LAU v. BARTOWSKI et al
Filing
19
OPINION. Signed by Judge Stanley R. Chesler on 05/22/2018. (ek)
Case 2:10-cv-05030-SRC Document 19 Filed 05/22/18 Page 1 of 42 PageID: 2601
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SIMON LAU,
Petitioner,
v.
GREG BARTOWSKI, et al.,
Respondents.
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Civ. No. 10-5030 (SRC)
OPINION
CHESLER, DISTRICT JUDGE:
I.
INTRODUCTION
Before this Court is the Petition for a writ of habeas corpus of Petitioner Simon Lau
(“Petitioner”), brought pursuant to 28 U.S.C. § 2254. (ECF No. 1). For the following reasons, the
Court denies the Petition, and declines to issue a certificate of appealability.
II.
BACKGROUND
Petitioner, along with his six co-defendants, was convicted of four counts of purposeful
and knowing murder, two counts of attempted murder, five counts of felony murder, two counts
of kidnapping, one count of burglary, one count of attempted arson, and various weapons offenses.
(ECF No. 17-3 at 3–4.) Petitioner received an aggregate sentence of four life terms plus forty
years, with 140 years of parole ineligibility. Id. The following factual background is taken from
the New Jersey Supreme Court’s opinion, affirming the Appellate Division decision on direct
appeal: 1
1
The Appellate Division, on direct appeal, had previously consolidated six appeals of the
co-defendants.
1
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Defendants are members of a Chinese gang known as Fuk Ching.
The gang’s activities included extortion, arson, and loan sharking.
At the time of the murders the gang derived profits from smuggling
illegal Chinese aliens into the United States. The immigrants
purportedly paid between $20,000 and $30,000 for transportation
and were required to pay back approximately $1,000 a month to the
gang. Many, if not most, of the immigrants took low-paying jobs
and were forced to live as cheaply as possible, often in gang-run
“safe houses.” If the immigrants did not repay the debt, they were
held captive and sometimes beaten. Some aliens became involved
in the gang’s criminal activities.
In furtherance of the gang’s operations, a ship carrying hundreds of
illegal Chinese immigrants was due to arrive off the coast of
Massachusetts in 1993. Rival members within the Fuk Ching gang
decided that they would kill the gang’s leader and other highranking members and thereby take control of those expected
immigrants. On May 24, 1993, the rivals attempted to carry out their
plan by attacking a safe house in Teaneck, New Jersey. There were
four gang members and one smuggled alien living in the house, and
defendants shot or stabbed all of the occupants (one occupant was
actually shot outdoors as he attempted to escape harm). Four of the
victims of the attack died; one victim, the alien, survived.
Having received descriptions of the getaway van seen by witnesses,
the police arrested all defendants (except defendant Lau) a short
time after the shooting at a roadblock near the George Washington
Bridge. The police retrieved numerous weapons from defendants
and the safe house, including guns, knives, handcuffs, a container of
gasoline, and ammunition. The police also found blood-stained
clothing in the van. Defendant Lau, who had fled the murder scene
in a separate vehicle, was arrested sometime later in Florida and
extradited to New Jersey. Defendants were indicted on numerous
counts of murder, attempted murder, felony murder, kidnapping,
burglary, attempted arson, and various weapons offenses.
State v. Zhu, 761 A.2d 523, 524–25 (N.J. 2000).
The Court also relies on the facts as set forth in the opinion of the Superior Court of New
Jersey, Appellate Division, affirming the denial of PCR:
2
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At some point, there was a falling out between Fuk Ching’s leader,
Ah Kay, and another gang member, co-defendant Xin Dan Lin. As
a result, Ah Kay ordered the killing of Xin Dan Lin. Two gang
members were killed in New York, but Xin Dan Lin managed to
escape when the gun held to his head jammed. Ah Kay decided to
hide out. He left his brother Ah Wong in charge of the gang and a
safe house on Somerset Road in Teaneck. Ah Wong lived in the
house and was responsible for handling all arrangements there. At
the time of the murders, there were four gang members living in the
house along with one of the smuggled aliens. It was Ah Wong and
these four gang members who became defendants’ victims on the
evening of May 24, 1993. The alien, Lin Ling Chang, was the only
survivor. He identified defendants Xin Dan Lin, Yun Lin, Chao Lin
Feng, and Cho Lee Lin as among those who committed the murders
and who attempted to murder him.
According to Lin Ling Chang, earlier in the day, three of the four
resident gang members had left the house, leaving one gang
member, Liang Qun Guo (also a brother of Ah Kay), with Lin Ling
Chang. While Lin Ling Chang was in the kitchen, he heard the
doorbell ring. Liang Qun Guo went to the door and moments later
a number of people entered the kitchen. One of the defendants
pointed a gun at Lin Ling Chang’s head. Liang Qun Guo started to
fight with the intruders. Gunshots were fired. Both Lin Ling Chang
and Liang Qun Guo were shot. They were dragged to the basement,
tied, and duct taped.
On the evening of May 24, 1993, Ming Cheng, a member of Fuk
Ching and Ah Wong’s bodyguard, drove from New York to
Teaneck with Ah Wong and two other gang members, Yu Ping
Zhang and Guang Sheng Li. Upon their arrival, they found the
house locked, and no one answered the doorbell. Yu Ping Zhang
and Guang Sheng Li gained entrance to the house through a window
in the back. Ming Cheng went to the front door. He was not aware
of how Guang Sheng Li got inside the house.
After Ming Cheng and Ah Wong had returned to the front door, the
door opened and Ming Cheng heard a gunshot. He pushed the door
open and saw Xin Dan Lin with a gun and several other persons on
the stairs inside. He warned Ah Wong and they both ran, but in
opposite directions. Ming Cheng ran two or three blocks and hid in
some bushes. He saw Ah Wong lying on the ground with three
people standing over him and then heard some gunshots.
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Alan Tam, one of the main witnesses against defendants, was a
member of the Fuk Ching. He pled guilty in federal court to charges
related to the killings and agreed to testify at this trial. Alan Tam
testified that in early April 1993, he spent several days at an
apartment in Brooklyn where Simon Lau, Chao Lin Feng, and
Jeffrey Zhu attempted to recruit him to participate in the murder of
Ah Wong. The motivation behind this plot was to gain control of
the alien smuggling business and to strike back for the attempted
killing of Xin Dan Lin. Alan Tam met with Ah Wong four days
before the killing. He did not warn Ah Wong of the murder plot
against him.
Tu Wei Chung was also a member of the Fuk Ching gang. Like
Tam, he testified for the State pursuant to a plea agreement on
federal charges. He corroborated Tam’s testimony.
State v. Cho Lee Lin, et al., Indictment No. 94-06-0644, 2010 WL 1330272, *1–2 (N.J. Super. Ct.
Appellate Division, April 6, 2010).
Petitioner appealed his conviction and sentence and the Appellate Division affirmed the
conviction on April 5, 1999, but remanded for issues related to sentencing. (ECF No. 17-3.) On
October 4, 2000, the trial court entered an amended judgment of conviction, pursuant to the
Appellate Division decision. (ECF No.17-8 at 63.) The Supreme Court of New Jersey granted
certification on the narrow issue of courtroom security, and on October 23, 2000, the New Jersey
Supreme Court affirmed the decision of the Appellate Division on that issue. Zhu, 761 A.2d 523.
Petitioner filed a petition for post-conviction relief (“PCR”), which was denied by the PCR court
on June 1, 2006. (ECF No. 17-8 at 85.) Petitioner appealed, and the Appellate Division,
consolidating the appeals of Petitioner and his co-defendants, affirmed the denial of PCR on April
6, 2010. (ECF No. 17-11.) The Supreme Court of New Jersey denied certification on June 30,
2010. State v. Lau, 999 A.2d 461 (N.J. 2010). Petitioner then filed a habeas petition with this
Court, executed on September 23, 2010. (ECF No. 1.) The Petition raises many identical claims
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to those raised by five of his co-defendants in their respective habeas petitions, which were all
denied on the merits by the Court. See Chao Lin Fang v. Bartkowski, No. 10-5031, 2012 WL
503652 (D.N.J. Feb. 15, 2012); Yun Lin v. Bartkowski, No. 10-5489, 2012 WL 3124493 (D.N.J.
Aug. 1, 2012); Zhu v. Bartkowski, No. 10-4447, 2012 WL 3201921 (D.N.J. Aug. 1, 2012); Cho
Lee Lin v. Bartkowski, No. 10-5502, 2012 WL 3201943 (D.N.J. Aug. 1, 2012); Xin Dan Lin v.
Bartkowski, No. 10-5491 (D.N.J. Aug. 1, 2012).
Petitioner raises eight grounds for habeas relief:
1. Petitioner’s rights to due process and an impartial jury as guaranteed by the United States
Constitution, Amendments Sixth and Fourteenth were violated due to [the] trial court’s
inadequate voir dire and deprivation of Petitioner’s statutory rights to intelligently
challenge jurors for cause and exercise peremptory challenges.
a. The jury selection procedures employed by the trial court resulted in impermissibly
cursory jury voir dire.
