Buczek Habeas Corpus Petition 54 121 141

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK BUFFALO DIVISION SHANE CHRISTOPHER BUCZEK
shane-christopher: buczek, third party intervener as Grantor / Beneficiary of said Cestui Que Trust C C C C C C C C C C C C C C C C C
this brief is copyrighted 2010
Petitioner v.
C.A.No. _________________ Ref 1:08-cr-0054 Ref 1:09-cr-00121 Ref 1:09-cr-00141
UNITED STATES MARSHALS UNITED STATES PROBATION UNITED STATES OF AMERICA Respondent
verified affidavit
PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO THE ORIGINAL HABEAS CORPUS AS PRESENTED IN RULE 17 THE CONSTITUTION AND/OR 28 USC 2241 AND CHALLENGE TO JURISDICTION AND REQUEST TO DISMISS OF ALL INDICTMENTS AND CONVICTION WITHIN THE NEXT 3 DAYS, AS THIS IS AN EXTRAORDINARY WRIT, OR ALTERNATIVELY, TO SHOW CAUSE WHY PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 USC 2241 AND CHALLENGE TO JURISDICTION AND REQUEST TO STAY SENTENCING PENDING JURISDICTIONAL REVIEW
FOR AND ON THE RECORD OF the honorable court of record: False Arrest with no jurdiction. This court is now under the constitutional law only.This complaint has failed to produce evidence of an injured party. This complaint has failed to produce an affidavit of verified complaint, or the existence of a complaining party. This complaint has failed to produce an injured party. This complaint has failed to produce and to state a claim upon which relief can be granted. This complaint has failed to produce an honorable ruling, therefore the court could rule only by an undisclosed presumption of an assumed intention This complaint and this court has now lost all jurisdiction by its denial of due process not only have no claim, but also no accusatory instrument or Valid Indictment with any real party which none exists. See title 4 Sec.72 All offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law. See title Title 18 Sec. 4001 (a) 4001. Limitation on detention; control of prisons
And when I look at the totality of the circumstances in these three indictments, I am rapidly coming to the conclusion 1 without making a formal legal finding that Mr. Bruce is bent on a path of vindictiveness and retaliation against this defendant. He reminds me and my memory doesn't serve me well enough to pull up the name -- but he is the inspector fromLes Miserables who would spend 20 years chasing the man who stole a loaf of bread because he was starving. (Page 22 line 21-25 and page 23 line 1-3) QUOTE Judge KENNETH SCHROEDER, JR August 20,2009 1:47 PM
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress. (b) (1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended, and the applicable regulations. (2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.
Remedy demanded: 1. TITLE 42 > CHAPTER 21 > SUBCHAPTER I > Sec. 1988. 2. Obliterated Instrument fines. 3. Process server's fees. . . . . . . . . . . . . . . . . Waived 4. Other (specify): . . . . . . . . . . . . . . . . . . . . 15,000,000.00 Per color of law violation Enter default of defendant CORPORA FICTA Employee(s); ET AL Respondents, (Estate of Macias v. Lopez, 42 F. Supp.2d 957, 962 (N.D. Cal. 1999). Per Defendant, Violation of Constitutional rights by custom & policy. 5. TOTAL 1-40 defendants times violations is the sum of $ 600 million, reserving the right to add defendants as they become known. 6. Time spent falsely arrested. $1000.00 USD per minute 1,134,720,000 minutes held illegally; in a case in which the city was accused of failing to properly train its officers, the Tenth Circuit Federal Court of Appeals (West) upheld an award of $100,000 against the city and $2,100 against the police officers. As a result of a 23 minute improper stop of a motorist, the Eleventh Circuit Federal court of Appeals (South East) upheld a jury award of $25,000. Trezevant v. City of Tampa, 741 F.2d 336 (llth Cir. 1984). 6. Time spent falsely arrested. $1000 per minute 1,134,720,000 minutes held illegally for minutes; Amount $1,134,720,000,000.00 USD In a case in which the city was accused of failing to properly train its officers, the Tenth Circuit Federal Court of Appeals (West) upheld an award of $100,000 against the city and $2,100 against the police officers. As a result of a 23 minute improper stop of a motorist, the Eleventh Circuit Federal court of Appeals (South East) upheld a jury award of $25,000. Trezevant v. City of Tampa, 741 F.2d 336 (llth Cir. 1984). Number of CORPORA FICTA Employee(s); 40 multiplied by 15 million = 600,000,000.00 million Number of minutes held without a warrant 1,134,720,000 minutes minutes, multiplied by $1000.00 = 1,134,720,000,000.00 USD Billion and $600,000,000.00 Million Grand Total for False arrest under color of law is payable only in Gold & Silver, is 1,135,320,000.00 billion.
I.
