Buczek v. Constructive Statutory Trust et al

Filing 26

ORDER directing petitioner to notify the Court in writing within thirty (30) days whether he elects (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 pursu ant to 28 U.S.C. Section 2255. If he fails to notify the Court within thirty (30) days in accordance with this Order, the petition and amended petition shall be designated as a motion pursuant to 28 U.S.C. Section 2255 and the Court shall then proceed to rule on the Government's motion to dismiss. During the thirty (30) days that petitioner has in which to respond to the Court's order, the proceeding is stayed. Signed by Hon. Michael A. Telesca on 8/26/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
SHANE C. BUCZEK,
Petitioner,
No. 10-CV-383(MAT)
ORDER

-vsCONSTRUCTIVE 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
conviction, following a guilty plea on March 25, 2010, to one count
of violating 18 U.S.C. 401(3) (contempt of court) in this Court
(Skretny, J.).

He was sentenced, on November 5, 2010, to a term of

12 months in federal custody. See United States v. Buczek, No. 09CR-0141S (W.D.N.Y.).

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-0382(MAT) (W.D.N.Y.), and Buczek v.
Constructive Statutory Trust, et al., 10-CV-0384(MAT) (W.D.N.Y.).

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On May 7, 2010, prior to being sentenced in his criminal case,
Petitioner
following

instituted
arguments:

this
“since

habeas
no

proceeding

probable

cause

asserting

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,

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. Asserting
without support that there exists “classified information” about
him at several federal agencies, Buczek alleged as his second
amended ground for relief that the Government violated the socalled Classified Information Procedures Act.
Buczek also has filed a Motion for Judgment on the Pleadings;
a Motion to Take Judicial Notice of the Determination by the

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Department

of

Unconstitutional

Justice
and

of

that
the

“Title
Fair

18

Warning

(1948)

[sic]

Doctrine”;

and

is
a

“Motion/Petition for Determination of a Question of Jurisdiction”.
The Government has filed a pre-answer Motion to Dismiss the
Petition and Amended Petition, asserting, inter alia, that the
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.
II.

Petitioner’s Applications Seek Relief Under 28 U.S.C. § 2255
Title 28, Section 2255 provides that a defendant may move the

sentencing court to vacate, set aside, or correct the sentence
“upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 28 U.S.C. § 2255. A petition for
writ of habeas corpus under 28 U.S.C. § 2241 is utilized only in
limited situations, not present here, such as actions challenging
the administration of parole, computation of good time or jail time
credits, prison disciplinary actions, and imprisonment allegedly
beyond the expiration of a sentence. Jiminian v. Nash, 245 F.3d
144, 146-47 (2d Cir. 2001). It is well-settled law in this Circuit
that am application pursuant to § 2241 “generally challenges the

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execution of a federal prisoner’s sentence,” not the imposition of
the sentence itself. Id.
In the Government’s pending motion to dismiss, it has 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).
In Adams, the Second Circuit cautioned district courts against
converting

mislabeled

habeas

applications

in

light

of

the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2244, which prohibits second or successive applications
for

the

writ

of

habeas

corpus

without

the

circuit

court’s

permission. The Second Circuit instructed s not to recharacterize
a motion purportedly made under some other rule or statute as a
motion made under 28 U.S.C.
knowledge

of

the

§ 2255 unless (a) the petitioner, with

potential

adverse

consequences

of

such

recharacterization, agrees to have the motion recharacterized, or
(b) the district court finds that, notwithstanding its designation,
the motion should be considered as made under 28 U.S.C. § 2255
because of the nature of the relief sought, and offers the movant
the opportunity to withdraw the motion rather that have it so

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recharacterized. Adams, 155 F.3d at 584; accord Castro v. United
States,540

U.S.

375,

383

(2003)

holding

that

when

a

court

recharacterizes a pro se litigant’s motion as a first § 2255
motion, it first must notify the litigant that it intends to
recharacterize

the

pleading,

warn

the

litigant

that

this

recharacterization means that any subsequent § 2255 motion will be
subject to the restrictions on “second or successive” motions, and
provide the litigant an opportunity to withdraw the motion or to
amend it so that it contains all the § 2255 claims he believes he
has); Melton v. United States, 395 F.3d 855, 857 (7th Cir. 2004).
The Court agrees that the instant petitions, notwithstanding
their designation as Section 2241 applications, must be construed
as being brought under 28 U.S.C. § 2255 because they seek to void
Buczek’s conviction on legal grounds. In accordance with Adams and
Castro, the Court hereby warns Petitioner that his Petition and
Amended Petition must be construed as being brought under 28 U.S.C.
§ 2255.

Petitioner is offered the option of withdrawing the

Petition and Amended Petition if he does not wish to pursue relief
under 28 U.S.C. § 2255. Petitioner must notify the Court in writing
within thirty (30) days of the date of this Order whether he
chooses (1) to withdraw the Petition and Amended Petition or (2) to
go

forward

with

the

pending

applications,

designated as a Section 2255 motion.

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which

will

be

re-

If Petitioner elects to withdraw the instant Petition and
Amended Petition, he should be aware that any new motion filed
under 28 U.S.C. § 2255 must be filed within the one-year statute of
limitations period.2
Petitioner should also know that, with certain exceptions, a
prisoner serving a federal sentence may bring only one Section 2255
petition without leave of the court; successive Section 2255
petitions

must

be

authorized

by

the

Second

Circuit

Court

of

Appeals.
The

Court

shall

stay

this

action

for

thirty

(30)

days

following the date of entry of this Order. If Petitioner fails to

2

AEDPA amended § 2255 to provide a one-year limitations period:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.

28 U.S.C. § 2255. Here, the start date for the statute of limitations is found
in § 2255(1)–the date on which Buczek’s conviction becomes final. A judgment of
conviction becomes final for purposes of § 2255 “when the Supreme Court ‘affirms
a conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires.’ ” Moshier
v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (quoting Clay v. United
States, 537 U.S. 522, 527 (2003)).

-6-

notify the Court within thirty (30) days in accordance with this
Order, the Petition and Amended petition shall be designated as a
motion pursuant to 28 U.S.C. § 2255. The Court shall then proceed
to rule on the Government’s motion to dismiss.
III. Orders
Wherefore, it is hereby
ORDERED that Petitioner notify the Court in writing within
thirty (30) days of the date of this Order whether he elects (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; and it is further
ORDERED that if Petitioner fails to notify the within thirty
(30) days in accordance with this Order, the Petition and Amended
petition shall be designated as a motion pursuant to 28 U.S.C.
§

2255,

and

the

Court

shall

then

proceed

to

rule

on

the

Government’s motion to dismiss; and it is further
ORDERED that this proceeding shall be stayed from thirty
(30) days from the date of entry of this Order.
SO ORDERED.

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

August 26, 2011
Rochester, New York
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