2. The trial court committed reversible error by denying Petitioner’s motion to voir dire the
jury regarding published prejudicial information, thereby violating Petitioner’s right to be
tried by a fair and impartial jury as guarantee[d] by [the] Sixth and Fourteenth Amendments
of the United States Constitution and that of the New Jersey Constitution, 1947 Ar[t]. 1,
Par. 10.
3. The trial court erred by allowing the proceedings to be conducted in such a manner as to
deprive defendant of his right to a fair trial when the trial court consistently permitted
sheriff[’s] officers to act in such a manner as to give the jury the perception that the
defendant was guilty.
4. The trial judge erred by not granting the motion for a mistrial based on the failure of the
state to provide complete discovery following the disclosure that detective Cox had
prepared two allegedly “original” police reports concerning ballistic findings.
5. The state’s suppression of favorable evidence to defendant and knowing use of perjured
testimony is a violation of the rules of discovery and prosecutorial misconduct, thereby
violating defendant’s right to a fair trial and due process rights secured by the United States
Constitution and the New Jersey Constitution.
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a. The state’s suppression of police report evidence which was favorable and exculpatory
was a violation of the rules of discovery, prosecutorial misconduct and a denial of
defendant’s right to a fair trial.
6. Petitioner was deprived of effective assistance of trial counsel when counsel failed to
exercise peremptory challenges to strike jurors, D.R., E.O.B. and A.R. [which] deprived
Petitioner the right to effective assistance of counsel, Due Process of law, and a fair and
impartial jury under the U.S. Constitution Amends, V, VI & XIV; N.J. Const. (1947) Art.
I, Pars. 1, 9, 10.
7. The defendant was denied his right to the effective assistance of counsel guaranteed by the
Sixth Amendment of the United States Constitution and Article 1 Paragraph 10 of the New
Jersey Constitution.
a. Trial counsel failed to introduce the exculpatory statement contained in Detective
Michael B. Danyo’s Affidavit for an application of a search warrant.
b. Trial counsel’s failure to object[] to the prosecutor’s erroneous statement regarding
accomplice liability resulted in the court’s re-affirmance of said erroneous instruction
to the jury.
c. Trial counsel’s failure to challenge the illegal first search of the Brooklyn apartment
resulted in the admission of illegally obtained evidence.
d. Trial counsel failed to move that defendant’s trial be severed from his codefendant’s
trial.
e. Trial counsel failed to exercise peremptory challenges of bias jurors.
f. Trial counsel’s failure to preserve juror questionnaires, contrary to N.J.S.A. 2B:20-12,
deprived defendant of his ability to properly challenge the unconstitutional jury
selection.
g. Trial counsel failed to move to have the jury sequester[ed].
h. The conduct of the sheriff’s officers violated defendant’s right to effective assistance
of counsel, by inducing and directly contributing to many of the trial counsel’s errors.
i. Defense counsel failed to investigate a blood stained piece of glass found in the
underwear of one of the state’s witnesses, Ah Mee Liu[.]
j. Trial counsel failed to adequately impeach the testimony of Allan Tam and Henry Tu.
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8. The trial court’s charge on accomplice liability which failed to adequately convey to the
jury in any or all of the offense charged, the accomplice could be found guilty to a lesser
degree then the principal, based on the accomplice’s own individual mental state, eroded
the prosecution’s burden to prove guilty beyond a reasonable doubt, rendered Petitioner’s
trial fundamentally unfair in violation of his right to a fair trial and due process under the
United States Constitution Amendments Sixth and Fourteenth. (Con[s]t. Amends VI, XIV).
(ECF No. 1 at 12–62.)
This Court ordered Respondents to file a Limited Answer, addressing only the issue of
timeliness of the Petition and exhaustion of the claims in the Petition. (ECF No. 2.) Respondents
submitted a Limited Answer on May 27, 2011, conceding that the Petition was timely, but stating
that a number of claims were unexhausted and procedurally barred. (ECF No. 11.) Petitioner then
filed a Limited Reply on July 11, 2011, arguing those claims were not procedurally barred. (ECF
No. 15.) On July 20, 2011, the Court ordered Respondents to file a Supplemental Answer. (ECF
No. 16.) Respondents submitted a Supplemental Answer on August 12, 2011, in which they argue
that Grounds One and Five are procedurally barred from habeas review, and the remaining claims
lack merit. (ECF No. 17.) Petitioner filed a Reply on August 28, 2011, in which he argues, among
other things, that his claims are not procedurally barred. (ECF No. 18.)
III.
LEGAL STANDARD
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, 567 U.S. 37, 40–41
(2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28
U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the
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determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772–73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(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.
28 U.S.C. § 2254(d)(1)–(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
In addition to the above requirements, a federal court may not grant a writ of habeas corpus
under § 2254 unless the petitioner has “exhausted the remedies available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all federal claims to the
highest state court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This
requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173
(3d Cir. 2005)).
Even when a petitioner properly exhausts a claim, a federal court may not grant habeas
relief if the state court’s decision rests on a violation of a state procedural rule. See Johnson v.
Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule
is “independent of the federal question [presented] and adequate to support the judgment.” Leyva,
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504 F.3d at 365–66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v.
Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). If a federal
court determines that a claim has been defaulted, it may excuse the default only upon a showing
of “cause and prejudice” or a “fundamental miscarriage of justice.” Leyva, 504 F.3d at 366 (citing
Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally
defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See
Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir.
2005).
IV.
DISCUSSION
A. Ground One: Jury Voir Dire
In Ground One, Petitioner argues his constitutional rights were violated based on the trial
court’s inadequate jury voir dire. (ECF No. 1 at 13.) He explains that prospective jurors were
provided a questionnaire which the judge substantially reduced to speed-up jury selection. Id. at
14. He further explains that the judge interceded during voir dire with leading questions, spent
less than a minute conducting voir dire on each prospective juror, and ignored counsel’s
objections. Id. at 14–19. Petitioner specifically points to the circumstances in which sitting jurors
D.R, E.O., and A.R. were qualified, and argues the judge failed to properly follow-up on
questionable answers in their questionnaires. Id. at 17–22.
The Appellate Division, on appeal from the denial of PCR, rejected this claim as
procedurally barred under N.J. Ct. R. 3:22-4. (ECF No. 17-11 at 9–10.) The Court will,
nevertheless, address this claim on the merits.
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The Sixth Amendment right to a jury trial guarantees a criminal defendant the right to a
“fair trial by a panel of impartial, indifferent jurors,” Irvin v. Dowd, 366 U.S. 717, 722 (1961)
(internal quotation marks omitted), and that right is extended to state criminal trials through the
Due Process Clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 148–49
(1968). “An impartial jury consists of nothing more than jurors who will conscientiously apply
the law and find the facts.” Lockhart v. McCree, 476 U.S. 162, 163 (1986); see also United States
v. Tindal, 357 F. App’x 436, 438 (3d Cir. 2009) (explaining that “[j]urors are presumed to be
impartial”). Further, the Supreme Court has explained that “[n]o hard-and-fast formula dictates
the necessary depth or breadth of voir dire[,]” instead, “[j]ury selection, we have repeatedly
emphasized, is particularly within the province of the trial judge.” Skilling v. United States, 561
U.S. 358, 386 (2010) (internal citations and quotations omitted). To violate the Sixth Amendment,
it does not suffice that the trial court failed to ask questions during voir dire that “might be useful”;
rather, the “trial court’s failure to ask these questions must render the defendant’s trial
fundamentally unfair.” Id. at 387 n.20.
The Court, having reviewed the excerpts of voir dire with respect to jurors D.R, E.O., and
A.R., as well as the provided copies of their questionnaires, cannot say that the voir dire rendered
the trial fundamentally unfair. 2 Juror D.R. indicated on the questionnaire that she had read or
heard of the case previously, and during voir dire, she testified: “I really don’t know” and “I don’t
know” in response to questioning related to giving the testimony of law enforcement the same
weight as other witnesses. (ECF No. 17-8 at 100–02). With further prompting by the judge, she
2
For citations to the trial transcript, this Court will refer to the docket of Petitioner’s codefendant, Xin Dan Lin, Civ. No. 10-5491 (DMC), in which Respondents attached the trial
transcripts to their response to Xin Dan Lin’s habeas petition. When citing to the docket of Xin
Dan Lin, this Court will place “Lin, 10-5491”, preceding the citation.
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ultimately agreed she could treat all witnesses the same. 3 (Id. at 101.) Counsel sought to remove
her and the judge denied the request. Juror E.O. was questioned after she indicated on the
questionnaire that the defendants’ immigration status would affect her ability to be impartial. (Id.
at 118.) Again, with further prompting by the judge, she indicated that she could be fair and
impartial. 4 (Id.) Finally, juror A.R. stated that she had a brother who was murdered and the suspect
3
During D.R.’s voir dire, the following exchange took place between her and the trial court:
Trial Court:
D.R.:
Trial Court:
D.R.:
Trial Court:
D.R.:
Trial Court:
D.R.:
Trial Court:
D.R.:
Trial Court:
D.R.:
Now, [] do you know of any reason why you could not be a fair and
impartial juror in this matter?
No.
...
Now, in this case certain law enforcement officials will be testifying.
Would you tend to give their testimony and their credibility the same
weight as you would other witnesses who testify, tend to give him
greater weight or tend to give them lesser weight?
I really don’t know.