PRAYER FOR RELIEF
This great writ called habeas corpus is filled since the court lacked jurisdiction
which is a mistake and it never had subject matter jurisdiction, is not a Article III court, and violated Due Process and its ministerial duty by falling to make specific findings of fact 1st, 5th, 6th, and 8th amendments to the constitution, and is violation of the prohibitions against peonage and slavery. The government concealed evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), violated the Classified Information Procedures Act, 18 USC App. III, and violated the Informers Privilege pursuant to Rovario v. United States, 353 U.S. 53, 64-65 (1957).Once jurisdiction is challenged, all proceedings must cease. See Appendices 9 William-Edwin: Diehl DENIED witness to put INTO evidence in false arrest case 09-cr-00121.Affidavit The government of the United States may, therefore, exercise all, but no more than all the judicial power provided for it by the Constitution. Rhode Island v. Massachusetts, 29 U.S. 210 (1840). All proceedings should cease and the government must prove its jurisdiction on the record and the court also made money from the conviction, in violation of the 1st, 5th, 6th, and 8th amendments to the constitution, and in violation of the prohibitions against peonage and slavery. The government concealed evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963), violated the Classified Information Procedures Act, 18 USC App. III, and violated the Informers Privilege pursuant to Rovario v. United States, 353 U.S. 53, 64-65 (1957). When Due Process is violated, jurisdiction ceases. No procedural bar exists on a challenge to jurisdiction. The court should take judicial notice that in Orr v. United States, No. 2:09-cv-00950-TS, District of Utah, Salt Lake City Division, the government judicially noticed on the record that that judge, and by definition, this judge, is not an Article III judge but an Article II judge, making the judge an administrative judge and part of the Department of Justice and without authority to sentence. Therefore,
the sentence in this case is illegal on its face and must be thrown out as the court had no jurisdiction ab initio. It should be noted that the court is faced with a Hobsons choice related to the validity of Public Law 80-772, Title 18 of the criminal code. Several rulings have been issued by judges who have been interested in upholding their convictions and protecting their bonuses even though those rulings are in violation of the Judges oath of office, the Constitution, and Supreme Court precedent. One example is the Risquet case in the Eastern District of Philadelphia, in which the judge ruled that if he did not have jurisdiction pursuant to 18 USC section 3231, then he must surely have jurisdiction under the prior statute, a statute that was repealed in the 80th Congress and no longer existed. The government and court can follow the Constitution of the United States, the Supreme Law of the land, the contract between the government and its people, in which case Petitioner is entitled to relief, or they can ignore the Constitution and Supreme Court precedent, in which case Petitioner is entitled to relief because the court is engaged in a conspiracy to defraud. If the court and government continues to ignore the Constitution of the United States which establishes according to the Quorum clause that the House never voted on Public Law 80-772, then a prima facie case exists that the courts listed and this court are not Constitutional courts, but rather administrative courts, and have no authority to sentence, itself a Constitutional violation requiring relief, and are engaged in peonage and slavery. Petitioner requests this Court issue a Writ of Habeas Corpus declaring unconstitutional and void ab initio: (1) Public Law 80-772 which purported to enact Title 18, United States Code, Act of June 25, 1948, Chapter 645, 62 Stat. 683 et seq., and (2) more specifically, Section 3231 thereof, 62 Stat. 826, which purported to confer upon
the district courts of the United States original jurisdiction of all offenses against the laws of the United States. These legislative Acts violated the Quorum, Bicameral and/or Presentment Clauses mandated respectively by Article I, 5, Cl. 1, and Article I, 7, Cls. 2 and 3, of the Constitution of the United States. The federal district court which ordered commitment of this Petitioner, under Section 3231, lacked jurisdiction and, therefore, any judgment and commitment order is void ab initio. To imprison and detain a Petitioner and cause him future harm under a void commitment order is unconstitutional and unlawful. Therefore, Petitioner must be discharged from any present illegal
incarceration and his indictment or information, plea, and any judgment must be declared void immediately to prevent future harm. The Supreme Court has declared in Glover v. United States that even one additional day in prison without authority has Constitutional significance. 531 U.S. 198 (2001). One bill was passed by the House of Representatives in 1947, the first session of the 80th Congress. A second, distinct, amended, and entirely different bill was passed by the Senate in the second session of Congress in 1948. The first bill, the House bill, was truly enrolled. The second bill, the Senate bill, not passed by the House, was signed by the Speaker of the House and President of the Senate on June 23, 1948, after Congress was fully and completely adjourned and disbanded, not in session. The bill signed into law by President Truman on June 25, 1948, the amended Senate bill not passed by the House, not the House bill which was truly enrolled, and was signed by Congress after Congress was fully and completely adjourned and therefore is a political law and not a statute authorized by Congress. The bill signed into law as Public Law 80-772 was not published in the Federal
Register as required by the Federal Register Act, 44 USC 1501, et seq. (1935) and therefore its enactment is in violation of Due Process. The court should also dismiss all the indictments and release Petitioner because no criminal complaint supported by proper probable cause affidavit was filed in this case as required by F.R.Crim.P. 3 (violation of Due Process according to Amendment IV and V of the Constitution); the judge in this case is not an Article 3 judge (violation of Article III of the Constitution); the court in this case is selling conviction bonds as an incorporated for profit entity in violation of various Constitutional rights against peonage, slavery, and cruel and unusual punishment. Since Petitioner presents these claims by affidavit under the penalty of perjury, the court should issue a request for the government to show cause why this case should not be dismissed and the sentencing cancelled. The court should also dismiss the indictment and conviction on the bogus bank fraud case because F.R.Crim.P. 6, which allows the prosecutor to hold the grand jury records, is unconstitutional on its face and in violation of the Separation of Powers doctrine. 1 The waiver of indictment constituted a fraud in these proceedings, aided by the governments attempt to manipulate Petitioners Constitutional right to a grand jury. See U.S. v. Williams, 504 U.S. 36 (1992). The court should demand in their show cause order that the government refrain from retaliating against Petitioner. Any attempts at retaliation would be prima facie case of retaliation as per the Supreme Court precedent in Bordenkircher v. Hayes. 434 US 357 (1978). IA.
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REASONS THE GOVERNMENT CAN NOT WIN THIS
There are two parties to this case, Plaintiff and Defendant. If the court, which is supposedly independent, allows the Plaintiff to hold court records, it could just as easily allow the defendant to hold court records.
DISAGREEMENT AND THE COURT CAN NOT DECLARE THE ARGUMENT FRIVOLOUS The district court obtained its jurisdiction over Petitioner pursuant to a grant issued by Congress by Public Law 80-772, Title 18 of the criminal code. That law contained a jurisdictional section, 18 USC 3231, which gave the district court authority to prosecute Petitioner. A district court obtains its authority through acts of Congress. Without an act of Congress, i.e., without the validity of 18 USC 3231, the court has no authority to prosecute Petitioner and its actions are ultra vires. See, e.g., the prior jurisdictional statute, 18 USC 546 (1940), which only gave the district courts jurisdiction to prosecute pursuant to Title 18 as listed at that time. Since Petitioner establishes as a matter of law that Public Law 80-772 was never enacted, then the court has no authority pursuant to 18 USC 3231 2 (i.e., jurisdiction ceased from its inception) and Petitioner is currently detained on ankle bracelet for committing no crime and I am suffering great financial harm by not being allowed to have the ability to work and make my own living, to my commercial detriment. I have gainful employment working for and with my family in the local area. As such, I hereby make this petition to the court for immediate release reserving all rights and waiving none. (Crimes can only be prosecuted by statute, i.e., no law, no crime).I is the real party not an entity.
TITLE 28 App. > RULES > IV. > Rule 17 Rule 17. Parties Plaintiff and Defendant; Capacity (a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that persons own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. (b) Capacity to Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individuals domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the applicable state, except (1) that a partnership or other unincorporated association, which has no capacity by the law of its state, may sue or be sued in its common name for the
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That section was necessary to establish jurisdiction, because the Senate declared it necessary: As the Senate stated in Senate Report No. 1620, Calendar No. 1675, Revision of Title 18, United States Code, June 14, 1948, Mr. Wiley, from the Committee of the Judiciary Submitted the following Report to accompany H.R. 3190: . This report is necessary to preserve the provisions of section 371(1) of title 28 United States Code, 1940 edition, giving the district court of the United States original jurisdiction of all offenses against the laws of the United States, exclusive of the State courts. App. Pg. 104.
purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., Sections 754 and 959 (a). Federal Rules of Civil Procedure Rule 17(a)
Take JUDICIAL NOTICE that the above listed corporations are in violation of Rule 17(a) in their civil action against the Real Party in Interest, shane-christopher family of buczek, in the first judicial district of tens. It is a fact that no Real Party In Interest for said corporations have issued
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a personal claim against Defendant; Black's Law 8 Edition gives definition that: "A Corporation is an artificial being, invisible, intangible, and existing only in contemplation of law ... '.' An artificial being cannot bring a claim against a flesh and blood man. I hereby object and reject these corporate entities' civil action for lack of ratification of commencement." OBJECTION & REJECTION OF THIRD PARTY DEBT COLLECTORS FOR LACK OF AUTHENTICATION OF CAPACITY & STANDING & LACK OF FIRST-HAND KNOWLEDGE. Take JUDICIAL NOTICE that I object to and reject the statements to alleged facts, pleadings, general actions of the third Party Debt Collectors: UNITED STATES OF AMERICA, its employee, Assistant United States Attorney, Anthony Bruce. He has no first-hand knowledge of the accounts payable fraud that has been committed against Defendant and has not shown authentication of capacity of plaintiff and standing to appear for or represent the alleged plaintiff(s); it is a fact of record that no Real Party of Interest from the above listed corporations have signed any document validating their claim that lawful money was loaned, or issued to defendant, and a true debt is owed; it is a fact that none of the listed Libellants have a lawful
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claim against the Defendant. Thus, the SUPREME LAW of God declares in His 8
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Commandment that "thou shalt not steal" and in His 9 Commandment, "Thou shalt not bear false witness against your neighbor, Thus, there is no lawful claim and this Court is compelled to dismiss this case.
