Petitioner Shadrak P. Neyor ("Petitioner") petitions pro se
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For
the reasons set forth below, the Court construes this as a
petition for relief under 28 U.S.C. § 2241, and the petition is
denied and dismissed.
On December 21, 1994, a seven-count indictment was returned in
the Superior Court of New Jersey, Essex County, Law Division,
against petitioner, which charged: (1) Third Degree Conspiracy
(Count I); (2) Third Degree Possession of Heroin (Count II); (3)
Third Degree Possession of Heroin with Intent to Distribute
(Count III); (4) Third Degree Possession of Heroin with intent
to Distribute within 1,000 feet of school property (Count IV);
(5) Third Degree Distribution of Heroin (Count V); (6) Third
Degree Distribution of Heroin within 1,000 feet of school
property (Count VI); and (7) Fourth Degree Possession with
Intent to Distribute Drug Paraphernalia (Count VII).
On March 13, 1995, the State moved to amend Counts V and VI of
the indictment to list cocaine as the controlled dangerous
substance instead of heroin. The trial judge granted the State's
motion, noting that the grand jury transcripts and the police
reports stated that cocaine was the drug distributed, not
A jury found petitioner guilty on all Counts. Petitioner was
sentenced to a three-year term of imprisonment, with a three
year period of parole ineligibility on Count VI. On Count VII,
the trial court sentenced defendant to a fifteen month term of
imprisonment, to run concurrently with the sentence imposed on
On appeal, petitioner contended that the trial court erred by
permitting the state to amend counts five and six of the
indictment because that amendment changed the substance of the
crimes charged. The Appellate Division summarily affirmed. The
petitioner did not seek certification to the New Jersey Supreme
Court. Instead, the petitioner moved before the trial judge for
reconsideration of his sentence, which was denied.
Thereafter, petitioner filed a pro se motion for post
conviction relief ("PCR") with the Law Division on May 30, 1996.
In his PCR petition, the petitioner claimed (1) denial of
effective assistance of counsel because of his attorney's
alleged failure to investigate the case;*fn1 (2) grand jury
misconduct because the grand jury failed to investigate the
charges and accepted the testimony presented by the State; (3)
prosecutorial misconduct because the prosecutor made allegedly
improper commentary in summation; and (4) trial court error in
allowing the State to amend the indictment to read "cocaine"
instead of "heroin."
Petitioner's PCR counsel submitted a supplemental brief which
argued: (1) the trial court erred in its instruction to the jury
regarding "school purposes"; (2)
petitioner's trial counsel was ineffective*fn2; and (3)
petitioner's counsel was ineffective for failing to raise on
appeal the issue of the allegedly improper jury charge on the
count of selling drugs within a school zone. The PCR court found
that defendant's trial counsel was not ineffective (claim
1).*fn3 State of New Jersey v. Neyor, Crim. No. 94-12-4345,
slip op. at 2 (Law Div. Oct. 29, 1996) ("Oct. 29 slip op."). As
to claims (2) and (3) contained in the petitioner's pro se
petition, the PCR court held that these allegations were
procedurally barred under N.J. Rule 3:22-4 because they were
not, but could have been, raised on direct appeal. Oct. 29 slip
op. at 2. Nevertheless, the court briefly addressed the merits
of claims (2) and (3). As to the claim of grand jury misconduct,
the court found such did not raise a colorable constitutional
claim because the grand jury is merely an accusatory body that
determines whether probable cause exists to indict based upon
the evidence presented to the State. Id. The PCR court held
the prosecutorial misconduct claim also to be without merit,
because the prosecutor properly challenged Neyor's testimony as
not credible. Id. at 3. The PCR court held that petitioner's
claim that the trial court's jury instruction was erroneous was
meritless and the charge was not error. Id. at 5. Finally, the
court held that N.J. Rule 3:22-5 barred petitioner's challenge
to the amendment of the indictment, because that issue had been
raised and addressed on appeal. Id.