...
But can you treat him [law enforcement] the same as you would any other
witness until after the testimony comes in until you have to pick and choose
as to who you believe or don’t believe and where the facts lie?
I don’t know. I’ve never -- I don’t know.
The question is, can you understand -I understand what you’re asking. I guess I would have to be in that situation.
Well, right now, so when this witness comes on and can you treat all of
those witnesses the same way and decide in weighing their testimony,
determine their credibility?
I would hope so.
And you believe you can do so?
I think so.
(ECF No. 17-8, at 100–02.)
4
The exchange between the trial court and juror E.O. went as follows:
Trial Court:
E.O.:
Trial Court:
E.O.:
Trial Court:
Miss O’Brien, do you know of any reason why you could not be a fair and
impartial juror in this matter?
No, except there was one question there.
What was that?
About the legal.
The illegal immigrants?
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was an illegal alien, but she also indicated that she could be impartial. 5 (Id. at 138.) While the
judge’s questioning does appear somewhat leading, the Court does not find the error to be of
constitutional magnitude so as to render the trial fundamentally unfair. See Skilling, supra, 561
U.S. 387 n.20. The judge also instructed the jury, on more than one occasion, of their responsibility
to assess the evidence without bias or prejudice. (See, e.g., Lin, 10-5491, ECF 12-33 at 21.)
Accordingly, while it may have been helpful for the judge to conduct more extensive voir dire, the
E.O.:
Trial Court:
E.O.:
Trial Court:
E.O.:
Trial Court:
E.O.:
Trial Court:
E.O.:
Yes.
And that would affect your· ability to be fair and impartial?
Yes.
In what way?
Just it denotes it is illegal and I don’t believe people should come into the
country illegally.
I don’t think anybody could argue that position. The question is, would that
fact affect your ability to be fair and impartial about these charges?
No.
You could decide these charges based upon what you hear in this
courtroom?
Yes.
(ECF No. 17-28 at 117–18.)
5
The exchange between the trial court and A.R. went as follows:
A.R.:
Trial Court:
A.R.:
Trial Court:
A.R.:
Okay. There was something on the questionnaire about illegal aliens.
Right. There may be some testimony that some of the defendants are illegal
immigrants or illegal aliens , certain terms are used. Would that affect your
ability to be fair and impartial . . .?
I don’t think that it would affect my ability to decide the guilt or innocence,
but I need to let you know that a brother of mine was murdered in August
of ’94, and they do have a suspect and he is an illegal alien, I do not know
that much about the case because he was residing in California . . .
Okay. You advised us of that. That wouldn’t affect your ability to decide
whether each one of these defendants is guilty or innocent?
No, because I don’t plan to get involved in that case at all.
(ECF No. 17-8 at 138.)
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Court is satisfied that the voir dire was adequate to ensure the impartiality of the jurors. Therefore,
this claim is denied.
B. Ground Two: Media Coverage
In Ground Two, Petitioner states that the trial court failed to properly voir dire the jurors
regarding improper media influence. (ECF No. 1 at 24.) He explains that there were numerous
“lurid and tabloid-like” media accounts of the trial, including articles related to the weakness of
defendants’ case. (Id. at 25.)
The Appellate Division, on direct appeal, first laid out the facts relating to the claim and
then denied it on the merits:
Because there had been pretrial publicity of the case, the trial judge
incorporated in his jury selection questionnaire a number of
questions that probed the prospective jurors’ awareness of and/or
exposure to such publicity and, if so, whether the publicity had led
to their having formed an opinion about the case. He also gave
publicity-related warnings during the selection process and
periodically throughout the trial.
During the selection process, an article appeared in the local
newspaper regarding a hunger strike defendants engaged in to
protest alleged abuses against them by the Sheriff's office. The trial
judge refused a request to voir dire the prospective jurors about the
article but did, as it had previously, caution the jurors not to listen to
any media accounts on TV or radio and not to read any newspaper
articles regarding the case. He specifically warned the panel about
the article in that day’s paper and reminded them that the case had
to be decided based on the evidence presented in the courtroom, not
on what was printed in a newspaper.
[The court listed other instances of media coverage.]
...
[The trial judge] denied defendants’ request for a mistrial but
granted the alternative request to dismiss [a] juror. During argument
on the application, the prosecutor asserted, “[y]ou’re just letting
them win. We started with fifteen when we should have had sixteen.
We lost one. We’re going to have one alternative now?”
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We cannot be sure, but it may have been this comment which
prompted the trial judge to state the next day, in the face of yet more
publicity, “[t]here are not going to be any more jury voir dires.”
...
In essence, the trial judge, though troubled by the then flood of
publicity, viewed the articles, for the most part, as extraneous to the
case and not containing any evidential or prejudicial material. In
light of his prior admonitions to the jury concerning publicity about
the case, the judge found no need to go through another round of
voir dires. We think his reasoning for not doing so is sound and find
no basis for interfering in the exercise of his discretion.
More troublesome, however, is the judge’s handling of an article
that appeared in the Record on December 5, 1995. When the jury
was excused on December 4, 1995, it was not cautioned about news
articles, although it had been so cautioned periodically throughout
the trial. The article that appeared the next day in the Record was
placed on pages one and five of the local section and bore the rather
innocuous headline “Defense arguments begin in gang case.” On
page one, the article stated that two of the defendants had not
presented a defense but that codefendant Zhu had called five
witnesses in an attempt to show that he was “an unwitting
bystander” who had left Boston in May to see a concert.
...
[T]he article also reported that the trial judge had determined,
following a mid-trial voluntariness hearing, that the defendants’
statements could be used at trial should they testify because the
allegations that the police had beaten and coerced them were false.
Specifically, the article stated:
None of the remaining three defendants is expected
to take the stand in the wake of Judge William C.
Meehan’s decision that the statements the men gave
to police could be used against them. Last week,
defense attorneys had argued that the defendants
were beaten and coerced by police into making those
statements . . . But Monday morning, Meehan
decided the accusations were false and the statements
were admissible.
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According to summaries of those statements, which
likely will never be heard by the jury, four of the
defendants admitted to being at the scene, but none
said he killed anyone. Dan Xin Lin said he pointed
his Uzi at one of the injured victims, but that the gun
failed. Chao Lin Feng said he was offered $100,000
to participate in the revenge killings, while Jeffrey
Zhu admitted he drove four of the defendants to
Teaneck and had been told to go upstairs in the house
to serve as a lookout.
Meanwhile, one defendant, Cho Lee Lin, said he had
been held hostage in the house for a month and, when
he heard the shots, crawled out a window and hid in
the van. Another, Yun Lin, said he rode in the van,
but that it never stopped and he never saw any
weapons or blood.
The sixth defendant, Simon Lau, who was arrested in
Florida this year, never made a statement to police.
A seventh suspect, Shing Chung, remains at large.
The recitation at the end of the article of defendants’ police
statements casts this article in a different light from all of the others.
Though the statements could have become evidential, albeit with
limiting instructions, they did not since defendants chose not to
testify. The December 5, 1995 article, thus, contained evidence that
was never presented to the jury. The potential for prejudicial jury
taint, then, was far more serious than with the prior articles.
Nonetheless, the trial judge did no more than state “I’m not going to
do anything on it. When the jury comes in . . .I will remind them to
make sure they don’t read any articles on it. . . .”
...
A defendant’s right to be protected from prejudicial trial publicity
arises from the State and federal constitutional right to a fair and
impartial jury. U.S. Const. amends. VI, XIV; N.J. Const. of 1947,
art. I, para. 10. See, e.g., Irvin v. Dowd, 366 U.S. 717, 722, 81 S.
Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961); State v. Feaster, 156
N.J. 1, 50 (1998); State v. Harvey, 151 N.J. 117, 210 (1997); State
v. Bey, 112 N.J. 45, 75 (1988); State v. Williams, 93 N.J. 39, 59-62
(1983). We observe, however, that this case does not involve the
type of saturated media coverage that creates a presumption of
prejudice to a defendant. See State v. Biegenwald, 106 N.J. 13, 33–
35 (1987). Neither does the record establish actual jury taint or
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actual exposure to extraneous influences (such as jury misconduct
or influence by outside sources) which requires a searching voir dire
of the taint and its impact upon the jurors. See State v. Bisaccia,
N.J. Super. (1999); State v. Wormley, 305 N.J. Super. 57, 68–70
(App. Div. 1997), certif. denied, 154 N.J. 607 (1998).
Moreover, defendants are not entitled to jurors who are totally
ignorant of the facts and issues of their case. State v. Harvey, supra,
151 N.J. at 211. As observed by the United States Supreme Court,
“[i]n these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the
interest of the pubic in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression or
opinion as to the merits of the case . . . [i]t is sufficient if the juror
can lay aside his impression or opinion and render a verdict based
on the evidence presented in court.” Irvin v. Dowd, supra, 366 U.S.
at 722-23, 81 S. Ct. at 1642–43, 6 L. Ed. 2d at 756.
