1While the undersigned recognizes that 28 U.S.C. § 2254 contemplates the

filing of an "application" for writ of habeas corpus, the practice of the

Northern District of Texas has long been instead to use the term "petition." 

Consistent with this now ingrained practice, the undersigned refers to Chi's

application under 28 U.S.C. § 2254 for writ of habeas corpus as the "petition"

and uses the term "petitioner" in lieu of "applicant." 

 IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

HELIBERTO CHI, §

 §

Petitioner, §

§

§

VS. § NO. 4:06-CV-227-A

§

DOUGLAS DRETKE, Director, § 

Texas Department of Criminal §

Justice, Institutional §

Division, §

 §

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the petition for writ of habeas

corpus ("petition")1 filed by Heliberto Chi ("Chi"), an inmate in

the Texas Department of Criminal Justice, Institutional Division,

who is under sentence of death. The court has determined that

the petition should be denied for the reasons set forth in this

memorandum opinion and order. 

I.

Procedural History

On June 26, 2001, an indictment was filed against Chi for

the murder of Armand Paliotta ("Paliotta") while in the course of

committing or attempting to commit aggravated robbery. Pursuant

to the jury's answers to the special issues set forth in Texas

 

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2

Code of Criminal Procedure Article 37.071, §§ 2(b) and (e), the

judge of the Criminal District Court Number Three of Tarrant

County, Texas, sentenced Chi to death. The Texas Court of

Criminal Appeals affirmed his conviction on May 26, 2004. See

Chi v. State, No. 74,492 (Tex. Crim. App. May 26, 2004). On

November 15, 2004, the Supreme Court denied Chi's petition for

writ of certiorari. See Chi v. Texas 543 U.S. 989 (2004). 

In July 2004, Chi initiated state-habeas proceedings in the

trial court. On February 28, 2005, the trial court adopted and

entered the State's proposed findings of fact and conclusions of

law recommending that state-habeas relief be denied. On April

27, 2005, the Texas Court of Criminal Appeals adopted the trial

court's findings and conclusions and denied Chi habeas relief. 

Chi then filed this federal habeas petition through his current

counsel, Wes Ball.

II.

Underlying Facts

A. The State's Evidence

The Court of Criminal Appeals well summarized the facts of

the crime 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

 

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3

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, slip op. at 3-5.

 

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4

At the punishment phase, the State tied Chi to a series of 

of other crimes and bad acts, including:

! 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;

! While employed as a sheetrock worker, Chi altered the

amount of the checks from his employer, changing one

check from $100 to $700 and another from $130 to $930. 

He laughed when he was fired;

! In a case that is still pending, Chi has been charged

with grand theft auto;

! In 1997, Chi spat and cursed at a security officer and

called him by a racial slur;

 

! Erica Sierra, whom Chi previously dated, traveled with

Chi to California after the murder of Paliotta. She

said that Chi stated that he would pay anyone to kill

Mendoza, because she had seen him shoot Paliotta and

Riojas. She also said that she did not think that Chi

was sad about committing the murder. Further, Chi was

very abusive toward Sierra; and

! Chi had been in the United States illegally since 1995.

 

There was also evidence that, while incarcerated and

awaiting trial, Chi continued to pose a threat to others. For

example, he cursed at two officers, threatening one with physical

violence, claiming that he had "nothing to lose." He also cursed

at fellow inmates, striking one repeatedly in the face. Also,

etchings on the inside of his prison door suggested that Chi may

have carried a sharp instrument into his cell. 

 

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5

Alonso Enriquez, who met Chi while they were locked up

together in county jail, testified that Chi spoke of the evening

when he murdered Paliotta without remorse. Indeed, according to

Enriquez, Chi admitted that he did not feel anything about the

shootings. He said that a "stupid man" opened the door. He

mocked Riojas for crying when he shot him. Chi boasted that,

even if he were convicted, he was going to get out some way or

another. And, when he did, he was going to mutilate a former

girlfriend and also get Erica Sierra, who had turned him in to

authorities.

Finally, John Murphy, a court bailiff, testified that he had

worked with thousands of inmates and believed that Chi is a

dangerous individual. In fact, Chi got into a scuffle with

Murphy while he was trying to put restraints on him. Murphy said

that he had never before had to lay his hands on an inmate. 

