Buczek v. Constructive Statutory Trust et al

Filing 29

ORDER granting 28 Motion to Amend or Correct; dismissing 3 Motion ; dismissing 4 Motion ; dismissing 5 Motion ; granting 11 Motion to Dismiss; finding as moot 20 Motion to Dismiss; dismissing with prejudice 1 Petition; dismissing with prejudice 2 Amended Petition; and dismissing with prejudice all claims asserted in 28 Motion to Amend or Correct. Signed by Hon. Michael A. Telesca on 9/29/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
SHANE C. BUCZEK,
Petitioner,
No. 10-CV-382(MAT)
DECISION AND ORDER

-vs-

CONSTRUCTIVE STATUTORY TRUST
DEPOSITORY TRUST CORPORATION
DONALD F. DONAHUE
UNITED STATES MARSHALS
JOHN CLARK and BRYAN MATTEWS
UNITED STATES PROBATION
JOSEPH GIACOBBE
UNITED STATES OF AMERICA
ERIC H. HOLDER
BEHAVIORAL INTERVENTIONS
B.I. WILLIAM COOPER CFO,
Respondents.
_____________________________________
I. Background
Pro se petitioner Shane C. Buczek (“Buczek” or “Petitioner”)
has filed an application styled as a petition for habeas relief
under 28 U.S.C. § 2241.1 He challenges the constitutionality of his
custody as the result of his conviction, following a jury trial in
the Western District of New York (Skretny, J.) on one count of bank
fraud, 18 U.S.C. § 1344; and one count of committing an offense
while on pre-trial release, 18 U.S.C. § 3147.
On May 7, 2010, prior to being sentenced in his criminal case,
1

The petition asserts the same grounds for relief that are raised in Buczek’s two
other habeas proceedings pending in this Court, Buczek v. Constructive Statutory Trust,
et al., 10-CV-0383(MAT) (W.D.N.Y.) (Docket No. 27), and Buczek v. Constructive Statutory
Trust, et al., 10-CV-0384(MAT) (W.D.N.Y.) (Docket No. 28).

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Petitioner
following

instituted
arguments:

this
“since

habeas
no

proceeding

probable

asserting

cause

the

affidavit

was

issued”, there was a Fourth Amendment violation and “jurisdiction
ceased” (issue one); the District Court lacks jurisdiction over him
due the failure to achieve a quorum in Congress when the federal
courts were established (“the Quorum Issue”) (issue two); the
“actions of the lower court judge violate 28 U.S.C. § 455" (issue
three); the judge “is not an Article III judge and therefore cannot
sentence” (issue four); and the alleged “sale of conviction bonds
[by the District Court] renders the proceedings void” (issue five).
Buczek then filed what he deemed an Amended Petition (Docket
No. 2), extensively arguing the Quorum Issue and raising two
additional arguments. First, Buczek speculated that since the
Government allegedly “concealed material evidence” in the cases
against former Alaska Senator Ted Stevens and former Alabama
Governor Don Siegelman, then the attorneys for the Government
necessarily must have concealed material exculpatory evidence in
his case. Buczek alleged as his second amended ground for relief
that the Government violated the so-called Classified Information
Procedures Act did not offer any support for his contention there
exists

“classified

information”

about

him

at

several

federal

agencies which the Government improperly obtained.
The Government has filed a pre-answer Motion to Dismiss the
Petition and Amended Petition, asserting, inter alia, that the

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issues raised therein are not proper grounds for relief under 28
U.S.C. § 2241 but rather must be raised, if at all, in a Section
2255 motion to set aside the sentence. The Government urged the
Court to warn Buczek that his Petition and Amended Petition must be
treated as a collateral attack under 28 U.S.C. § 2255; offer him
the opportunity to withdraw them; and caution him that if he does
not do so, they will be treated as a collateral attack and will
count as the one collateral attack allowed to each prisoner. See 28
U.S.C. § 2244; Adams v. United States, 155 F.3d 582 (2d Cir. 1998)
(per curiam).
Accordingly,

the

Court

issued

an

Order

(Docket

No.