On the other hand, “a defendant is entitled to a jury that is free of
outside influences and will decide the case according to the evidence
and arguments presented in court in the course of the criminal trial
itself.” State v. Williams, supra, 93 N.J. at 60. And see Sheppard
v. Maxwell, 384 U.S. 333, 351, 86 S. Ct. 1507, 1576, 16 L. Ed. 2d
600, 613 (1966). The trial judge, therefore, must take such action as
is necessary to assure that the jurors have not become prejudiced as
a result of facts which “‘could have a tendency to influence the jury
in arriving at its verdict in a manner inconsistent with the legal
proofs and the court’s charge.’” State v. Scherzer, 301 N.J. Super.
363, 486 (App. Div.), certif. denied, 151 N.J. 466 (1997) (quoting
Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). “The test is ‘not
whether the irregular matter actually influenced the result but
whether it had the capacity of doing so.’” Scherzer, supra, 301 N.J.
Super. at 486 (quoting Panko, supra, 7 N.J. at 61).
...
Here . . . the trial judge denied defendants’ motion to voir dire the
jurors following the December 5, 1995 article. In doing so, he did
not conduct the two-part analysis required under [State v. Bey, 112
N.J. 45 (1988)]. Indeed, he seems to have engaged in no analysis of
the circumstances. We do that now.
To begin with, we are convinced that it is only defendants’ police
statements that might be prejudicial should the jurors have learned
of them through the news articles. See State v. Bey, supra, 112 N.J.
at 84. And see Marshall v. United States, 360 U.S. 310, 79 S. Ct.
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1171, 3 L. Ed. 2d 1250 (1959) (jurors exposure to newspaper’s
articles revealing defendant’s prior criminal record required new
trial). But reference to those statements was at the end of the article
and located on a continued page. Moreover, there is no indication
in the caption of the article that such information might be found
therein. In addition, the statements were not per se inadmissible and
would have been used by the State to impeach defendants had they
testified. See State v. Bey, supra, 112 N.J. at 85 n. 25 (“[w]hen the
allegedly prejudicial information, or its substantive equivalent, has
been or will be admitted into evidence, the danger of actual
prejudice to the accused may be greatly lessened.”).
Moreover, for most of the defendants, the statements were not
incompatible with the general thrust of the defense. The defense
proffered at trial, generally, was that the State’s evidence was
suspect and that, if the jury were to conclude that they were at the
scene, they were not involved in purposeful or knowing murders.
We recognize that the reported statements of Chao Lin Feng and
Yun Lin might seem contradictory to their trial defense in that each
seemed to argue at trial that they were mistakenly identified as
perpetrators, either as principle or accomplice, whereas their
statements placed each at the scene. However, the statements, even
if learned of by the jurors, pale in comparison to the overwhelming
evidence properly presented to the jury. We cannot see how
knowledge of them could have, therefore, been prejudicial.
In any event, we are satisfied the second step of the Bey analysis
was not established. Unlike the situation presented in Bey where
the highly prejudicial information had been the subject of repeated
coverage in the press (at least five newspaper articles), 112 N.J. at
79–80, 90, the complained-of material here was published only
once. It received no prominence. Indeed, as we have said, the
reported statements were located in the middle of the New Jersey
section of the paper at the end of an otherwise innocuous article.
None of the objectionable material was even hinted at in the
headline. Hence, the extent, notoriety and prominence of the media
coverage afforded this material militates against a finding that a
repeated publicity-warned juror was exposed to it. Compare
Sheppard v. Maxwell, supra, 384 U.S. at 356–57, 86 S. Ct. at 1519,
16 L. Ed. 2d at 616–17.
We also take note of the fact that this jury seems to have rather
conscientiously weighed and analyzed the evidence. The acquittals
of the arson felony-murders, the kidnapping felony murders of
Liang Wang Guo, Yu Ping Zhang, Guang Sheng Li, and the
possession of a defaced .25 caliber Raven Arms semi-automatic
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revolver, reflect that. United States v. Faulkner, 17 F.3d 745, 764–
65 (5th Cir.), cert. denied, 513 U.S. 870, 115 S. Ct. 193, 130 L. Ed.
2d 125 (1994) (fact that jury returned mixed-verdict may be
indicative of a fair consideration of the evidence). Cf. State v.
Bauman, 298 N.J. Super. 176, 209 (App. Div.), certif. denied, 150
N.J. 25 (1997) (fact that defendant was acquitted on three counts
indicates that defendant was not prejudiced by misconduct in
prosecutor’s summation).
Therefore, while it might have been better had the trial judge
acceded to the request to voir dire the jurors, we are convinced the
failure to do so was not error requiring a reversal.
(ECF No. 17-3 at 15–33.)
As noted earlier in the Opinion, the Constitution provides that an accused has the right to
an impartial jury. U.S. Const. Amend. VI. “The theory of our [trial] system is that the conclusions
to be reached in a case will be induced only by evidence and argument in open court, and not by
any outside influence, whether of private talk or public print.” Skilling, 561 U.S. at 378 (internal
citation and quotations omitted). Nevertheless, Supreme Court case law “cannot be made to stand
for the proposition that juror exposure to . . . news accounts of the crime . . . alone presumptively
deprives the defendant of due process. Prominence does not necessarily produce prejudice, and
juror impartiality, we have reiterated, does not require ignorance.” Id. at 380–81 (internal citation
and quotations omitted) (emphasis in original). See also Dowd, 366 U.S. at 722 (“It is not required,
however, that the jurors be totally ignorant of the facts and issues involved . . . scarcely any of
those best qualified to serve as jurors will not have formed some impression or opinion as to the
merits of the case”).
The Supreme Court has explained that where pretrial publicity is at issue, “primary reliance
on the judgment of the trial court makes good sense . . . [because] the judge of that court sits in the
locale where the publicity is said to have had its effect and brings to his evaluation . . . his own
perception of the depth and extent of news stories that might influence a juror.” Mu’Min v.
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Virginia, 500 U.S. 415, 427 (1991). Mid-trial-publicity can render a trial fundamentally unfair,
where the “proceedings . . . [are] entirely lacking in the solemnity and sobriety to which a defendant
is entitled in a system that subscribes to any notion of fairness”. Murphy v. Florida, 421 U.S. 794,
799 (1975). See, e.g., Estes v. Texas, 381 U.S. 532, 535 (1965) (finding defendant’s due process
rights were violated where his trial was conducted in a circus-like atmosphere); Sheppard v.
Maxwell, 384 U.S. 333, 355 (1966) (finding defendant was deprived of a fair trial where “bedlam
reigned at the courthouse during the trial and newsmen took over practically the entire courtroom,
hounding most of the participants in the trial, especially [defendant].”).
The state court’s rejection of this claim was neither contrary to nor an unreasonable
application of Supreme Court precedent. First, as the state court notes, the pre-trial questionnaire
incorporated questions to determine the prospective juror’s exposure to media and trial publicity,
and the jurors, during voir dire, expressed that they could be fair and impartial. Second, the record
reflects that the judge warned the jurors, on multiple occasions, to avoid trial publicity. (See, e.g.,
Lin, 10-5491, ECF Nos. 12-24 at 5, 12-28 at 8, 12-33 at 18); see also Weeks v. Angelone, 528
U.S. 225, 234 (2000) (“A jury is presumed to follow its instructions”); compare Sheppard, 384
U.S. at 353 (in which “the judge simply repeated his ‘suggestions’ and ‘requests’ that the jurors
not expose themselves to comment upon the case.”).
In Petitioner’s reply brief, he relies on Sheppard, which he claims is “materially
indistinguishable” from the circumstances surrounding his trial. (ECF No. 18 at 18–19.) The
Court previously denied the identical claim when raised by Petitioner’s co-defendant and this
Court agrees with that analysis. The Court explained there:
Sheppard was a § 2254 case brought by Dr. Sam Sheppard who was
indicted for murdering his wife and who faced the death penalty.
The Supreme Court ruled that the pretrial and trial publicity
deprived Sheppard of a fair trial. However, Sheppard is factually
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distinguishable, in that Sheppard faced the death penalty; the judge
merely requested or suggested that the jury refrain from reading,
watching or listening to reports about the case; the judge allowed the
newspapers to publish the names and addresses of jurors, who were
bombarded with press and letters; three months before trial, a public
inquest was televised, where Sheppard was examined for five hours
without counsel and the inquest “ended in a public brawl,” id. at
354; the trial began two weeks before a hotly contested election at
which both the Chief Prosecutor and the judge were candidates for
judgeships; “bedlam reigned at the courthouse during the trial and
newsmen took over practically the entire courtroom,” id. at 355, and
a press table was set up inside the bar; “[p]articipants in the trial,
including the jury, were forced to run a ga[u]ntlet of reporters and
photographers each time they entered or left the courtroom,” id.; and
[m]uch of the material printed or broadcast during
the trial was never heard from the witness stand, such
as the charges that Sheppard had purposely impeded
the murder investigation and must be guilty since he
had hired a prominent criminal lawyer; that Sheppard
was a perjurer; that he had sexual relations with
numerous women; that his slain wife had
characterized him as a “Jekyll–Hyde”; that he was “a
barefaced liar” because of his testimony as to police
treatment; and finally that a woman convict claimed
Sheppard to be the father of her illegitimate child. As
the trial progressed, the newspapers summarized and
interpreted the evidence, devoting particular
attention to the material that incriminated Sheppard,
and often drew unwarranted inferences from
testimony. At one point, a front-page picture of Mrs.