B. Chi's Evidence

Chi's evidence consisted of two witnesses, S.O. Woods, a

retired worker from the Texas Department of Criminal Justice, and

John Sorenson, a college-research criminologist. Woods testified

generally about how inmates are classified and how the prisons

are designed for security. On cross-examination, he stated that

he was aware from reviewing Chi's jail record that, while in

prison, Chi had requested books about the Texas Seven, a group of

prison escapees who murdered a police officer after escaping. He

conceded that this might be a tip-off to Chi's state of mind. 

Sorenson testified that the likelihood that Chi would commit

 

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6

future acts of violence is 27.8 percent. His testimony, however,

also faltered on cross-examination. By way of example only,

under Sorenson's model, Ted Bundy would have scored lower than

Chi on future dangerousness. 

III.

Scope of Review

On April 24, 1996, the President signed into law the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 ("the AEDPA"). Under the AEDPA, the

ability of federal courts to grant habeas relief to state

prisoners is narrowly circumscribed:

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the 

claim--

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court of

the United States; or

(2) resulted in a decision that was

based on an unreasonable determination of the

facts in light of the evidence presented in

the State court proceeding.

AEDPA, § 104(3) (codified at 28 U.S.C. § 2254(d)).

The AEDPA further provides:

(e)(1) In a proceeding instituted by an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of

correctness by clear and convincing evidence.

 

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2Although Chi urged two separate grounds on the basis of ineffective

assistance of counsel for a total of five grounds, the court has combined

those two grounds into one with two subsections. 

7

AEDPA § 104(4) (codified at 28 U.S.C. § 2254(e)(1)).

Having reviewed the petition, the response, the record, and

applicable authorities, the court finds that none of Chi's

grounds has merit.

IV.

Grounds for Relief

Chi urges four grounds in support of his petition.2 They

are as follows: 

Ground One: Chi was deprived of his right to be informed of

his rights under the Vienna Convention on Consular

Relations ("the Vienna Convention") and to contact

a consular official from his home country and the

failure to so advise him rendered Chi's statement

to a law enforcement official inadmissible.

Ground Two: Chi received ineffective assistance of counsel:

(1) Trial counsel rendered ineffective assistance

of counsel by failing to present evidence in

mitigation of the death penalty that

petitioner was remorseful concerning his

participation in the death of the victim; and 

(2) Trial counsel rendered ineffective assistance

of counsel by failing to present evidence to

rebut prosecution evidence concerning future

dangerousness in a confinement setting. 

Ground Three: Significant error occurred during Chi's trial due

to the conduct of a trial official, namely a court

reporter that encouraged applicant to engage in

improper behavior in the presence of jurors during

jury selection, thereby violating Chi's rights to

due process.

Ground Four: The death penalty scheme in Texas is

unconstitutional under the Equal Protection Clause

of the United States Constitution based on the

 

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3A copy of Chi's state-court records was forwarded to the court on May

26, 2006. The "Tr." reference is to the court reporter's record of the

transcribed, state-trial proceedings. Citations to "Tr." are preceded by

volume number and followed by the relevant page number(s).

8

lack of standards to guide prosecutors regarding

whether to seek death.

V.

Discussion

A. Ground One: The Vienna Convention

Chi contends that as a citizen of Honduras he was entitled

upon arrest to be advised of his right to contact a consular

official from his home country under the Vienna Convention.

Because he was not so advised, Chi urges that the trial court

erred by admitting into evidence certain statements that he made

to a law enforcement officer during a strip search. See Chi's

Federal Habeas Pet. at 6. The gist of Chi's statements was that,

though he had been at the crime scene to participate in the

robbery, someone else had committed the shootings. See 34 Tr.3

at 45-46.

 As correctly found by the trial court and subsequently also

by the Texas Court of Criminal Appeals in Chi's state-habeas

proceedings, Chi's failure to raise his complaint under the

Vienna Convention on direct appeal renders it procedurally

defaulted. See State Habeas Record ("HR") at 226-229 (State's

Proposed Finding of Fact No. 13 and Conclusions of Law Nos. 1-6);

HR at 257 (February 28, 2005, Order of trial court adopting all

of State's proposed findings of fact and conclusions of law); see

also Ex parte Chi, No. 61,600-01 (Tex. Crim. App. April 27, 2005)

 

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9

(Texas Court of Criminal Appeals adopting trial court's finding

and conclusions). 

This prior finding of procedural default precludes federalhabeas review of this ground:

We now make it explicit: In all cases in which a state

prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims 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 v. Thompson, 501 U.S. 722, 750 (1991).

Here, Chi has made no attempt to show either cause for his

default, resulting prejudice from his default, or that failure to

consider this ground will result in a fundamental miscarriage of

justice. Nor does it appear that Chi could given the

overwhelming other evidence of his guilt. Indeed, the court

concurs with respondent's confusion over how statements wherein

Chi denied committing the murders could even be prejudicial. See

Resp't's Federal Answer at 21 (emphasis added). 

Further, Chi's assertion that a claim under the Vienna

Convention cannot be procedurally defaulted is incorrect. The

Supreme Court has specifically held that claims under the Vienna

Convention can be procedurally defaulted just as constitutional

 

 Case 4:06-cv-00227-A Document 13-2 Filed 06/21/06 Page 9 of 18 PageID 263
4Without citation to any legal authority of the United States, Chi urges

that recent opinions by the International Court of Justice "clearly trump the

decision in Breard." See Chi's Federal Habeas Pet. at 10. The court declines

Chi's bare invitation to disregard Supreme-Court precedent. In addition,

Chi's reliance on Medellin v. Dretke, 544 U.S. 660 (2005) rings hollow. In

Medellin, the Supreme Court dismissed writ of certiorari as improvidently

granted. As Chi himself concedes, Breard is thus the last word by the Supreme

Court on this subject. See Chi's Federal Habeas Pet. at 10. And, under

Breard, Chi's claim is procedurally defaulted. 

10

claims. See Breard v. Greene, 523 U.S. 371, 375-77 (1998).4

Chi's first ground is therefore denied as procedurally defaulted. 

Even if it not procedurally defaulted, Chi's claim under the

Vienna Convention would fail on the merits for several reasons. 

By way of example, the Fifth Circuit has held that the Vienna

Convention does not confer individually enforceable rights. See,

e.g., Cardenas v. Dretke, 405 F.3d 244, 253 (5th Cir. 2005). 

Further, a showing of prejudice is a prerequisite to relief under

the Vienna Convention. See Rosales v. Bureau of Immigration and

Customs, 426 F.3d 733, 737-38 (5th Cir. 2005), cert. denied, __

U.S. __ , 126 S.Ct. 1055 (2006), (regardless of whether

petitioner's right under the Vienna Convention are protected

under the United States Constitution, petitioner was not entitled

to any relief because he had not shown prejudice from the failure

to advise him of his right to contact the Mexican consulate); see

also Breard, 523 U.S. at 377 ("Even were Breard's Vienna

Convention claim properly raised and proved, it is extremely

doubtful that the violation should result in the overturning of a

final judgment of conviction without some showing that the

violation had an effect on the trial.") (citation omitted). 

Again, Chi has not shown any prejudice from any violation of the

 

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5If Chi cannot show that the ineffectiveness of his counsel deprived him

of a substantive or procedural right to which the law entitles him, then he

must show that the result of the proceeding was fundamentally unfair or

unreliable. Williams v. Taylor, 529 U.S. 362, 391-93 (2000) (discussing

Lockhart v. Fretwell, 506 U.S. 364 (1993), and Nix v. Whiteside, 475 U.S. 157

(1986)).

11

Vienna Convention and would be hard pressed to do so given the

compelling evidence of his guilt of a capital offense and the

litany of other bad acts he committed before and during his

incarceration.

B. Ground Two: Ineffective Assistance of Counsel

In order to prevail on an ineffective assistance of counsel

ground, Chi must show (1) that his counsel's performance fell

below an objective standard of reasonableness and (2) that there

is a reasonable probability that, but for his counsel's

unprofessional errors, the result of the proceedings would have

been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). Both prongs of the Strickland test must be met to

demonstrate ineffective assistance. Id. at 697. To establish

the first prong, Chi must overcome a strong presumption that his

counsels’ conduct falls within the wide range of reasonable

professional assistance. Id. at 689. It is not enough to show

that some, or even most, defense lawyers would have handled the

case differently. Green v. Lynaugh, 868 F.2d 176, 178 (5th Cir.

