw Erica against the wall, and slammed her head into the wall. Chi also once bought Erica a piano. However, he got mad, tore up the piano, and threw the parts at her. Further, while Erica and Chi were on their way to California after the instant offense, Chi stated that he would pay anyone to kill Gloria Mendoza because she had seen him shoot Paliotta and Riojas. Additionally, Chi once described an incident where he fired a pistol at a man because he did not like the way the man was staring at him. Sierra also did not think Chi was sad about murdering Paliotta.
The State presented the following evidence of Chi’s behavior while in pre-trial and trial detention:
(a) On September 21, 2002, Chi approached a detention officer and gave him a sealed envelope. The officer told Chi that the envelope had to be unsealed, and Chi responded by threatening Weldegebrill with violence.
(b) On November 4, 2001, a detention officer for the Tarrant County Sheriff’s Department, saw that Chi was talking to other inmates, which was not allowed. She got his attention, and then Chi began taking off his uniform shirt and armband, which was also not permitted. When De La Cruz told Chi to show her his armband, he refused, became argumentative, and cursed at her. De La Cruz ordered Chi to go to his cell and shut the door. He refused to shut it and made an obscene gesture.
(c) On August 19, 2002, a pod officer for the Tarrant County Sheriff’s Department, noticed a disturbance in the pod area. Chi and an inmate named Ballfield were arguing about what to watch on TV. During the altercation, Chi repeatedly cursed at Ballfield.
(d) On August 21, 2001, another jailer, was supervising Chi when he saw Chi striking an inmate in the face with a closed fist. The inmate tried to cover up his face and did not hit back. When Carrigan commanded Chi to stop, Chi cursed, disregarded Carrigan’s command, and continued to throw punches. Carrigan commanded Chi to stop a second time, but Chi did not obey his order.
(e) Alonso Enriquez testified that he became acquainted with Chi when they were locked up together in the county jail. Chi told Enriquez about killing Paliotta. Chi said he was with another man who stayed in the car. Chi left his wallet in the car and went into the store telling the man, Paliotta, he left his wallet in store. Chi said a “stupid man” opened the door. Chi asked Paliotta for money and shot him. Chi stated he had to shoot Paliotta because he ran and the girl managed to get away. Chi then demeaned Riojas because Riojas was crying when Chi shot him. Chi also said he did not feel anything about the shootings. Further, according to Enriquez, Chi threatened to harm Erica Sierra with violence because she turned him in to the police. About the case against him, Chi said he was going to “walk.” But even if he got convicted, he was going to get out some way or another, probably by escaping. Chi also mentioned that he was going to violently harm a former girlfriend. Enriquez contacted the prosecutors in the case because Chi had made a threat against them.
(f) A criminal district court bailiff, testified that he has worked with thousands of inmates. In his opinion, Chi is a dangerous individual. In fact, he got into a scuffle with Chi trying to put restraints on him. The baliff said that he has never had to lay his hands upon any inmate other than this one time.
Finally, the State presented evidence demonstrating that Chi has been in the United States illegally since 1995
Texas Execution Information Center by David Carson.
"Illegal immigrant from Honduras executed in Texas," by Michael Graczyk. (AP Aug. 7, 2008, 11:59PM)
HUNTSVILLE, Texas — A convicted killer from Honduras could not be saved from a trip to the Texas death chamber despite pleas he unfairly was denied legal help from his consulate when he was arrested for killing a Dallas-Fort Worth store manager during a robbery. The execution Thursday evening of Heliberto Chi, 29, was the second death penalty case in Texas this week to focus on international treaty issues.
"God forgive them," Chi said from the death chamber gurney. "Receive my spirit." With a tear at the corner of his right eye, he told a cousin watching through a window that he loved him, then whispered in Spanish what appeared to be a prayer as the drugs were taking effect. His cousin, distraught, wailed in the witness area and pounded his hand on the wall of the room. Nine minutes later, Chi was pronounced dead.
Two sons of his victim, watching through a window in an adjacent room, stood stoic. Chi had glanced at them only briefly as they and other witnesses were assembling and never addressed them. Chi, an illegal immigrant from Honduras, claimed his treaty rights were violated when he was arrested in California and extradited to Texas for the robbery-murder near Dallas 7 1/2 years ago and wasn't advised to contact the Honduran consulate for legal help.
On Tuesday, convicted Mexican-born killer Jose Medellin raised similar claims. His execution was delayed nearly four hours before the U.S. Supreme Court rejected his final appeal. Four of the nine justices dissented with the majority ruling. Thursday, the high court quickly disposed of Chi's last-ditch efforts, rejecting him without dissent some 2 1/2 hours before his scheduled execution time. Lawyers for the state told the justices Chi had nearly six years of case review to raise his treaty claims and failed to do so. They also said evidence of his guilt was overwhelming.