27)

directing Petitioner to notify the Court whether he wishes (1) to
withdraw the Petition and Amended Petition, or (2) to proceed with
the Petition and Amended Petition, which shall be designated as a
motion pursuant to 28 U.S.C. § 2255.
In response to this Order, Petitioner filed a Motion for Leave
to Amend (Docket No. 28).2 Petitioner ignored the Court’s direction
to address whether he wished to withdraw the Petition and Amended
Petition, or to proceed with the Petition and Amended Petition
being converted to a motion pursuant to 28 U.S.C. § 2255. Rather,
he cites both 28 U.S.C. § 2241 and 28 U.S.C. § 2255 as grounds for
finding his conviction and sentence unconstitutional. The Court

2

Petitioner filed the same pleading in his other two habeas cases pending
in this Court, No. 10-CV-383(MAT) (W.D.N.Y.) and No. 10-CV-384(MAT) (W.D.N.Y.).

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interprets Buczek’s pleading as indicating a desire not to withdraw
the Petition and Amended Petition. As the Court stated in its
previous Order, relief under Section 2241 is not available based
upon the grounds asserted by Petitioner. Therefore, Petition and
Amended Petition must be converted to applications under 28 U.S.C.
§ 2255.
In the Motion for Leave to Amend, Petitioner also states that
he wishes to amend the Petition so as to (1) remove all named
respondents except for the United States of America; and (2) assert
that his Sixth Amendment right to a speedy trial was violated. He
also reargues the “Quorum Issue” and asserts a violation of the
Fair Warning doctrine: Because “there is no Federal Registry and no
C.F.R.’s that exist for Title 18", this means that Title 18, the
entire federal court system, and the criminal statutes under which
he was convicted are null and void.
II.

Standard of Review for Motions for Leave to Amend
Under Rule 15(a), a court “should freely give leave when

justice so requires.” Fed. R. Civ. P. 15(a)(2). The Second Circuit
has followed the Supreme Court’s direction that permission to amend
a claim “should be freely granted.” Oliver Schs., Inc. v. Foley,
930 F.2d 248, 252 (2d Cir. 1991) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). Notwithstanding this liberal standard, a court
may deny leave to amend where there has been undue delay or bad
faith on the moving party’s part, prejudice to the non-movant, or

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where leave would be futile. Monahan v. New York City Dep’t of
Corr., 214 F.3d 275, 283 (2d Cir. 2000) (citing Foman, 371 U.S. at
182). Petitioner’s requested amendments will have little to no
effect on the Court’s resolution of this matter and therefore the
Court cannot discern any prejudice to Respondents. Petitioner’s
Motion for Leave to Amend is granted insofar as all respondents
except

the

United

States

of

America

are

dismissed,

and

the

additional claims asserted by Petitioner are added to the Petition.
III. Standard of Review for 28 U.S.C. § 2255 Petitions
Title 28 U.S.C., § 2255 allows a convicted person being held
in federal custody to petition the sentencing court for an order
vacating, setting aside, or correcting his sentence. 28 U.S.C. §
2255.

Relief

under

Section

2255

is

available

“only

for

a

constitutional error, a lack of jurisdiction in the sentencing
court, or an error of law or fact that constitutes a ‘fundamental
defect which inherently results in a complete miscarriage of
justice.’” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)
(quoting Hill v. United States, 368 U.S. 424, 428 (1962)). As
Petitioner is proceeding pro se, the Court shall construe his
submissions to raise the strongest arguments suggested. Simmons v.
Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995).
IV.

Discussion
“A § 2255 motion may not relitigate issues that were raised

and considered on direct appeal.” United States v. Perez, 129 F.3d

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255, 260 (2d Cir. 1997) (citing Riascos-Prado v. United States, 66
F.3d 30, 33 (2d Cir. 1995)).