INVOKED UNALIENABLE RIGHTS In the first judicial district of tens, the Real Party In Interest, invoke my Rights allegedly protected by the state Constitution to be secure in my person, my effects and my private property and justice to be administered in due course of Law; I further invoke protection in the nature of the Declaration of Independence as rights to life, liberty and pursuit of happiness and the alleged Constitution for the United States of America as it applies to plaintiff which was established "by the people" and "for the people" to keep the federal Government and its Courts within the bounds of written law. Said Constitution does not operate upon me, in the first judicial district of tens, but does operate upon and restrict agents and officers of plaintiff/Libellants. Let this Court take Notice that "All laws which are repugnant to the Constitution are null and void." Chief Justice Marshall, Marbury v, "Madison 5 US (lCranch) 137, 174. 176, (1803); "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them." Miranda v. New York 384 US 436; 'The duty of the court is to insure the Constitution is construed in favor of the citizen." Byars vs. US., 273 US 28; "The Court is to protect constitutionally secured rights." Boyd v. U.S., 116 US 616. IMPORTANT NOTICE: It is a fact that the distinction and declaration of 'sovereign' State authority has been openly declared by the majority of the States since Barack Obama has taken office of the Presidency on January 20, 2009. Below is a list of the States who have declared 'Sovereignty' with a clear and distinct separation of authority and jurisdiction. 2009: Arkansas -9th Amendment, 10th Amendment, Funding Issues 2009: New York - 9th Amendment, 10th Amendment 1994: California -10th Amendment 1995/96: Georgia -10th Amendment 2009: Georgia -10th Amendment 2009: Kansas -10th Amendment
2009: Kentucky -10th Amendment 1997/98: Louisiana -Sovereignty Constitutional Amendment 2009: Michigan -10th Amendment 2009: Minnesota -10th Amendment 2009: Missouri -Freedom of Choice Act (Abortion), 10th Amendment 2009: Montana -9th Amendment, 10th Amendment, 2nd Amendment 2009: New Hampshire -9th Amendment, 10th Amendment, Federal Reserve, Taxes, Martial Law, 2nd Amendment, Draft/War, Patriot Act, Labor Camps, 1st Amendment 2008: Oklahoma -10th Amendment, (Other Legislation: No Child Left Behind, Real ID Act) 2009: Oklahoma -9th Amendment, 10th Amendment, Funding Issues 2009: South Carolina -9th Amendment, 10 Amendment, Martial Law and Related, 1st Amendment, 2nd Amendment 2009: Tennessee -10th Amendment 2009: Texas -9th Amendment, 10th Amendment, Funding Issues 1995: Utah [Number: HJR003, Session: 1995] -10th Amendment 2009: Utah -Real ID Act 2009: Washington -10th Amendment Proposed: Alabama -9th Amendment, 10th Amendment Proposed: Alaska 1994: Colorado -10th Amendment 1995: Florida -10th Amendment Proposed [HJM RS 18517]: Idaho -10th Amendment Proposed: Indiana -10th Amendment Proposed: Iowa -10th Amendment Proposed: Maine Proposed: Nevada Proposed: Ohio -10th Amendment Proposed: Pennsylvania -10th Amendment Proposed: Virginia -10th Amendment Proposed: West Virginia -Same As New Hampshire Republic of Lakotah -Full Independence Hawaii -Full Independence
Oregon, South Dakota, New Mexico, and Michigan also have new bills proposed.
These above listed States have introduced or proposed bills and resolutions to remind President
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Obama that the 10 Amendment protects the rights of the States and the rights of the people, by limiting the power of the federal government. I suggest that all parties who may come in contact with this Mandatory Judicial Notice review the bills that are being passed by State governments to see a clear picture that sovereign people, the general public are aware of and fully awake to the corruption of the over-reaching hand of the Federal Government, it's corrupted Courts, corrupted Judges, the corrupted Banks & Corporations, and yes, the corrupted Attorneys who bind up and twist the law to be used against the "sovereign people". It would do well that the third party debt collectors engaged in this matter take heed the words of KING Yahshua, "Woe unto you also, ye lawyers! for ye lade me with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers ... for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered. KJV the Holy Scriptures (Bible) -Luke 11:46, 52. The above referenced States that are initiating bills and resolutions have ordered the Federal Government to cease & desist from its reckless government expansion and
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they have been informed that federal laws and regulations implemented in violation of the 10 Amendment will be nullified by the States. The sovereign Citizens of the fifty (50) States have the supreme Right under the authority of Almighty God and their State government laws to reject the mandates of the federal government and the rulings of the federal Courts. Again for reiteration, so that all parties have a clear understanding of Sovereignty Hierarchy: First and Foremost, the highest SUPREME SOVEREIGN is ALMIGHTY GOD, our CREATOR and His name is "Yahweh"; His son's name is, "Yahshua" which is the KING of the Universe! One can choose to believe it or not but THEY are in charge and their angels record all the affairs of men and will bring every man & woman's actions into judgment. Indeed, KING, "Yahshua" is the
SUPREME JUDGE of the Universe and no Bank CEO or Corporate Executive, Judge or Attorney is above His LAW. Secondly, it is the "people" and/or "We the People" which are absolute Sovereigns, the created of Almighty God, The Lawmakers and the Rulers of instituted governments. Thirdly, the Constitution for each Sovereign State and the Constitution for the United States of America, which was created by the "Sovereigns" as the Supreme Law of the land, which gives government and its courts limited power over the "people". It is worthy to note,
President
that the 2nd
, John Adams, reminds the "people" of the following: "You have rights
antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe." Our forefathers created a nation where all free men were equal to a King, meaning each was Sovereign, with no power over him except that of Almighty God and conscience. They further declared the only purpose of government for the Constitutional Republic was to protect the rights of the governed, such as Liberty, Freedom and Independence. The American Constitution states in Article IV clause 4 that: "The United States shall guarantee to every State in this Union a Republican Form of Government... "; it must be noted that the Courts in the past have upheld this foundation of law in such cases as Afroyim v. Rusk, 387 US 253 (1967): "In the United States the people are sovereign and the government cannot sever its relationship to the people by taking away their citizenship." See Hancock vs. Terry Elkhorn Mining Co. 530 S.W. 2d 710 Ky which states: "Under the democratic form of government now prevailing the People are King so the Attorney General's duties are to that of the Sovereign rather than to the machinery of government" See The People vs. Herkimer 15 Am Dec 379, 4 Cowen (N.Y. 345, 348 (1845) which states: "The People, or the Sovereign, are not bound by general word ... in statutes, restrictive of prerogative right, title or interest, unless expressly named Acts of limitation do not bind the King nor the People. The People have been ceded all the Rights of the King, the former Sovereign ... It is a
maxim of the common law that when an act of parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when statute is general, and may prerogative right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound" See the Supreme Court decision Hale vs. Henkle 201 U.S. 43 at 74 which states: "The individual may stand upon his Constitutional rights as a Citizen. He is entitled to carryon his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business or to open his doors to investigation ... He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. His rights are such as existed by the Law of the Land, long antecedent to the organization of the State, and can only be taken from him by due process of the law and in accordance with the Constitution. He owes nothing to the public so long as he does not trespass upon their rights. This Supreme Court ruling has never been overturned! --See lulliard vs. Greenman 110 U.S. 421 which states: "There is no such thing as a power of inherent Sovereignty in the government of the United States. In this country sovereignty resides in the People, and Congress can exercise no power which they have not, by their Constitution entrusted to it: All else is withheld. "See Chisholm v. State of Georgia 2 US 419 (DALL.) 471 which states: "In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution. See Yick WO vs. Hopkins and Woo Lee vs. Hopkins 118 U.S. 356. (S. Ct.) which states: "Sovereignty itself is, of course, not subject to law for it is the author and source of law. THUS, the "King" and/or known as the "Sovereign" cannot be sued in his own court without his consent. See Siren vs. U.S. 74 U.S. 152 which states: "It is the doctrine of the common law, that the Sovereign cannot be sued in his own court without his consent. In the first judicial district of tens, the Real Party In Interest, will not engage in debate or provide memorandum of opinion in this foreign jurisdiction using court cases that pertain to corporations
such as the United States Fifth Circuit case Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145
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F.3d 320 (5 Cir. 1998) and Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 US 826, 122 S. Ct. 1889 (2002). COURT LACKS SUBJECT MATTER JURISDICTION F.R.Civ.P. 12(b) Dismissal of this case from this Court is mandatory pursuant to Federal Rules of Civil Procedure 12(b), wherein Defendant declares the following objections of this Court's authority: 1) Lack of subject-matter jurisdiction; 2) Lack of personal jurisdiction; 3) Improper venue; 2. Dismissal is mandatory under Federal Rules of Civil Procedure 12(b)(1) due to the fact that this Court does not have Subject-Matter Jurisdiction over the DEFENDANT or the Third Party Defendant, the Real Party In Interest in accord with the Constitution for the United States, Article 1 Section 8 Clause 17, which established Territorial courts called United States District Courts to function in 'federal zones / areas' only; under Title 4 United States Code 11O(e) the jurisdiction of the U.S. District Courts have no authority within the 50 States of the Union. The Supreme Court stated in Downs v. Bidwell (1901), "The laws of Congress in respect to those matters [outside of Constitutionally delegated powers] do not extend into the territorial limits of the states [50 States of the Union], but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government" [Emphasis added). TITLE 4 U.S. CODES 110: *(e) The term "Federal area" means any lands or premises held or acquired by or for the use of the United States or any department, establishment, or agency, of the United States; and any Federal area, or any part thereof, which is located within the exterior boundaries of any State, shall be deemed to be a Federal area located within such State. Article 3, Section 1 of the Constitution describes the jurisdictional authority for the District Courts of the United States, "Judicial power of the 'United States' is vested in the Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. As
such, Congress can change their structure because Congress has the Constitutional authority to do so. Congress made such a change in the structure of the Judiciary Branch of the government in 1976; Congress passed Public Law 94-381 changing the jurisdiction of the Federal District Courts; all United States District Courts are now Administrative Courts under the Executive Branch of the federal government and as such have no legal authority to hear or consider the law (see further explanation in Senate Report 94-204). The fact is, the United States District Judges take an Oath of Office that applies only to the 'Territorial office' they hold. The only Constitutional Judicial Courts able to hear Constitutional questions arising from an Act of Congress resides outside the 'jurisdiction J of the Congress and these are State Courts and the Court of International Trade located in New York City. As a result, all United States District Courts are 'At Law courts J and are not 'In Law Courts J and as such the Federal District Courts are only courts of consent; therefore, DEFENDANT, Third Party Defendant, shane-christopher family buczek, in the first judicial district of tens, the Real Party In Interest hereby firmly invokes his Right not to consent to the ruling of this At Law Court. LACK OF PERSONAL JURISDICTION F.R.Civ.P. 12(b) (2) Dismissal is mandatory under the Federal Rules of Civil Procedure 12(b)(2), due to the fact that shane-christopher family of buczek, in the first judicial district of tens is a private 'American' who makes his local habitation on the county at large, erie, new york republic, which is without the jurisdiction of the United States; the "United States" as defined in 8 U.S.C. 12 1101(a)(38) and IRC 7701 (a) (definitions) (9), is a federal corporation and is without the jurisdiction of the United States of America. The Real Party In Interest, shane the real living man, in the first judicial district of tens declares under the penalty of perjury by his below signature the fact that he is an 'American' who makes his local habitation on the county at large,erie, New York state and is not a 14th Amendment 'u.s.citizen' subject to the jurisdiction of the 'United States', a corporation established by the
Congressional "Act of 1871". Hidden Adhesion Contract Cancellation Notice: if there is an assumption of jurisdiction or personal liability by the court in case number 08-CR-054, 09-CR121 and 09-CR-141 ET. al., let this record reflect that I hereby revoke, rescind, refute and cancel my signature from all adhesion contracts, including, but not limited to, unilateral contracts, made by Me, or made for Me by accommodation, or made by presumption, by PERSONS acting for Me as My guardian without providing Me with full disclosure of said contracts. If any parties of said corporations as listed herein have assumed power of attorney through such hidden adhesion contracts through lack of full disclosure, these documents, including the fraudulent mortgage contracts are now cancelled and made null and void. Personal Jurisdiction and subject of Citizenship status is a" follows: a) If a man or woman is born in Washington, D.C. or any of the U.S. Territories or Possessions of the 'UNITED STATES', you are a 'U.S. citizen' since the Act of 1871; a 'Citizen of the United States' is clearly defined in 26 CFR 31.3121 (e) (b) to be "a citizen of the Commonwealth of Puerto Rico or the Virgin Islands, and, effective January 1, 1961, a citizen of Guam or American Samoa. b) If you were born in one of the fifty (50) States of the Union [The Republic] you are an 'American citizen' and one of the people you have never been subject to the exclusive jurisdiction of the 'UNITED STATES' [federal government or federal corporation]; the 50 States of the Union, as found in the Constitution for the United States of America, Article IV, Section 4 states, "The United States shall guarantee to every State in this Union a Republic form of government... American people live in the independent, sovereign State, under a Republic form of government
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where all God-given Rights are protected under common law. FURTHERMORE, the 10 Amendment of the Constitution for the United States of America states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. "
c) The term 'United States' geographically defined, in the Internal Revenue Code, relates only to the Federal Government and the exclusive [sovereign] jurisdiction thereof. d) The term 'United States of America' geographically defined refers to the fifty (50) States of the Union in which the federal government has very limited jurisdiction. e) 'States' in regard to the Federal Zone are considered to be: Guam, Puerto Rico, Virgin Islands and American Samoa and the land ceded over to the Federal Government that are within the areas of the 50 States. f) 'States' in regard to The Republic are the States of the Union such as: New York, Washington, California, Mississippi, Texas, Wyoming, etc. Dismissal is mandatory under Federal Rules of Civil Procedure 12(b) (3), a) The DEFENDANT and the Third Party Defendant, shane-christopher family buczek, in the first judicial district of tens does not reside within the jurisdiction of the UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK BUFFALO DIVISION which is without the jurisdiction of the "United States of America". The "UNITED STATES GOVERNMENT" is a foreign corporation with respect to the fifty States which is affirmed by U.S. v. Perkins, 16 S. Ct. 1073, 163 U.S. 625.41 L Ed. 287; FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED F.R.Civ.P. 12(b) (6) Dismissal is mandatory under the Federal Rules of Civil Procedure 12(b)(6), whereby the Petitioner has failed to state a claim upon which relief can be granted; it is a fact
rd
pursuant to House Joint Resolution 192, 73 Congress, Session 1, Ch. 48, June 1933 that our financial system is strictly a credit system with no lawful constitutional money in circulation to pay a debt; all the "people" can do is discharge a debt with the issuance of one's credit as a "promise to pay" and/or a "promissory note" and this was accomplished by the Defendant.
IMPROPER VENUE F.R.Civ.P. 12(b) (3) Rule 17 a See Appendices 3
As Petitioner establishes, Public Law 80-772, introduced as H.R. 3190, was passed by the House in the first session of Congress in June 1947 3, sent to the Senate in June 1947, but not voted on. Congress then adjourned twice in 1947, was reconvened by the President twice in 1947 (according to British law when Congress is called back into session all prior legislation is terminated), then adjourned by a declared sine die adjournment in December 1947. In the second session of Congress, in June of 1948, the same bill, H.R. 3190, not a new bill as would be required by British law, surfaced in the Senate, and the Senate materially amended it. The House then was asked to concur in the amendments, but never asked to vote on the amended bill. (A letter from Jeff Trandahl, dated in 2000), available to the court, and verified by the House library as valid, confirms the error) and Harley G. Lappin Sent Monday,July 27,2009 3:17 PM Director, Federal Bureau of Prisons NO QUORUM never passed by Congress required by Article 1,Sec. 5, Clause 1 of the Constitution. See Appendices 1 Harley G. Lappin July 27,2009 HONORABLE H. KENNETH SCHROEDER,JR. January 16,2009 9:54 a.m. transcripts page 2 line 18-20 ,page 3 line 10-18,page 5 line 24-25,page 6 line 2-7,page 7 line 23-25, page 8 line 17-20,page 9 line 1-2, AND QUOTE MAGISTRATE JUDGE SCHROEDER page 11 line 9-10 The Constitution of the United States is the highest law in the land, page 11 line 11-25 and page 15 line 15-25,page 16 line 1-16 See Appendices 2 Shows
In fact, there was no quorum in Congress when the bill was passed by the House: The speaker. The question is on the amendment offered by the gentleman from Pennsylvania (Mr. Walter). The question was taken; and the Speaker being in doubt, the House divided, and there were-ayes 38, noes 6. So the amendment was agreed to. The bill was ordered to be engrossed and read a third time, was read the third