Sheppard’s blood-stained pillow was published after
being ‘doctored’ to show more clearly an alleged
imprint of a surgical instrument. Id. at 356–57.
The facts in this case regarding prejudicial publicity pales in
comparison to the media circus that occurred in and outside the
courtroom in Sheppard. Moreover, the daily assault of media and
press coverage with highly prejudicial and non-evidentiary,
inflammatory information, to the point that even jurors were
included in the media scrutiny, is factually distinguishable from this
case.
Zhu, 2012 WL 3201921, at *20–21.
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Here, while there were multiple articles published about the trial, the judge’s instructions
regarding media influence, coupled with the fact that the articles appeared only sporadically,
demonstrate that these facts simply do not rise to the level of those in Sheppard. Because the state
court’s rejection of this claim does not violate clearly established federal law, nor was it an
unreasonable application of Supreme Court precedent, this claim is denied.
C. Ground Three: Courtroom Security
In Ground Three, Petitioner argues that the excessive security measures enacted by the
Bergen County Sherriff’s Office during trial gave the jury the impression that Petitioner and his
co-defendants were guilty. (ECF No. 1 at 27.) In support of his claim, he asserts, among other
things, that officers stood directly behind each defendant throughout the trial, defense counsels’
briefcases and notes were searched, the defendants were woken up at 5:00 a.m. for court
appearances, were strip-searched and verbally and physically assaulted by sheriff’s officers, and
the jury was not permitted to walk directly to and from the jury box. (Id. at 27-32.) The New
Jersey Supreme Court first laid out the facts surrounding the claim, and then affirmed the decision
of the Appellate Division, explaining:
Against the background of the indictment and the gang’s alleged
internecine rivalries, the Bergen County Sheriff’s Office proposed
certain high-security procedures to be implemented at trial. Frank
Benedetto, a captain with that office, outlined the procedures in a
May 8, 1995, memorandum to the Sheriff[:]
...
The Bergen County Sheriff’s Department’s standard
operating procedure for high security trials will be
implemented in reference to the State of New Jersey
vs. [Jeffrey Zhu, et al.] trial.
A supervising officer will be assigned to oversee the
security detail. An appropriate amount of officers
will be assigned to address all participants, the judge,
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the jury, defendants, defense
prosecutor and the general public.
attorneys,
the
...
The courtroom in question will be searched on a
daily basis prior to its opening, [and] it will be closed
and locked during lunch. All participants, including
the general public will have to pass through
mangetometer-type [sic] searches. All packages and
briefcases will have to be opened for examination.
...
On May 22, 1995, the trial court conducted a hearing during which
defense counsel questioned Captain Benedetto regarding the
proposed plan.
...
Captain Benedetto explained that the heightened security plan was
necessary because: first, the Sheriff’s Office believed that an
organized criminal group had threatened the lives of one or more
defendants; second, there was a possibility that a family member of
the judge, his staff, or the jurors might be held hostage and a family
member of that hostage would be compelled to smuggle a weapon
into the courtroom in exchange for the hostage’s safety; and third, it
might be possible for someone to bypass the security checkpoints at
the two main entrances because of the large number of other
entrances to the courthouse.
...
The United States Supreme Court has held that the deployment of
security personnel in a courtroom is not inherently prejudicial.
Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525
(1986). In Holbrook, four uniformed state troopers sat in the front
row of the spectators’ section of the courtroom to supplement the
customary security force (six defendants were on trial in Holbrook;
only one defendant appealed). Id. at 562, 106 S. Ct. at 1342, 89 L.
Ed. 2d at 530. The jurors’ responses to voir dire indicated that the
presence of the four troopers would not affect the defendants’ ability
to receive a fair trial. Id. at 565, 106 S. Ct. at 1344, 89 L. Ed. 2d at
532. The Supreme Court upheld the defendant’s conviction,
concluding that “conspicuous, or at least noticeable, deployment of
security personnel in a courtroom during trial is [not] the sort of
22
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inherently prejudicial practice that, like shackling, should be
permitted only where justified by an essential state interest specific
to each trial.” Id. at 568-69, 106 S. Ct. at 1345–46, 89 L. Ed. 2d at
534. Writing for the Court, Justice Marshall articulated the
appropriate inquiry whenever a courtroom arrangement is
challenged as inherently prejudicial: “[W]hether ‘an unacceptable
risk is presented of impermissible factors coming into play[.]’” Id.
at 570, 106 S. Ct. at 1346–47, 89 L. Ed. 2d at 535 (citation omitted).
Defendants argue that the Holbrook standard has been satisfied here,
namely, that the heightened security plan posed an unacceptable risk
that impermissible factors prejudiced the jury. Defendants further
contend that the trial court abdicated its responsibility by
surrendering control of the courtroom to the Sheriff. Additionally,
defendants assert that numerous confrontations between Sheriff’s
officers and defense counsel contributed to an unacceptable trial
atmosphere and impermissibly infringed on their right to counsel.
The State counters by asserting that the trial court’s decision
permitting the enhanced security plan constituted an exercise of
sound discretion and did not deny defendants a fair trial.
We conclude that the security plan did not pose an unacceptable risk
of unfairness. Holbrook, supra, 475 U.S. at 570, 106 S. Ct. at 1346–
47, 89 L. Ed. 2d at 535. Our reasons are similar to those noted by
the Appellate Division:
First, at no time was a finding made, or an accusation brought, that
extra security measures were needed because of the conduct,
character, or prior record of the defendants. Nothing was presented
to the jury that would have led to this conclusion. That is, the extra
security was needed purportedly to protect defendants, and everyone
else involved in the trial, from threats from outside parties-not to
protect anyone from the defendants. Nothing ever occurred during
trial that would have caused the jury to conclude otherwise. Second,
all prospective jurors were asked in their questionnaires whether
they understood that increased security measures, including the
search of all persons entering the courtroom, had nothing to do with
the guilt or innocence of defendants. Third, the patent, and
unacceptable, hostility displayed towards the defense attorneys was,
for the most part, out of the presence of the jury, and not in the
courtroom itself.
...
Common experience informs us that citizens have become
accustomed to the presence of security personnel in most public
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places, including schools. Members of the public pass through
metal detectors and have their bags inspected at airports,
courthouses, and elsewhere as part of the everyday precautions now
tolerated in a free society. Such common practices help prevent
jurors from drawing any undue inferences at the sight of similar
security measures in a courthouse setting. See Holbrook, supra, 475
U.S. at 569, 106 S. Ct. at 1346, 89 L. Ed. 2d at 535 (observing,
“[i]ndeed, it is entirely possible that jurors will not infer anything at
all from the presence of the guards”). We are thus satisfied that
implementation of the security plan in this case was not inherently
suggestive of defendants’ guilt and that the presumption of
innocence was not lost.
...
Accordingly, we hold that the heightened security measures in this
case did not deprive defendants of a fair trial before an impartial
jury. Even if we assume some slight error on the part of the trial
court in the manner in which the security plan was adopted and
implemented, or by the court’s failure to deliver an unsolicited
cautionary charge to reinforce the voir dire, such error was not
clearly capable of contributing to the verdict in view of the
overwhelming evidence of defendants’ guilt. State v. Loftin, 146
N.J. 295, 397, 680 A.2d 677 (1996).
Zhu, 761 A.2d at 525–30.
In certain circumstances, security measures can interfere with a criminal defendant’s ability
to receive a fair trial.
In Illinois v. Allen, 397 U.S. 337 (1970), the Supreme Court
recognized that requiring a criminal defendant to appear in shackles
before a jury may result in an unfair trial. As the Allen Court
explained, “[n]ot only is it possible that the sight of shackles . . .
might have a significant effect on the jury’s feelings about the
defendant, but the use of th[e] technique is itself something of an
affront to the very dignity and decorum of judicial proceedings that
the judge is seeking to uphold.” Id. at 344. Because shackling a
defendant during trial is an “inherently prejudicial practice,” it
“should be permitted only where justified by an essential state
interest specific to each trial.” Holbrook v. Flynn, 475 U.S. 560,
568–69 (1986); see also Deck v. Missouri, 544 U.S. 622, 633 (2005)
(noting that the appearance of a criminal defendant in shackles
“almost inevitably affects adversely the jury's perception of the
character of the defendant”).
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Sides v. Cherry, 609 F.3d 576, 580–81 (3d Cir. 2010). In Estelle v. Williams, 425 U.S. 501, 506
(1976), the Supreme Court held that requiring a defendant to wear “identifiable prison clothes”
violated his due process right to a fair trial. The Court explained: “The constant reminder of the
accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.
The defendant’s clothing is so likely to be a continuing influence throughout the trial that . . . an
unacceptable risk is presented of impermissible factors coming into play.” Id. at 504–05. In
contrast, in Holbrook, the Supreme Court held that the defendant’s right to Due Process was not
violated by the presence of uniformed state troopers in the first row of the spectator section of the
courtroom. 475 U.S. 560. The Holbrook Court explained that while “the sight of a security force
within the courtroom might under certain conditions create the impression in the minds of the jury
that the defendant is dangerous or untrustworthy,” it refused to find that the presence of security
guards in the courtroom was inherently prejudicial.
475 U.S. at 569 (quotation omitted).
Moreover, the Supreme Court stressed its unwillingness to make unwarranted assumptions about
how a jury would interpret police presence in the courtroom: “[T]he presence of guards at a
defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable.
Jurors may just as easily believe that the officers are there to guard against disruptions emanating
from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into
violence.” Id. at 569.
Here, the state court correctly identified Holbrook as the governing Supreme Court
precedent, and reasonably applied it to the facts. With respect to the officers standing near the
defendants, Petitioner has failed to demonstrate that this security measure is inherently prejudicial.
See Holbrook, supra, 475 U.S. at 469; see also Sutton v. Bell, 645 F.3d 752, 756 (6th Cir. 2011)
(finding that security measures consisting of four officers standing behind the defense table, one
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officer standing next to the jury, two officers standing in the balcony, and one officer at each of
the courtroom’s doors was not unconstitutional under Holbrook). Nor can this Court say that the
metal detectors and searches of the attorneys and their briefcases was enough to deem the trial
prejudicial. As explained in Holbrook, our society has become “inured” to security measures. 475
U.S. at 469. Therefore, while recognizing the discomfort that resulted from the increased security
measures, the Court does not find that the state court’s determination was an unreasonable
application of Holbrook. 6 Therefore, Petitioner is denied relief on this claim.
D. Ground Four: Failure to Disclose Evidence
In Ground Four, Petitioner asserts that the trial court erred in failing to grant a motion for
a mistrial based on the State’s failure to disclose evidence consisting of two versions of a police
report signed by Detective Cox, which was only discovered at trial. One report stated a bullet was
found in the pocket of one of Petitioner’s co-defendants, and an earlier report made no mention of
the bullet. (ECF No. 1 at 34.) He further explains that the court dismissed the error without further
inquiry. (Id. at 35.) The Appellate Division, on direct appeal, rejected the claim without extended
discussion. (See ECF No. 17-3 at 6.)
Petitioner’s claim appears to implicate his rights under Brady v. Maryland, 373 U.S. 83
(1967). Under Brady, the State bears an “affirmative duty to disclose [material] evidence favorable
to a defendant.” Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady, 373 U.S. 83.)
“[E]vidence is material only if there is a reasonable probability that, had the evidence been
6
To the extent Petitioner is also seeking relief from alleged abuse by prison guards, this
claim is not cognizable under 28 U.S.C. § 2254. See Heck v. Humphrey, 512 U.S. 477, 481 (1994)
(“habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of
his confinement and seeks immediate or speedier release”); Docken v. Chase, 393 F.3d 1024, 1026
(9th Cir. 2004) (“Traditionally, challenges to prison conditions have been cognizable only via [42
U.S.C.] § 1983, while challenges implicating the fact or duration of confinement must be brought
through a habeas petition.”).
26
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disclosed to the defense, the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). In Strickler v. Greene, the Supreme Court clarified that “[t]here
are three components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” 527
U.S. 263, 281–82 (1999).
Here, only the earlier report, which did not mention the bullet being found, was provided
to the defense. It was only during cross-examination of Detective Cox that the second report,
which mentioned the bullet, was revealed. (Lin, 10-5491, ECF No. 12-73 at 53.) It cannot be
argued that finding a bullet on one of the co-defendants amounts to exculpatory evidence. Thus,
Petitioner’s argument must be that failure to disclose the report prevented him from sufficiently
impeaching Detective Cox. This however, is belied by the record. After the discrepancy in the
reports were revealed, the defense proceeded to vigorously impeach Detective Cox, by asking
about various alterations in the reports, changes in the signature on the reports, and added
sentences. (See Lin, 10-5491, ECF No. 12-37 at 51–58, 81–94.) Beyond that, reviewing
Petitioner’s brief on direct appeal, as well as his allegations in the instant Petition, he has failed to
present any facts or reasoning to support his allegation that the outcome of the case would have
been altered by the second report. See Bagley, supra, 473 U.S. at 682. The Court simply cannot
invent those reasons for him. Therefore, this claim for habeas relief must be denied.
E. Ground Five: Prosecutorial Misconduct
In Ground Five, Petitioner argues that his due process rights were violated by the
prosecutor’s use of perjured testimony and failure to disclose exculpatory evidence. (ECF No. 1
at 36–37.) While Petitioner’s claim is not a model of clarity, he appears to argue that the prosecutor
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failed to disclose evidence of agreements entered between the federal government and three of the
State’s witnesses, Alan Tam, Henry Tu (also referred to as Tu Wei Chung) and Ming Cheng, in
exchange for their testimony. (Id.). He further states that the testimony of Ming Cheng, one of
the State’s witnesses, was known by the State to be false, but any contradicting testimony was
suppressed by the State. 7 (Id. at 38.) This claim was raised, to some degree, on Petitioner’s appeal
from the denial of PCR. The Appellate Division, on PCR, rejected the claim finding it procedurally
barred under New Jersey state law. (ECF No. 17-11 at 5.) To the extent the claim is procedurally
barred, the Court finds the claim meritless.
On the first point, the Supreme Court has held that a cooperating witness’s plea agreement
with the prosecutors must be disclosed. See Giglio v. United States, 405 U.S. 150, 154 (1972).
The Court in Giglio found a new trial was warranted where the State “failed to disclose an alleged
promise made to its key witness that he would not be prosecuted if he testified for the
Government.” 405 U.S. at 151. Here, however, it appears that the agreements between federal
prosecutors and the witnesses were, in fact, turned over to the defense. (See, e.g., Lin, 10-5491,
ECF No. 12-41 at 153–158.) The record reveals that Ming Cheng was cross-examined about
pleading guilty to two federal charges on which he was not yet sentenced and stated that he “agreed
to help the government . . . because I was hoping by helping them . . .I would receive a lighter
sentence.” (Lin, 10-5491, ECF No. 12-45 at 127.) The record and cross-examination of the three
witnesses reveals that the defense was in possession of the plea transcripts, and was adequately
7
Oddly, Petitioner’s claim states that the testimony of Ming Cheng “caused the jury to
convict Zhu”, one of Petitioner’s co-defendants, but Petitioner fails to mention himself.
Nevertheless, construing the Petition broadly, the Court will presume Petitioner meant to include
himself.
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able to reveal to the jury the extent of their cooperation with the government and their involvement
in the Fuk Ching gang. Thus, this claim lacks merit.
On Petitioner’s second point, the Supreme Court has held that due process is violated when
“false testimony used by the State in securing the conviction . . . may have had an effect on the
outcome of the trial.” Napue v. People of State of Ill., 360 U.S. 264, 272 (1959). “[A] conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside
if there is any reasonable likelihood that the false testimony could have affected the judgment of
the jury.” Bagley, 473 U.S. at 677 (internal citation and quotations omitted).
Here, however, Petitioner has failed to offer the Court anything but mere speculations that
Ming Cheng committed perjury simply because his testimony did not include any statements
supporting Petitioner’s contention that the victims were the attackers. Mere speculation that a
witness for the prosecution must have lied, simply does not trigger the analysis of Napue, Brady
and their progeny. See, e.g., Delgado v. Milgram, No. 09-3728, 2011 WL 1431904, at *14 (D.N.J.
Apr. 14, 2011). As such, this claim for habeas relief is denied.
F. Ground Six & Seven: Ineffective Assistance of Counsel
In Grounds Six, Petitioner argues that his trial counsel was ineffective for failing to use his
peremptory challenges to strike jurors D.R., E.O., and A.R. (ECF No. 1 at 40.) In Ground Seven,
Petitioner raises ten claims of ineffective assistance of counsel, some of which appear unexhausted.
(Id. at 43–53.) Many of these claims were denied by the Appellate Division on Petitioner’s appeal
from the denial of PCR as “without sufficient merit to warrant a written opinion.” Cho Lee Lin,
2010 WL 1330272, at *10. Instead, the Appellate Division, having previously cited to the standard
in Strickland, stated generally:
At the outset, we note that the State had a strong case. There were
two eyewitnesses to the massacre: Lin Ling Chan and Ming Cheng.
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They were both familiar with all defendants. Identity was not an
issue. In addition, Alan Tam and [Tu] Wai Chung, who had prior
knowledge of the conspiracy, testified for the State. Against this
background, defense counsel had little proof of arguments to counter
the evidence against defendants. From our careful review of the
record, we note that counsel vigorously participated in the trial,
cross-examining witnesses and making arguments on behalf of their
clients. Moreover, there was ample evidence of defendants’ guilt.
...
In sum, following the Strickland/Fritz standard, our review of the
record does not disclose any deficiency by any of the trial, appellate,
or PCR counsels. Further, there is overwhelming evidence that
defendants committed the crimes of which they were convicted.
Moreover, even if we assumed that, in some respects, defense
counsel’s representation of any of the defendants was deficient,
defendants failed to establish the defendants would have been found
not guilty of the charges [i]f their attorneys had handled the matter
differently.
Cho Lee Lin, 2010 WL 1330272, at *4.
The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of
Counsel for his defense.” U.S. Const. Amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate
legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel’s
assistance was so defective as to require reversal of a conviction has two components, both of
which must be satisfied. Id. at 687. First, the defendant must “show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687–88. To meet this prong, a
“convicted defendant making a claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at
690. The court must then determine whether, in light of all the circumstances at the time, the
identified errors fell “below an objective standard of reasonableness.” Hinton v. Alabama, 134 S.