On appeal from the denial of PCR, petitioner attacked the
PCR's court determination of each of the three ineffective
assistance of trial counsel claims. Petitioner further argued
ineffective representation by his PCR counsel. The Appellate
Division affirmed. The New Jersey Supreme Court denied
certification on the ineffective assistance of counsel claim.
Petitioner now seeks habeas corpus relief pursuant to
28 U.S.C. § 2254 on the following grounds: (a) petitioner's Sixth
Amendment Right to effective assistance of trial and appellate
counsel was violated by counsel's (i) failure to investigate the
validity of the "school map" and whether the school property was
in use for school purposes on the day of the incident; (ii)
stipulation to the laboratory results, which he claimed also
violated his rights under the Confrontation Clause of the Sixth
Amendment; and (iii) failure to challenge amendment of the
indictment; (b) the trial court erred in its instruction to the
jury regarding "school purposes"; (c) the court erred in
allowing amendment of the indictment; and (d) the prosecutor
committed prosecutorial and grand jury misconduct, for the same
reasons asserted in petitioner's PCR petition.
A. Petitioner's Custody Status
Under § 2254, district courts may entertain applications for
habeas corpus from petitioners who are "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." 28 U.S.C. § 2254(a) (emphasis added). The
custody" language of Section 2254 requires that habeas
petitioner be "in custody" under the conviction or sentence
under attack at the time petition is filed. Maleng v. Cook,
490 U.S. 488, 490-491, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540
Petitioner completed his sentence on November 4, 1997. (See
Exhibit 6, at 2). Thereafter, he was picked up by the
Immigration and Naturalization Service which is attempting to
deport him to Liberia. Petitioner does not attack the validity
of the deportation proceeding itself; instead, he merely claims
that the underlying conviction is invalid.
In Maleng v. Cook, the Supreme Court held that once a
prisoner's sentence has expired, he is no longer "in custody"
under that conviction sufficient for the court to have
jurisdiction to hear a habeas petition under § 2254.
490 U.S. 488, 492, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989). The
Court in Maleng expressed "no view on the extent to which [an
earlier conviction] itself may be subject to challenge in the
attack upon [a later sentence] which it was used to enhance."
Id. at 494, 109 S.Ct. at 1927.
After Maleng, the Third Circuit held that when a prisoner
seeks to collaterally attack a sentence that has already
expired, he may indirectly attack the expired sentence if it
was used to enhance a sentence that the prisoner is currently
serving; however, the petition is to be construed as one
attacking the current sentence and not the expired sentence.
See Young v. Vaughn, 83 F.3d 72, 75-76 (1996). Young
interpreted the Circuit's earlier decision in Clark v.
Pennsylvania and the Supreme Court's holding in Maleng to
require construction of a petition that attacked a previously
expired sentence as a petition attacking the current sentence
that had been enhanced by or resulted from the expired sentence.
See Young, 83 F.3d at 75-76, discussing Clark v.
Pennsylvania, 892 F.2d 1142 (3d Cir. 1989), cert. denied sub
nom. Castille v. Clark, 496 U.S. 942, 110 S.Ct. 3229, 110
L.Ed.2d 675 (1990). Young explained:
Under Clark, a federal habeas petitioner in custody
under a sentence enhanced by a prior conviction may
attack that prior conviction, even if he is no longer
in custody for it. However, he may do so only in the
context of a challenge to the enhanced sentence for
which he is in custody. In other words, a prisoner
may attack his current sentence by a habeas challenge
to the constitutionality of an expired conviction if
that conviction was used to enhance his current
83 F.3d at 77-78. Young took this reasoning one step further:
Young's expired 1989 conviction constituted a parole violation,
which served as a "predicate" for his current prison sentence.
Id. at 78. His sentence was not enhanced by virtue of the
earlier conviction like in Maleng and Clark, but instead was
a direct result of the earlier conviction: