Buczek v. Constructive Statutory Trust et al
Filing
37
ORDER denying with prejudice 35 Motion for Judicial Notice. Signed by Hon. Michael A. Telesca on 5/30/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
SHANE C. BUCZEK,
Petitioner,
-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,
Nos. 10-CV-0382(MAT),
10-CV-0383(MAT), &
10-CV-0384(MAT)
DECISION AND ORDER
Respondents.
_____________________________________
I.
Background
Pro se petitioner Shane C. Buczek (“Buczek” or “Petitioner”)
filed an application styled as a petition for habeas relief under
28 U.S.C. § 2241 in each of the above-captioned proceedings,
challenging the constitutionality of his custody as the result of
various convictions entered against him in the Western District of
New York (Skretny, J.). After converting Buczek’s applications into
motions to vacate pursuant to 28 U.S.C. § 2255, the Court granted
the Government’s motions to dismiss the petitions with prejudice.
After judgment was entered in each matter, Buczek then filed a
pleading captioned as a “Motion For Reconsideration” pursuant to
Federal Rule of Civil Procedure (“F.R.C.P.”) 60(b)(6) in all three
cases. This Court denied all of the motions for reconsideration
with prejudice on October 24, 2011.
On October 20, 2011, Buczek filed notices of appeal in each
case. Buczek then filed, in all three cases, an undated pleading
captioned as “Motion for Judicial Notice.” These were received by
the Court on December 22, 2011. Although Buczek has not cited any
legal or
statutory
authority
for
his motions,
the
Court
has
construed them as motions pursuant to F.R.C.P. 60(b) for relief
from judgment. See Cureaux v. Sawyer, 93-CR-409, CIV.A.03-1048,
2004 WL 902170 (E.D. La. Apr. 23, 2004) (construing “motion to take
judicial notice” as a motion pursuant to F.R.C.P. 60(b), aff’d, 124
Fed. Appx. 826 (5th Cir. Feb. 17, 2005, cert. denied, 545 U.S. 1134
(2005). The Court cannot construe the Motions for Judicial Notice
as motions to amend or alter the judgment pursuant to F.R.C.P. 59
because they were filed past the twenty-eight (28) time-limit for
filing such
motions. FED. R. CIV. P. 59(e).
The Motions for Judicial Notice filed in the three cases are
identical. In the interest of judicial economy, the Court has
consolidated them for disposition.
For the reasons that follow, relief from judgment is not
warranted, and all three motions are denied with prejudice.
II.
Jurisdiction
The Court first must address whether it retains jurisdiction
over Petitioner’s Motions for Judicial Notice, since Petitioner has
filed Notices of Appeal to the United States Court of Appeals for
the Second Circuit. “The filing of a notice of appeal is an event
of jurisdictional significance—it confers jurisdiction on the court
of appeals and divests the district court of its control over those
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aspects of the case involved in the appeal.” Griggs v. Provident
Consumer Discount
Co.,
459
U.S.
56,
58
(1982)
(per curiam),
superseded on other grounds by FED. R. APP. P. 4(a)(4)(B); see also
Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir. 2004). The
Second Circuit has noted that
[w]hile the federal rules do permit the district court to
relieve a party or a party’s legal representative from a
final judgment, see Fed. R. Civ. P. 60(b), this circuit
has repeatedly held that the docketing of a notice of
appeal ousts the district court of jurisdiction except
insofar as it is reserved to it explicitly by statute or
rule.
Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)
(internal quotation marks omitted).
The Second Circuit also has explained that even after a notice
of appeal is filed,
“the district court can entertain and deny [a]
rule 60(b) motion[.]” Id. In addition, “the district court may
grant a rule 60(b) motion after an appeal is taken only if the
moving party obtains permission from the circuit court.” Id. “In
other words, before the district court may grant a rule 60(b)
motion, [the Second Circuit] must first give its consent so it can
remand the case, thereby returning jurisdiction over the case to
the district court.” Id. This Court’s understanding of the quoted
language is that can review Buczek’s Motions for Judicial Notice,
and if the Court were inclined to deny the motions, it could do so
without
the
Technologies,
Second
Inc.
Circuit’s
v.
Grand
consent.
Adventures
E.g.,
Tour
&
Call
Center
Travel,
No.
3:03CV01036(DJS), 2009 WL 1588438, at *2 (D. Conn. 2009). On the
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other hand, if the Court were inclined to grant Buczek’s motions,
it could not do so without the Second Circuit’s consent, i.e.,
without the Second Circuit remanding the cases to this Court to
rule on the motions. Id. Here, the Court is not inclined to grant
Buczek’s motions, and there is no basis to seek a remand from the
Second Circuit.
As noted above, the Court has necessarily construed Buczek’s
motions as seeking relief from judgment under F.R.C.P. 60(b) which
provides that the district court may relieve a party from a final
judgment for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time to move for
a new trial under F.R.C.P. 59(b); (3) fraud, misrepresentation, or
other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a
prior
judgment
upon
which
it
is
based
has
been
reversed
or
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) “any other reason
justifying relief from the operation of the judgment.” FED. R. CIV.
P. 60(b). According to the Second Circuit, F.R.C.P. Rule 60(b)
provides “extraordinary judicial relief” which can be granted “only
upon a showing of exceptional circumstances.” Nemaizer v. Baker,
793 F.2d 58, 61 (2d Cir. 1986); accord, e.g., Matarese v. LeFevre,
801 F.2d 98, 106 (2d Cir. 1986), cert. denied, 480 U.S. 908 (1987).
Generally,
for
an
F.R.C.P.
60(b)
motion
to
prevail,
a
three-part test must be met. First, there must be highly convincing
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evidence supporting the motion. Second, the moving party must show
good cause for failing to act sooner. Third, the moving party must
show that granting the motion will not impose an undue hardship on
the other party. Kotlicky v. United States Fidelity & Guar. Co.,
817 F.2d 6, 9 (2d Cir. 1987). “The burden of proof is on the party
seeking relief from judgment[.]” United States v. International
Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001).
Buczek is asking the Court to take so-called “judicial notice”
of A.U.S.A. Anthony Bruce’s prosecutorial misconduct and vindictive
prosecution of him, as well as the alleged invalidity of the
criminal statutes under which he was convicted. These are nothing
but attempts to reargue claims decided adversely to Buczek by this
Court and by other judges in this Court in his multitudinous prior
filings in this and other cases. Buczek has not shouldered his
burden of satisfying any one of F.R.C.P. 60(b)’s six grounds for
relief. See Van Skiver v. United States, 952 F.2d 1241, 1243-44
(10th Cir. 1991) (“Relief under Rule 60(b) is discretionary and is
warranted only in exceptional circumstances. A litigant shows
exceptional circumstances by satisfying one or more of Rule 60(b)’s
six grounds for relief from judgment.”) (internal citation omitted;
footnote omitted). Therefore, the Court finds no basis on which
grant relief under F.R.C.P. 60(b).
III. Conclusion
For the reasons discussed above, Petitioner’s “Motions for
Judicial Notice” (Dkt. #36 in 1:10-CV-0382(MAT), Dkt. #35 in 1:10CV-0383(MAT), & Dkt. #36 in 1:10-CV-0384(MAT)) are denied with
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prejudice. 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.
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).
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
May 30, 2012
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