Ct. 1081, 1088 (2014).
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Second, a petitioner must establish that counsel’s “deficient performance prejudiced the
defense so as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 669. To establish
prejudice, the defendant must show that “there is a reasonable probability that the result of trial
would have been different absent the deficient act or omission.” Id. at 1083. On habeas review,
it is not enough that a federal judge would have found counsel ineffective. The judge must find
that the state court’s resolution of the issue was unreasonable, a higher standard. Harrington v.
Richter, 562 U.S. 86, 101 (2011).
1. Peremptory Challenges
Petitioner argues that his trial counsel erred in failing to use his peremptory challenges.
Petitioner raised this claim on PCR and the Appellate Division rejected the claim, as indicated
above. As the Court’s previous discussion of the voir dire conducted by the trial court pointed
out, jurors D.R., E.O., and A.R. verified their ability to be impartial. While Petitioner believes that
he would have fared better had his counsel exercised peremptory challenges against these jurors,
Petitioner offers this Court no reason to conclude so. Thus, to the extent counsel made a strategic
decision not to challenge the five jurors, that decision is respected under Strickland. See Hess v.
Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998) (“Our review of ineffective assistance of counsel
claims does not permit us, with the benefit of hindsight, to engage in speculation about how the
case might best have been tried. We therefore accord counsel’s strategic trial decisions great
deference”); Harrington, 562 U.S. at 106 (“[r]are are the situations in which the wide latitude
counsel must have in making tactical decisions will be limited to any one technique or approach”)
(internal citations and quotations omitted). Thus, the state court’s denial of Ground Six was not
an unreasonable application of Supreme Court precedent and the claim is denied.
2. Failure to introduce evidence
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Next, Petitioner alleges that trial counsel failed to introduce a statement contained in
Detective Danyo’s application for a search warrant which Petitioner argues would have revealed
that the victims were in fact armed at the time of the murders. This claim appears unexhausted.
Nevertheless, the Court will deny it on the merits.
To the extent the statement would have been helpful, the underlying record provides an
abundance of evidence that the victims were murdered by Petitioner and his co-defendants. Ming
Cheng testified that Petitioner (also referred to as Four Eye Fish) was in the home, and fired two
shots at Ming Cheng. (See Lin, 10-5491, ECF No. 12-45 at 63–64.) Alan Tam and Henry Tu,
provided evidence that Petitioner was actively engaged in the planning of the murders. (See., e.g.,
Lin, 10-5491, ECF No. 12-52 at 109–11; ECF No. 12-56 at 20.) Thus, Petitioner has failed to
demonstrate that had the statement been admitted into evidence, there is a reasonable probability
that the outcome would have been different. Therefore, Petitioner is denied relief on this claim.
3. Prosecutor’s Statement.
Petitioner also argues that his trial counsel erred in failing to object to the prosecutor’s
statement on summation related to accomplice liability. (ECF No. 1 at 47.) Petitioner explains
that the statement violated New Jersey case law, specifically State v. Cook, 693 A.2d 483 (N.J.
Super. Ct. App. Div. 1996).
The alleged improper statement by the prosecutor reads:
If you find that these people worked as accomplices, if they shared
a common plan or a common design, if they took substantial steps
to accomplish that design, to reach those goals, they’re all guilty.
(Lin, 10-5491, ECF No. 12-70 at 57.)
While this claim appears unexhausted, the Court finds it meritless. First, there is nothing
to indicate that even had defense counsel objected, the judge would have ruled the prosecutor’s
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statement was improper. This is because under New Jersey state law, “[b]oth the prosecutor and
the defendant are allowed wide latitude in summation”. State v. Perry, 319 A.2d 474, 475 (N.J.
1974) (internal citation omitted). Second, the trial court expressly instructed the jurors to follow
the trial court’s instruction and to ignore any conclusory statements made by either the prosecution
or defense. (See Lin, 10-5491, ECF No. 12-71 at 13–14.) Thus, any possible error was remedied
by the trial court’ instructions. In addition, Petitioner’s reliance on State v. Cook misrepresents
the facts addressed in that case. In Cook, the ailing instructions were provided by the court, not a
comment made by the prosecutor, and the ailing instructions read very differently from the
prosecutorial comment referenced here. 693 A.2d at 488. Therefore, because Petitioner has not
demonstrated that he was prejudiced under Strickland by his attorney’s alleged deficiency, the
Court denies relief on this claim.
4. Suppression of Evidence
Petitioner next contends that his trial counsel erred in failing to move to challenge the fruit
of an illegal search that took place in an apartment in Brooklyn, where the planning of the crimes
took place. (ECF No 1 at 48.) He explains that when investigators arrived at the apartment, they
failed to notify the owner that he could refuse consent to search, and he never signed a consent to
search form. (Id.) Once again, this claim appears unexhausted, but the Court finds it meritless.
The record reflects that Mr. Leung was a part shareholder and overseer of the property in
Brooklyn. (Lin, 10-5491, ECF No. 12-13 at 10.) During a preliminary hearing, Leung testified
about the circumstances of his consent to search the apartment:
State: Now, I’m going to ask you to refer back to June 11, 1993, and ask you what
happened on that date concerning the apartment?
Leung: Two police . . . they want to go into the apartment, take a look, so I got to
be, I cannot restrict them, right, so they want to go inside and take a look.
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State: Did you allow them to take a look inside the apartment?
Leung: Yeah, I allowed them to take a look because -State: Did you have any tenant in the apartment at that time?
Leung: At that time was empty.
(Lin, 10-5491, ECF No. 12-13 at 20.)
The State also questioned Sergeant Goldrick, among others, about Mr. Leung’s consent to
search the apartment:
State: Did you ask, did you make any request of Mr. Leung when you were
conducting this interview on June 11, 1993?
Goldrick: Yes. We interviewed him, and at the end of the interview we asked if we
could, if he could consent or if we could get his consent to search the
apartment at 5413 Fifth Avenue.
State: And what, if any, response did you receive from Mr. Leung?
Goldrick: He agreed to allow us to consent, he consented to allow us to search the
apartment, rather, and as a result, he escorted myself . . . to the apartment.
State: Did you have Mr. Leung sign a Consent to Search form at that time?
Goldrick: No, I didn’t.
State: Why not?
Goldrick: I didn’t have a form available with me, and he had verbally agreed to
allow us to consent, and also prior to that he had shown me a copy of a lease
which was signed on, which on May 25, 1993 had been signed by the tenant
giving up all of his rights to the apartment.
(Lin, 10-5491, ECF No. 12-13 at 40–41.)
The Fourth Amendment ensures “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV.
Consent to a search is a well-recognized exception to the general requirements of both a warrant
and probable cause. U.S. v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011) (citing Schneckloth v.
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Bustamonte, 412 U.S. 218, 219 (1973)). The consent given must be voluntary, id. (citing Bumper
v. North Carolina, 391 U.S. 543, 548 (1968)), which can be assessed based on a range of factors.
Id. “The individual giving consent must also possess the authority to do so.” Id. (citing Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990)). Further, [a]ctual authority for a third party to consent to an
entry by police exists when the third party has common authority over a premise.” Kirley v.
Williams, 330 F. App’x 16, 19 (3d Cir. 2009) (citing United States v. Matlock, 415 U.S. 164, 171
(1974)).
As indicated in the record cited above, Leung consented to have the apartment searched,
and the defendants were no longer renting the apartment. Because Leung was both a shareholder
and the landlord of the unoccupied apartment, and because Petitioner and his co-defendants’ lease
had ended, Leung’s consent to search does not run afoul of the Constitution. Leung certainly had
common authority over the apartment at that point. See Kirley, supra, 330 F. App’x at 19.
Therefore, Petitioner has failed to demonstrate that had his counsel sought to suppress the fruits of
the search, it is reasonably probable the application would have been granted. Because this claim
fails under Strickland, the Court will deny relief on this claim.
5. Severance
Petitioner next argues that his trial counsel erred in failing to sever his trial from his codefendants’. (ECF No. 1 at 49.) Petitioner explains that because he was not arrested with his codefendants, his situation differed, such that he was prejudiced by the joint trial. (Id.)
The Appellate Division, in affirming the denial of PCR, rejected this claim, explaining:
“[Defendant] contends that his trial attorney erred by failing to seek a severance of his case.
However, there was no basis for severance. Therefore, he has failed to meet the standard for
establishing ineffective assistance.” Cho Lee Lin, 2010 WL 1330272, at *5.
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The United States Supreme Court has explained that “[i]mproper joinder does not, by itself,
violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation
only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair
trial.” United States v. Lane, 474 U.S. 438, 446 n.8 (1986); see also Cummings v. Evans, 161 F.3d
610, 619 (10th Cir. 1998) “[A] criminal defendant has no constitutional right to severance unless
there is a strong showing of prejudice caused by the joint trial”; Jenner v. Class, 79 F.3d 736, 741
(8th Cir. 1996) (holding that habeas relief based on the trial court's failure to grant severance is
only appropriate where petitioner “can establish that the failure to grant severance rendered his
trial fundamentally unfair”).