NO CRIMINAL INTENT AND The United States Constitution of the United States is the highest law in the land. See Appendices 4 NATIONAL ARCHIVES AND RECORDS ADMINSTRATION BY ALOHA SOUTH FEB.21,2007 TITLE
ASSISTANT BRANCH CHIEF, NWCTB NATIONAL ARCHIVES and RECORDS ADMINISTRATION 700 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20408 Certified Copy of the Constitution 1787 September 17th Thus the House passed one bill in 1947, the Senate passed a different bill in 1948. After the passage, Congress fully adjourned sine die on June 20, 1948 at 7 AM. The bill was then truly enrolled. But which bill was enrolled as the bill passed? It was the House bill, which passed the House in 1947, but not the Senate.Big Mistake; Constitutional Mistake.So the House passed Title 18 in 1947, but the Senate did not. The Senate amended the bill in the second session in 1948, but did not vote on it. After Congress was completely and fully adjourned, and the members were disbanded, the President pro tempore and the Speaker of the House signed the bill into law on June 23, 1948. At that time Congress was disbanded and completely and fully adjourned. Another Big Mistake, Constitutional Mistake. But which bill was signed into law? The truly enrolled bill? No. It was the bill passed by the Senate, but not the House. Huge mistake, Constitutional mistake. Then the Senate bill, never passed by the House, was signed into law' by the President on June 25, 1948, while Congress was disbanded and not in session.Bigger mistake, Error of Constitutional and Bill of Rights Proportions. Then, to compound the errors, the bill was never placed in the Federal Register as was required by the Federal
time, and passed, and a motion to reconsider was laid on the table. May 12, 1947, Congressional Record, House. App. 46. App. Pg. 46.
Register Act, 44 USC 1501, et seq. (1935). Another error of Constitutional proportions. It was bad enough that the President was a democrat and the Speaker of the House and President pro tempore of the Senate were Republicans, and openly ridiculed each other and hated each other. However, that is no excuse to ignore the Constitution they all had taken an oath to uphold. Thus, a political bill, not a Constitutional bill passed by Congress, is being used as the basis to imprison Petitioner, in direct violation of the Constitution of the United States. These actions amount to nothing less than peonage and slavery, acts never condoned by our founding fathers. It should be noted that no appellate court has made proper findings of fact and law on the issues presented. See 5 USC 557 (c)(3) Findings of Facts and Conclusion of law required for all decisions which was never given in all three case 08-cr-054,09-cr-121 and 09-cr-141.See Appendices 5 Judge William M. Skretny It should also be noted that no district court case has precedent value, and that for a district court to even hear the issue and avoid it, ignore it, or make an improper ruling (as some district court judges have done), is a violation of 28 USC 455, 18 USC sections 241 and 242, and a prima facie case of bias and structural error and possible grounds for the impeachment of the judge for committing treason against the Constitution (the Supreme Court has determined that jurisdiction is a threshold issue, which must be determined first and that district courts of the United States are presumed to know the law). Such lower court bias and Due Process violations are clearly Appendicesed in the lower court proceedings to date, when the court continued with the proceedings without jurisdiction. It should also be noted that for the government to attempt to use non-precedent
cases that made no proper findings and were made by a judge who had a prima facie case of bias and conflict, and was trying to protect his/her own liability for acting without jurisdiction, would probably amount to sanctionable conduct. The government's typical arguments also would not work and should require sanctions. 1) For the government to argue sine die would amount to a smoke and mirrors deflection and sanctionable conduct, because although sine die is a valid argument, Petitioner is not raising that issue here. 2) For the government to argue Field & Cos enrolled bill rule would also amount to smoke and mirrors and sanctionable conduct, because the Constitutional quorum issue is precluded from Field & Co.s enrolled bill rule by its own terms, i.e. [the] signingin open session, of an enrolled bill, 143 U.S. at 672, which in any case only applies in the absence of a Constitutional requirement binding Congress. United States v. MunozFlores, 495 U.S. at 391, n.4. 3) If the government makes the bogus argument that the court can claim jurisdiction pursuant to the prior statute, that would also amount to smoke and mirrors and sanctionable conduct, because P.L. 80-773, June 25, 1948, Ch. 646, 1, 62 Stat. 869, positively repealed the former criminal jurisdiction granted to the district courts under the prior statute. Even if it had not, Petitioner was not charged under the prior statute, which carries different penalties and terms, and the attempt to nunc pro tunc the prior statute would be a violation of the Fair Warning Doctrine, and fraud by the government or court, whichever attempted to raise the bogus argument. Furthermore, neither the court nor the government can declare the argument frivolous. That would amount to nothing more than a smokescreen, an attempt to deflect the truth, which the courts are required to find as part of their function as arbitrator of the truth: The typical definition in United States law (frivolous) is very different from its
colloquial or political meaning. United States courts usually define "frivolous litigation" as a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law, (Wikepedia) or because laws are in place unequivocally prohibiting such a claim (see Good Samaritan law). In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court's and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt. Lawyer Daniel B. Evans writes:
[W]hen a judge calls an argument "ridiculous" or "frivolous," it is absolutely the worst thing the judge could say. It means that the person arguing the position has absolutely no idea of what he is doing, and has completely wasted everyone's time. It doesn't mean that the case wasn't well argued, or that judge simply decided for the other side, it means that there was no other side. The argument was absolutely, positively, incompetent. The judge is not telling you that you were "wrong." The judge is telling you that you are out of your mind. Wikepedia.