"He cannot possibly demonstrate prejudice or a fundamental miscarriage of justice," the state's brief to the Supreme Court said. Justices responded with a terse three-line order saying his request for a stay of execution and a petition to formally review his case had both been rejected, clearing the way for the sixth execution this year in the nation's busiest death penalty state.
Chi was convicted of killing Armand Paliotta, 56, his former boss at a men's clothing store during the March 2001 robbery. Chi worked as a tailor at the store in Arlington, between Dallas and Fort Worth.
Unlike Medellin, executed for the participating in the gruesome gang rape and murders of two teenage Houston girls 15 years ago, Chi was not among some 50 death row inmates around the country, all Mexican born, who the International Court of Justice said should have new hearings in U.S. courts to determine whether the 1963 Vienna Convention treaty was violated during their arrests. Legislation to implement the process was introduced recently in Congress, but the Supreme Court ruled earlier this year neither President Bush nor the international court could force Texas to wait.
Chi's attorneys argued that unlike the Vienna Convention obligations with Mexico, the 1920s-era U.S. Bilateral Treaty of Friendship, Commerce and Consular Rights with Honduras was specifically between the U.S. and Honduras and was self-executing, meaning it didn't require legislation to have effect. The treaty also conferred individual rights and incorporated international law into enforceable domestic law, they said. Terry O'Rourke, a lawyer on Chi's legal team who teaches international law at Houston's University of St. Thomas, said he was saddened Texas was violating international law to execute Chi. "It takes you back to a very ugly time in history in Texas when we killed people because of the color of their skin and their poverty," he said.
Chi had visited the suburban Dallas store late in the afternoon the day of the robbery, then returned after closing and was let in by Paliotta after saying he'd left his wallet behind. Once inside, he pulled out a gun and demanded a money bag. Paliotta was shot and killed. Another employee was wounded trying to run away and a third hid among clothing racks and called 911 for help. On a recording of the call played at his trial, Chi can be heard calling the hiding employee, in Spanish, to "Come to the front" of the store. With police on the way, he fled a few minutes later, jumped into a waiting car and sped off.
He was arrested in Reseda, Calif., northwest of Los Angeles, about six weeks later. His 18-year-old pregnant girlfriend had turned him for assaulting her and told authorities he was wanted for murder in Texas. The couple had been on the run, crisscrossing the country.
Chi was set to die last September, but his execution was stopped because the Supreme Court was looking into whether lethal injection procedures were unconstitutionally cruel. When the justices earlier this year upheld the method as proper, his date was reset for Thursday. The getaway driver at the murder scene, Hugo Sierra, who is the brother of Chi's girlfriend, is serving a life prison term.
Four other Texas prisoners are set to die this month, including two more next week. They're among at least 15 Texas inmates with execution dates in the coming months.
"Man executed for 1991 robbery, murder in Arlington," by Kristin Edwards. (August 07, 2008 10:12 pm)
— A man convicted of the 1991 aggravated robbery and murder of an Arlington store manager was executed Thursday at the Texas Department of Criminal Justice Walls Unit. Heliberto Chi, 29, was pronounced dead at 6:25 p.m., less than three hours after the Supreme Court denied his final appeal in a 9-0 vote.
“Heliberto Chi was executed Thursday for the 2001 slaying of Armand Paliotta, the manager of K&G Men’s Store in Arlington,” TDCJ representative Jason Clark said. “He also shot an 18-year-old who was later able to identify him.” During his final statement, Chi spoke first in English in a prayer, then in Spanish to address his family. “God, forgive them and receive my soul,” he said. “I love you, Edgardo.” After speaking audibly, Chi recited what sounded like a prayer in Spanish for several minutes until he stopped breathing.
Edgardo Reves, a cousin of Chi’s, wailed and moaned as he watched the execution. The sons of the victim made no statements following the execution. Witnesses said Reves banged on the window looking into the execution chamber, and he also appeared to collapse into the arms of spiritual advisers.
The appeal filed by Chi’s attorneys referred to his right as a Honduran national to consult a consulate representative during his trial. It also addressed an additional clause unique to Honduras, which stated that a lack of American legislation did not negate the consulate requirement.
According to information released by the Texas Attorney General’s office, Chi was a former employee of K&G’s Men’s Store, and he was allowed into the store after business hours on March 24, 2001. After looking for his wallet inside, Chi returned to the front door and pulled out a .38 calibur gun, telling 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 fired at him. Two store employees, Adrian Riojas and Gloria Mendoza, ran from Chi, and Chi shot Riojas in the back.
"Texas executes Honduran man for 2001 murder." (Fri Aug 8, 2008 1:10am EDT)
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 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
First Name: Heliberto
Last Name: Chi
Eye Color: Black Hair Color: Black
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
Heliberto ChiMy 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
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.
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.
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.
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.
For the foregoing reasons, Chi's Application for a Certificate of Appealability is DENIED.