A defendant is also barred from

raising claims in his § 2255 motion that he failed to raise on
direct appeal unless he shows cause for the omission and prejudice
resulting therefrom. Id. (citing Femia v. United States, 47 F.3d
519, 524 (2d Cir. 1995)). A defendant may raise such claims “‘where
the

issues

were

not

raised

at

all

on

direct

appeal

due

to

ineffective assistance of counsel.’” Underwood v. United States, 15
F.3d 16, 18 (2d Cir. 1993) (quoting Barton v. United States, 791
F.2d 265, 267 (2d Cir. 1986)).
It is well-settled that habeas corpus review under 28 U.S.C.
§ 2255 is not a substitute for a direct appeal. See, e.g., United
States v. Frady, 456 U.S. 152, 165 (1982); United States v. Gordon,
433 F.2d 313, 314 (2d Cir. 1970) (“A motion under section 2255 may
not be used to review grounds which defendant failed timely to
raise at trial and on appeal.”). Where a defendant does not bring
a claim on direct appeal, the defendant is barred from raising the
claim in a subsequent proceeding under 28 U.S.C. § 2255 unless he
or she can establish cause for the procedural default and actual
prejudice resulting therefrom. See, e.g., Amiel v. United States,
209 F.3d 195, 198 (2d Cir. 2000)(citation omitted).
The term “cause” means “something external to the petitioner,
something that cannot be fairly attributed to him.” Coleman v.
Thompson, 501 U.S. 722, 753 (1991). Prejudice in this context

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consists of “actual and substantial disadvantage, infecting [the
defendant’s] entire trial with error of constitutional dimensions,”
United States v. Frady, 456 U.S. at 170. Where the first prong of
the cause and prejudice test is not satisfied, it is unnecessary to
discuss whether the petitioner suffered prejudice from his default
(the second prong of the test). Murray v. Carrier, 477 U.S. 478,
496 (1986) (upholding “adherence to the cause and prejudice test
‘in the conjunctive’”).
A.

Claims Raised in the Original Petition

All of Buczek’s claims raised in his original Petition (Docket
No. 1) (i.e., the Fourth Amendment violation; the “Quorum Issue”;
the

alleged

violation

of

28

U.S.C.

§

455,3

the

judicial

disqualification statute; the absence of an Article III judge to
provide over his criminal proceeding; and the illegal sale of sale
of conviction bonds by the District Court) either were raised on
direct appeal or could have been raised on direct appeal. If they
were raised before the Second Circuit, Buczek cannot use Section
2255 as an “extra” appeal. United States v. Perez, 129 F.3d at 260.
There is no cause identified that would be sufficient to
justify collateral review of any of these forfeited claims. Because
the first prong of the cause and prejudice test is not satisfied,
it is unnecessary to discuss whether Buczek suffered prejudice from
3

28 U.S.C. § 455(a) provides that “any justice, judge or magistrate of the
United States shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).

-7-

his default (the second prong of the test). Murray v. Carrier, 477
U.S.

478,

496

(1986)

(upholding

“adherence

to

the

cause

and

prejudice test ‘in the conjunctive’”). The Court explicitly finds,
however, that Buczek is unable to demonstrate prejudice in the
context of his forfeited claims, which are entirely without merit.
No he has demonstrated that he is actually innocent of the
crime for which he was committed. To establish actual innocence,
petitioner must demonstrate that, “‘in light of all the evidence,’”
“it is more likely than not that no reasonable juror would have
convicted him.” Schlup v. Delo, 513 U.S. 298, 327-328 (1995)
(quotation omitted). Buczek has not come close to meeting Schlup’s
extremely

rigorous

standard.

Therefore,

he

cannot

invoke

the

“fundamental miscarriage of justice” exception. Bousley, 523 U.S.
at 622 (citing Smith v. Murray, 477 U.S. 527, 537 (1986)).
Accordingly,

the

claims

asserting

a

Fourth

Amendment

violation; the “Quorum Issue”; a violation of 28 U.S.C. § 455; the
absence of an Article III judge to provide over his criminal
proceeding; and the illegal sale of sale of conviction bonds by the
District Court are dismissed as subject to an unexcused procedural
default.
Before proceeding to the claims asserted in the Amended
Petition the Court wishes to emphasize that the Quorum Issue, upon
which Buczek has expended the bulk of his argument, is patently
without merit. Petitioner argues that his conviction is invalid

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because the statute relied upon for district court subject-matter
jurisdiction,

18

U.S.C.

§

3231,

never

Congress in 1948 and is thus void.4

passed

both

houses

of

Bbecause of a defect in the

1948 passage of Public Law 80-772, 18 U.S.C. § 3231 as well as all
subsequently enacted statutes which rely upon 18 U.S.C. § 3231 for
district court jurisdiction are similarly invalid. Specifically,
Petitioner claims that Public Law 80–772, which is the provision
that enacted 18 U.S.C. § 3231 establishing jurisdiction of the
federal district courts, is invalid because it was never voted into
law by both Houses of Congress.
This contention, or a variation upon it, has been offered by
countless federal prisoners as a basis for § 2255 relief and has
been roundly rejected by all the federal courts who have considered
such claims. E.g., Castillo v. United States, 2011 WL 2110321, at
*3 (S.D. Miss. 2011) (citing

DeCarlo v. Hollingsworth, 2010 WL

5135883, at *2 (S.D. Ill. Dec. 10, 2010)(determining that a § 2241
petition

could

not

be

maintained

based

on

the

argument,

a

“perennial favorite[] of jailhouse lawyers,” that 18 U.S.C. § 3231
has

not

been

properly

enacted

into

law.);

United

States

v.

Siegleman, No. 2:05-cr-119-MEF-CSC, 2007 WL 1284276, at *1 (M.D.
Ala. Apr. 30, 2007)(providing that “even the briefest of forays
into the electronic databases available for legal research yields
4

18 U.S.C. § 3231 holds that “the district courts of the United States shall
have original jurisdiction, regardless of the courts of the States, of all
offenses against the laws of the United States.”

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a long list of judicial opinions that have considered and rejected”
this claim that “18 U.S.C. § 3231, the statute which gives the
district courts of the United States original jurisdiction over all
offenses against the laws of the United States, was not properly
enacted.”)(collecting
07-CV-36-GFVT,

2007

cases);
WL

Campbell

1035021,

at

*3

v.
(E.D.

Gonzalez,
Ky.

Mar.

No.
29,

2007)(finding that the petitioner’s claim that “the respondents
have no authority to hold him in custody because ‘Public Law 80–772
was never voted into law by the Senate during any session of the
80th congress’” was without merit); United States v. Risquet, 426
F. Supp.2d 310 (E.D. Pa. 2006)(stating that President Truman signed
Section 3231 into law on June 25, 1948, after the 1948 amendment to
Section 3231 passed both houses of Congress, and that the amendment
and statute were “properly enacted and . . . binding” and that
defendant “has offered no legitimate case law to the contrary”)
(collecting cases); Lister v. United States, Nos. 3:06-CV-1355-N,
3:03-CR-374-N,

2006

WL

3751324,

at

*2

(N.D.

Tex.

Dec.

20,

2006)(“Public law 80-772 was passed by the House of Representatives
in the first session of the 80th Congress. It was then passed by
the Senate during the second session of that same Congress. This
recess was an inter-session, and not a sine die recess. Bills
passed by one house before an inter-session recess and by the other
house after the recess are properly passed by Congress. Public law
80-772 was clearly passed by both houses before a sine die recess

-10-

was called. Therefore, the law was properly enacted and Movant’s
claim that the Court did not have subject matter jurisdiction must
fail.”) (citations omitted).
“Even if the 1948 amendment to § 3231 were somehow defective,
this court would retain jurisdiction over this case because the
predecessor to § 3231, which Defendant does not challenge, provides
for such jurisdiction as well.” Risquet, 426 F. Supp.2d at 312
(citing United States v. Lawrence, No. 02-200, 2006 WL 250702, at
*1 (N.D. Ill. Jan. 27, 2006)); accord Delreth v. United States,
Criminal No. L-03-1745-6, Civil No. L-05-205, 2006 WL 1804618, at
*4 (S.D. Tex. June 27, 2006)(noting that “even if 18 U.S.C. § 3231
was flawed, legislation that pre-dated section 3231 would have
operated to give the Court jurisdiction over federal crimes.”).
Based on these cases, the United States Supreme Court’s
consistent application of the statute in question as a foundation
of

jurisdiction,5

and

the

absence

of

any

legitimate

contrary

authority, this Court likewise rejects Buczek’s jurisdictional
argument as wholly without merit.

The “Quorum Issue”, in short,

does not present a claim upon which § 2255 habeas relief can be
granted.
B.

Claims Raised in the Amended Petition

5

See, e.g., Tafflin v. Levitt, 493 U.S. 455, 471 (1990); California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 213, n. 15 (1987); Commonwealth
of Pa. v. Nelson, 350 U.S. 497, 502, n. 10 (1956).

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In his Amended Petition, Buczek extensively re-argued the
Quorum Issue and raised two additional arguments. First, Buczek
speculated that since the Government allegedly “concealed material
evidence” in the cases against former Alaska Senator Ted Stevens
and former Alabama Governor Don Siegelman, then the attorneys for
the Government necessarily must have concealed material exculpatory
evidence in his case. Buczek alleged as his second amended ground
for relief that the Government violated the so-called Classified
Information Procedures Act did not offer any support for his
contention there exists “classified information” about him at
several federal agencies which the Government improperly obtained.
These claims are spurious, and are unsupported by anything
other than the speculations and conspiracy theories produced by
Buczek’s febrile imagination. With regard to the Brady claim, “[i]t
is well established that the mere speculation that exculpatory
evidence was withheld is insufficient to warrant habeas relief.”
Mallet v. Miller, 432 F. Supp.2d 366, 377 (S.D.N.Y.) (citing
Strickler v. Greene, 527 U.S. 263, 286 (1995) (“Mere speculation
that some exculpatory material may have been withheld is unlikely
to establish good cause for a discovery request on collateral
review.”)); accord, e.g., United States v. Upton, 856 F. Supp. 727,
746 (E.D.N.Y. 1994) (“As a matter of law, mere speculation by a
defendant that the government has not fulfilled its obligations
under Brady v. Maryland, 373 U.S. 83, . . . (1963), is not enough

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to establish that the government has, in fact, failed to honor its
discovery obligations.”).
With respect to Buczek’s allegations regarding the Classified
Information Procedures Act (“CIPA”), 18 U. S. C. App. 3, §§ 1–16,
they,

too,

requiring

are
a

meritless.

pretrial

CIPA

court

is

“merely

ruling

on

the

a

procedural
admissibility

tool
of

classified information.” United States v. Smith, 780 F.2d 1102,
(4th

1106

Cir.

1985).

CIPA

§

1(a)

defines

“[c]lassified

information,” in pertinent part, as “any information or material
that has been determined by the United States Government pursuant
to

an

Executive

order,

statute,

or

regulation,

to

require

protection against unauthorized disclosure for reasons of national
security.” United States v. Rosen, 557 F.3d 192, 195 (4th Cir.
2009). CIPA applies, in the criminal setting, when a defendant
expects

to

disclose,

or

cause

the

disclosure,

of

classified

information at trial or in a pretrial proceeding. Under CIPA §
5(a),

he

is

required

to

notify

the

district

court

and

the

government of the potential disclosure. Id. Here, however, Buczek
simply

alleges

that

the

Government

is

withholding

classified

information regarding him, but he utterly fails to identify what
this information is. Although Buczek cites CIPA, that statute has
no relevance whatsoever to Buczek’s case. This claim is patently
frivolous and must be dismissed.
C.

Claims Raised in the Motion for Leave to Amend

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In his Motion for Leave to Amend, Buczek asserts that his
Sixth Amendment right to a speedy trial was violated. He also
asserts that the Fair Warning Doctrine was violated because “there
is no Federal Registry and no C.F.R.’s that exist for Title 18",
and, accordingly, Title 18, the entire federal court system, and
the criminal statutes under which he was convicted are null and
void.
As

discussed

above,

other

than

a

claim

for

ineffective

assistance of counsel, a defendant cannot litigate under Section
2255 claims that he could have raised but did not on direct appeal,
unless the defendant can show either: (1) cause and prejudice; or
(2) that the defendant is actually innocent of the crime for which
he was convicted. Bousley v. United States, 523 U.S. 614, 622-23
(1998).
If Buczek’s speedy trial claim and Fair Warning claim were
raised before the Second Circuit, Buczek cannot use Section 2255 as
an additional appeal. If they were not raised on direct appeal,
Buczek must demonstrate cause and prejudice; or (2) that he is
factually innocent of the crime for which he was convicted. Buczek
has not alleged, much less established, the requisite “cause” and
“prejudice”,

and

he

therefore

cannot

overcome

the

procedural

default in this manner. Furthermore, as discussed above, he has not
demonstrated that he is actually innocent of the crime for which he
was committed. Buczek’s speedy trial claim and Fair Warning claim

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are subject to an unexcused procedural default and accordingly are
dismissed.
V.

Conclusion
For the reasons set forth above, Petitioner’s Motion for Leave

to Amend is granted to the extent that all respondents except the
United States of America are dismissed and Petitioner’s new habeas
claims stated therein are included for consideration by this Court.
The Motion for Leave to Amend is denied in part, to the extent that
none of the new habeas claims asserted therein warrant relief, and
therefore they are dismissed with prejudice.
Petitioner’s Petition and Amended Petition are converted to
applications under 28 U.S.C. § 2255. The Government’s Motion to
Dismiss is granted, and the Petition and the Amended Petition

are

denied with prejudice.
Petitioner’s Motion for Judgment on the Pleadings;

Motion to

Take Judicial Notice of the Determination by the Department of
Justice that “Title 18 (1948) [sic] is Unconstitutional and of the
Fair Warning Doctrine”; and “Motion/Petition for Determination of
a Question of Jurisdiction” are dismissed as moot, in light of this
Court’s dismissal of the Petition and the Amended Petition.
Petitioner has failed to make a substantial showing of the
denial

of

a

constitutional

right,

and

a

certificate

of

appealability shall not issue. 28 U.S.C. § 2253(c)(2). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R.App.P.

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24(a)(3), that any appeal from this Decision and Order would not be
taken in good faith and therefore the Court denies leave to appeal
as a poor person from this Decision and Order. Coppedge v. United
States, 369 U.S. 438 (1962).
VI.

Orders
It is hereby
ORDERED that the Petition (Docket No. 1), Amended Petition

(Docket No. 2), and all of the habeas claims raised in the Motion
for Leave to Amend (Docket No. 28) are converted to applications
under 28 U.S.C. § 2255; and it is further
ORDERED that the Government’s Motion to Dismiss (Docket No.
11) is granted and the Petition (Docket No. 1), Amended Petition
(Docket No. 2) are dismissed with prejudice; and it is further
ORDERED that and all of habeas claims raised in the Motion for
Leave to Amend (Docket No. 28) are denied with prejudice; and it is
further
ORDERED that Petitioner’s Motion for Leave to Amend is granted
insofar as all respondents except the United States of America are
dismissed from this action. In light of this dismissal, the Motion
to Dismiss (Docket No. 19) filed by respondent Depository Trust
Corporation, Donald F. Donahue is dismissed as moot; and it is
further

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ORDERED that Petitioner’s Motion for Judgment on the Pleadings
(Docket No. 3); Motion to Take Judicial Notice of the Determination
by the Department of Justice that “Title 18 (1948) [sic] is
Unconstitutional and of the Fair Warning Doctrine” (Docket No. 4);
and

“Motion/Petition

for

Determination

of

a

Question

of

Jurisdiction” (Docket No. 5) are dismissed as moot, in light of
this Court’s dismissal of the Petition, the Amended Petition, and
the claims asserted in the Motion for Leave to Amend.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

September 29, 2011
Rochester, New York

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