Lau v. Bartowski

• Decision Date: 22 May 2018
• Docket Number: Civ. No. 10-5030 (SRC)
• Parties: SIMON LAU, Petitioner, v. GREG BARTOWSKI, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

SIMON LAU, Petitioner,
v.
GREG BARTOWSKI, et al., Respondents.

Civ. No. 10-5030 (SRC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

May 22, 2018

NOT FOR PUBLICATION

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

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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 high-ranking 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:

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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

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