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August 6, 2001


The opinion of the court was delivered by: Walls, District Judge.


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 heroin.

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 Count VI.

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 "in 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 (1989).

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 sentence.

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:

[T]his difference only makes Young's case stronger: but for his 1989 conviction, he would not be in prison or otherwise "in custody" at all. Young's confinement is thus even more closely related to his 1989 conviction than if it were merely the result of a sentence enhanced by that conviction. . . . "If anything, it is even more appropriate for a court to examine an expired ...

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