1989). For the second prong, Chi must show that his counsel’s

errors were so serious as to "deprive him of a fair trial, a

trial whose result is reliable." Strickland, 466 U.S. at 687.5

Because Chi is challenging a death sentence, the question is

 

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12

whether there is a reasonable probability that, absent the

errors, the jury--including an appellate court, to the extent it

independently reweighs the evidence--would have concluded that

the balance of aggravating and mitigating circumstances did not

warrant death. Id. at 695. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. 

Williams v. Taylor, 529 U.S. 362, 391 (2000). 

1. Failure to present evidence that petitioner was

remorseful

Chi's first ineffective assistance of counsel claim is that

his trial lawyers, William Harris and Paul Connor, should have

called Chi's brother, Jose Hernan Aceituno, to testify during the

punishment phase of trial. Aceituno purportedly would have

testified that Chi, following his arrest, called him and

tearfully and remorsefully confessed to causing the death of the

victim. Chi urges that this testimony was important mitigating

evidence. See Chi's Federal Habeas Pet. at 11-16.

Chi's trial counsel, however, under oath, assert that Chi

consistently instructed them not to call his brother to testify,

notably over their strong recommendation that they do so for the

very purpose of showing Chi's remorse. Moreover, Chi vehemently

denied ever making any sort of confession to his brother. In

light of Chi's instruction that Aceituno not be called to testify

and further concerned that Aceituno's testimony might be untrue

given Chi's denial of it, Chi's counsel decided not to call

Aceituno as a witness. See HR at 107-115. 

 

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13

Because Chi does not dispute any of these assertions by his

trial counsel, this ineffective assistance of counsel claim

borders on frivolous. As well stated by the Fifth Circuit: "By

no measure can [defendant] block his lawyer's effort and later

claim that the resulting performance was constitutionally

deficient." Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir.

1984). Likewise, the failure to present possibly perjured

testimony cannot give rise to an ineffective assistance of

counsel claim. A lawyer's duty to his client is "limited to

legitimate, lawful conduct compatible with the very nature of a

trial as a search for truth." See Nix v. Whiteside, 475 U.S.

157, 166 (1986).

In short, Chi has failed to demonstrate that his counsels'

performance fell below an objective standard of reasonableness by

not calling Aceituno to testify. To the contrary, the

uncontroverted evidence is that the performance of his counsel

was more than reasonable in this regard. Given the almost

irrefutable evidence of Chi's guilt coupled with all the other

evidence of his bad acts before, up to, and including trial, Chi

has likewise failed to demonstrate a reasonable probability that,

had Aceituno testified, the result of the proceedings would have

been different. Strickland, 466 U.S. at 687. Neither prong of

Strickland is thus met. This claim is denied. 

2. Failure to rebut prosecution evidence concerning future

dangerousness in a confinement setting 

 

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14

Chi's second and final ineffective assistance of counsel

claim is equally without merit. Here, Chi claims that his trial

counsel performed deficiently by not calling a fellow inmate,

Terry Ellis, to testify in favor of Chi's version of an

altercation with a prison guard, Deputy Michael Weldegebril. See

Chi's Federal Habeas Pet. at 19-23. The guard had testified that

Chi threatened him over a piece of mail. Id. at 20. After

reviewing the stated reasons by trial counsel as to why, after a

thorough investigation, the decision was made not to call Ellis,

the court readily concludes that trial counsels' performance was

more than reasonable on this issue as well. 

For example, Ellis could not rebut the portion of the

officer's testimony that Chi said to him: "Look you motherfucker, I have nothing to lose." Further, Ellis claimed that the

altercation between Chi and the officer ensued, because the

officer had a thick accent and was hard to understand. But, in

reality, the officer was quite understandable. Also, Ellis would

certainly have been impeached over his seven felony convictions. 

In addition to tainting his credibility, these convictions also

could have, based on how Ellis was in and out of prison, caused

the jury to believe that a life sentence was not really a life

sentence. Finally, this officer's testimony concerned only one

incident in a barrage of bad-act evidence presented by the

prosecution, including, an attack on a bailiff, three other jail

infractions, Chi's plan to reap revenge on a girlfriend (against

whom he had previously been physically violent), his plan to

 

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15

mutilate another woman, and his boasting to a fellow inmate about

shooting a cowering and crying second victim. See HR at 112-13. 

Against this back-drop, it was trial counsels' quite reasonable

and seemingly correct view that: "[T]he limited ability of Mr.

Ellis to contradict a portion of Mr. Weldegebril's testimony

would have only redirected the jury's attention to this

comparatively average bad act, and would have been conspicuously

impotent in its effect." Id. at 113. 

"[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable . . ." Strickland, 466 U.S. at 690. Such is the

case here. Trial counsels' performance was not deficient.

Moreover, there is no reasonable probability that, had a

convicted felon testified on this relatively minor incident, the

result of the proceedings would have been different. Id. at 687. 

Chi's second ineffective assistance of counsel claim is denied. 

C. Ground Three: The Court Reporter

In what Chi aptly describes as bizarre, he next complains

that his due process rights were violated when the court reporter

flirted with him during jury selection and caused him, in turn,

to act inappropriately. See Chi's Federal Habeas Pet. at 16-19. 

Specifically, two officers assigned to assist with security

during Chi's capital-murder trial witnessed the court reporter

and Chi making eye contact and smiling at one another. At one

point, Chi was seen seductively eating a piece of candy while

looking at her. She smiled back at him. Concerned about the

 

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16

situation, the officers conducted a thorough search of Chi's cell

and the room where voir dire was being conducted. They found a

note, in the court reporter's handwriting, under Chi's chair:

"CAN I TRUST YOU?" See HR at 74. 

The matter was brought to the attention of the presiding

judge. The judge found that there was not an issue concerning

the integrity of the record and that jury selection should

continue. Id. at 75. Because she had been a long-time employee,

the judge further asked all involved to keep the matter quiet so

her reputation would not be ruined. Id. Another court reporter

concluded the trial. See 13 RR at 68-69. Finally, the trial

judge denied Chi's motion for mistrial over this issue. Id. at

69. 

While both parties acknowledge the dearth of case law

involving an incident like this one, both parties appear to agree

that, for a constitutional violation to have occurred, some

resulting harm to Chi must be shown. For example, Chi likens the

court reporter's misconduct to prosecutorial misconduct where the

"the standard is whether the misconduct 'so infected the trial

with unfairness as to make the resulting conviction a denial of

due process.'" See Chi's Federal Habeas Pet. at 19 (quoting

Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Though

emphasizing that extrajudicial contact amongst jurors is more

serious than the incident here, respondent urges that cases even

involving that more serious scenario require "a showing that the

conduct prejudiced the rights of defendant or compromised the

 

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17

jury." See Resp't's Federal Answer at 41 (citing United States

v. Burke, 496 F.2d 373, 377-78 (5th Cir. 1974)).

Here, there is no evidence that Chi's defense was in any way

compromised by the court reporter's actions or by his actions in

response. Indeed, there is no evidence that any of the jurors

even saw the conduct in question. Consequently, this ground is

without merit. 

D. Ground Four: The Texas Death Penalty

Scheme Is Unconstitutional

Lastly, Chi urges that the death-penalty scheme in Texas is

unconstitutional under the Equal Protection Clause, because of

the lack of standards to guide prosecutors regarding whether to

seek the death penalty. See Chi's Federal Habeas Pet. at 23-28.

This argument was summarily rejected in his state-habeas

proceeding based upon a number of Texas cases holding that a

prosecutor's discretion to seek the death penalty is not

unconstitutional. See HR at 237, ¶ 2. The Supreme Court denied

certiorari in each of these cases where certiorari was sought. 

Id. Chi, however, urges that the death-penalty scheme in Texas

has recently been rendered unconstitutional by Bush v. Gore, 531

U.S. 98 (2000) and its holding that the Constitution "requires

that there be 'uniform' and 'specific' standards to prevent the

arbitrary and disparate treatment of similarly situated people." 

See Chi's Federal Habeas Pet. at 26. Though this assertion is

novel, the court is thoroughly unpersuaded that Bush v. Gore,

which involved the issue of equal protection in the election

 

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18

process, has any relevance to the constitutionality of the deathpenalty scheme in Texas. 

 VI. 

Order

For the reasons discussed herein,

The court ORDERS that the petition be, and is hereby,

denied.

SIGNED June 21, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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