The only argument raised here, and on his briefs below, is that because Petitioner came and
left the crime scene in a separate vehicle, he should not have been tried with his co-defendants.
There is nothing to indicate that Petitioner would have fared better in a separate trial. Petitioner’s
argument is mere speculation, and without more, Petitioner has failed to show that his trial
attorney’s decision not to seek severance fell below an objective standard of reasonableness. See
Hess, supra, 135 F.3d at 908 (explaining that we accord counsel’s trial decisions great deference.”)
Therefore, the state court’s decision to dismiss Petitioner’s challenge was not an unreasonable
application of Supreme Court precedent.
6. Failure to exercise peremptory challenges
The Court has previously addressed and rejected this claim above.
7. Failure to Preserve Juror Questionnaires
Petitioner claims that his trial counsel erred in failing to seek to preserve juror
questionnaires that were destroyed by the trial court, because this hindered his ability to appeal his
claim of juror bias. (ECF No. 1 at 51.) He further explains that New Jersey state law requires that
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such questionnaires be preserved. (Id.) The Appellate Court, on appeal from the denial of PCR,
found the claim procedurally barred. Cho Lee Lin, 2010 WL 1330272, at *4. Nevertheless, putting
that aside, the Court finds the claim fails on the merits.
As evidenced from the record provided, various of the questionnaires were in fact
preserved, and the judge orally questioned each juror about his or her ability to be impartial. While
Petitioner may not have had access to some of the questionnaires, the impaneled jurors were all
questioned on the record. Accordingly, Petitioner was able to use the record of the individual juror
voir dires for appeal. Thus, Petitioner has failed to demonstrate how he was prejudiced by his
attorney’s failure to ensure the questionnaires were preserved. Because Petitioner has failed to
show he is entitled to relief on this claim, the Court will deny this claim.
8. Sequestration
Petitioner next argues that his trial counsel erred in failing to have the jury sequestered,
given the local interest in the case and notoriety of the crimes. (ECF No. 1 at 52.) Petitioner raised
this claim on PCR and the Appellate Division denied the claim without comment.
Petitioner’s claim relates to his jury voir dire claim, addressed above. The juror’s exposure
to trial publicity was monitored by the trial court, which voir dired the jury and obtained the juror’s
verifications of their impartiality. In light of those facts, Petitioner has failed to show that lack of
sequestration prejudiced him. Accordingly, Petitioner’s position that his trial counsel violated his
Sixth Amendment rights fails to meet the second prong of Strickland. Therefore, the state court’s
rejection of this claim was not an unreasonable application of Supreme Court precedent, and the
claim is denied.
9. Conduct of Sheriff’s Officers
Petitioner alleges that the excessive security measures imposed by the Sherriff’s Office
contributed to his counsel’s inability to effectively advocate for him, because counsel was
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intimidated to implicate Petitioner’s co-defendants and chose, instead, to join forces with cocounsel. (ECF No. 1 at 52.) One again, Petitioner raised this claim on PCR, and the Appellate
Division rejected the claim without comment.
Petitioner does not explain, however, how
implicating the co-defendants would have benefitted him in any way. Indeed, the record indicates
that Petitioner and his co-defendants were in a position to win or lose together. Therefore,
Petitioner has failed to demonstrate that he was prejudiced under Strickland by his attorney’s
decision to work with the rest of the defense team. Therefore, Petitioner has failed to show he is
entitled to relief on this claim and the claim is denied.
10. Failure to Investigate
Next, Petitioner alleges that his trial counsel was ineffective for failing to investigate a
blood-stained piece of glass found on Ah Mee Liu’s (also referred to as Ming Cheng) underwear.
He explains that Ah Mee Liu testified that he never entered the home where the murders took
place, yet the blood-stained glass indicated otherwise and counsel should have investigated whose
blood was on the glass, as it may have shown the witness did in fact enter the home. (ECF No. 1
at 53.) This claim, like a number of the others, appears unexhausted, as it was never raised below.
Nevertheless, the Court will deny it on the merits.
The record reflects that during cross-
examination, Officer Hornyak read from his evidence log: “A piece of broken glass with possible
blood found” and indicated that the glass fell from Ah Mee Liu’s underwear. (Lin, 10-5491, ECF
No. 12-43 at 42.) Petitioner’s argument is simply too tenuous to demonstrate he was prejudiced
by his counsel’s alleged deficiencies under Strickland. He has failed to demonstrate that there is
reasonable probability the outcome of the case would have been different had the glass been tested.
In addition, between testimony that Petitioner was involved in the planning and execution of the
murders, there was ample evidence to convict Petitioner. Thus, because the claim fails under the
prejudice prong of Strickland, the claim is denied.
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11. Failure to Impeach.
In his final claim of ineffective assistance of counsel, Petitioner argues that trial counsel
failed to properly impeach the testimony of two key State witnesses, Alan Tam and Henry Tu, and
failed to properly investigate their background and cooperation with the government. (ECF No. 1
at 53.) Petitioner raised this claim on appeal from the denial of PCR, and the Appellate Division
rejected this claim, as noted above, stating only that the defense “vigorously participated in the
trial, cross-examining witnesses and making arguments on behalf of their clients.” Cho Lee Lin,
2010 WL 1330272, at *4.
A failure to investigate claim commands a high degree of deference to counsel’s
judgments. See Strickland, 466 U.S. at 690–91; Lewis v. Mazurkiewicz, 915 F.2d 106 (3d Cir.
1990) (expressly adopting Strickland rationale for the purposes of failure to investigate analysis).
Here, the record reflects that the defense did in fact vigorously cross-examine the State witnesses
and that the agreements between the federal prosecutors and Alan Tam and Henry Tu were wellknown to the defense. See, e.g., Cox v. Ricci, No. 08-2655, 2010 WL 4387504, at *3 (D.N.J. Oct.
29, 2010) (adopting state law position that a litigant must do more “than make bald assertions that
he was denied the effective assistance of counsel[;] [h]e must allege facts sufficient to demonstrate
counsel’s alleged substandard performance” for the purposes of federal Strickland based analysis).
Because the state court decision rejecting this claim does not violate clearly established federal
law, the claim is denied.
G. Ground Eight: Improper Jury Charge
In his final ground for habeas relief, Petitioner argues that the trial court’s accomplice
liability charge failed to convey to the jury that an accomplice can be found guilty to a lesser degree
than the principal based on the accomplice’s individual mental state, and that this relieved the State
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of its burden to prove guilt beyond a reasonable doubt. (ECF No. 1 at 55.) In support of his claim,
he lays out the accomplice liability jury charge given, and states that it differed from the model
jury charge on accomplice liability. (Id. at 55–61.)
The Appellate Division, on direct appeal, denied this claim without comment. (See ECF
No. 17-3.)
A jury charge, even if inconsistent with state law, does not automatically warrant federal
habeas relief. “[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis
for habeas relief.” Estelle, 502 U.S. at 71–72. Instead a federal court must assess “whether the
ailing instruction by itself so infected the entire trial that the resulting conviction violates due
process.” Id. at 72 (internal citation and quotations omitted). A habeas petitioner must establish
that the instructional error “had [a] substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The Due Process Clause is
violated only where “the erroneous instructions have operated to lift the burden of proof on an
essential element of an offense as defined by state law.” Smith v. Horn, 120 F.3d 400, 416 (3d
Cir. 1997); see also In re Winship, 397 U.S. 358, 364 (1970) (“the Due Process Clause protects
the accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged”).
Petitioner points to minor differences between the recommended model instructions and
the charge given. However, this challenge does not necessarily warrant habeas relief. See, e.g.,
Hackett v. Price, 381 F.3d 281, 314 (3d Cir. 2004) (a change reflected in model instructions “does
not in itself indicate that its former instructions . . . were constitutionally infirm”); Berrisford v.
Wood, 826 F.2d 747, 754 (8th Cir. 1987) (“[t]hough the instructions [given] differ[ed] to some
degree from suggested pattern instructions used in [the State], the errors therein, if any, clearly do
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not rise to the level of constitutional significance”). Indeed, the record indicates that the trial court
did in fact stress to the jurors, over and over again, that the state must prove beyond a reasonable
doubt each element of the offense. The trial court also instructed that “in order to convict the
defendant as an accomplice . . . [the jury] must find that the defendant had the purpose to participate
in that particular crime. . . . It is not sufficient to prove only that defendant had knowledge that
another person was going to commit the crimes charged. The State must prove that it was
defendant’s conscious object that the specific conduct charged be committed.” (Lin, 10-5491,
ECF No. 2-71 at 87–92) (emphasis added). Thus, because the trial court did not lift the burden of
proof on an essential element of the offenses charged, Petitioner has failed to show that he is
entitled to relief on this claim.
V.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not
disagree with this Court’s conclusion that Petitioner has failed to make a substantial showing of
the denial of a constitutional right, Petitioner’s habeas petition is inadequate to deserve
encouragement to proceed further and a certificate of appealability is denied.
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VI.
CONCLUSION
For the reasons stated above, the Petition for habeas relief is DENIED and Petitioner is
DENIED a certificate of appealability. An appropriate order follows.
Dated: May 22, 2018
_/s Stanley R. Chesler__________
Stanley R. Chesler
United States District Judge
42
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