Frivolous litigation is the practice of starting or carrying on law suits that have little to no chance of winning. There are both legal and colloquial definitions of the term. In popular usage, lay persons typically call a lawsuit "frivolous" if they personally find a claim to be absurd, regardless of its legal standing. But in official usage, as by the judiciary of the United States, "frivolous litigation" is considered to consist of a legal claim or defense presented even though the party or the party's legal counsel had reason to know that the claim or defense was manifestly insufficient or futile, that is to say, had no legal merit. The remainder of this article discusses the usage of the term within the legal profession. Frivolous litigation may be based on absurd legal theories, may involve a superabundance or repetition of motions or additional suits, may be uncivil or harassing to the court, or may claim extreme remedies. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law. A claim may be deemed frivolous because existing laws unequivocally prohibit such a claim (see Good Samaritan law).
In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court's and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt.
Frivolous litigation, as used in colloquial and political terms in the United States, refers to lawsuits that are based on a theory that seems absurd, or where the claim results in damages that greatly exceed what one would expect from reading a brief summary of the case. Awards for medical malpractice are sometimes derided as frivolous (in this sense of meaning "excessive"). If a jury and a judge decided in favor of the plaintiff in such cases, the plaintiff's claim was not technically frivolous in legal terms, though it might be considered frivolous colloquially. Because of the ambiguity in the term, calling these lawsuits "frivolous" can lead to confusion because opposite sides of the tort reform debate can both say they oppose "frivolous" suits, with the tort reform supporters referring to the colloquial understanding, and tort reform opponents referring to the narrower technical definition. The typical definition in United States law is very different from its colloquial or political meaning. United States courts usually define "frivolous litigation" as a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law, or because laws are in place unequivocally prohibiting such a claim (see Good Samaritan law). In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because a frivolous defense or claim wastes the court's and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt. See Appendices 10 Profile of Daniel B. Evans from Philadelphia
A statement of frivolous requires findings of fact and law related to the claim.
Since neither the government nor the court can dispute the facts and law related to the invalidity of Title 18, Petitioner requests that the court adopt Petitioner s findings of fact and law as those of the court. Since the Supreme Court has declared that all actions cease once jurisdiction is challenged, and that jurisdiction is a threshold issue that must be resolved prior to any future actions by the court or government, and since the facts and law clearly establish in this habeas that the claim is valid and has merit, and that the court has no jurisdiction, any argument to the contrary without making specific findings of fact and law would be an attempt to circumvent the Constitution of the United States by the government, the court, or both, and thus, sanction able conduct. Note: The United States Supreme Court has repeatedly held that any judge who acts without jurisdiction is engaged in an act of treason.U.S. v. Will 499 US 200, 216, S.Ct. 471, 66 L.Ed 2d 392,406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264 404, 5 L. Ed. 257 (1821). And 22 USC 611 Foreign Agents of Foreign Principals
II.
JURISDICTION OF THIS COURT TO ISSUE ORDER
This court has jurisdiction to hear this Petition pursuant to 28 USC 2241(a) and 28 USC 1651, the All Writs Act. 28 USC 2241(a) states that Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdiction. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. 28 USC 2241(c )(3) states that The writ of habeas corpus shall not extend to a prisoner unless He is in custody in violation of the Constitution or laws or treaties of
the United States. 28 USC 2243 states: A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed. The person to whom the writ or order is directed shall make a return certifying the true cause of the detention. When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed. Petitioner requests the court to take judicial notice that 28 USC section 2241, et seq. is still valid law and has not been overturned and is the only extraordinary remedy available for illegal confinement. Since Petitioner is restrained by ankle bracelet and liberties authorized by the Constitution, and is about to be further constrained, 28 USC section 2241, et seq. is the proper remedy. III. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article I, 1, commands and declares that [a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Article I, 5, Cl. 1, commands, in relevant part, that a Majority of each [House of Congress] shall constitute a Quorum to do Business, excepting therefrom permission to adjourn from day to day and to compel Attendance of its Members, in such Manner, and under such Penalties as each House may provide.
Article I, 7, Cl. 2, commands, in relevant part, that [e]very Bill which shall have passed both Houses, shall, before it becomes a Law, be presented to the President of the United States. Article I, 7, Cl. 3, commands, in relevant part, that [e]very Resolution to which the Concurrence of the Senate and House of Representatives may be necessary shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the case of a Bill. Title 1, United States Code, Section 106, Act of July 30, 1947, Chapter 388, Title I, Ch. 2, 106, 61 Stat. 634, Pub.L. 80-278, provides, in relevant part, that [w]hen [a] bill shall have passed both Houses, it shall be printed and shall then be called the enrolled bill and shall be signed by the presiding officers of both Houses and sent to the President of the United States. Amendment I to the Constitution of the United States commands: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment Five to the Constitution of the United States commands: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 28 USC 455 commands: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge's knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (d) For the purposes of this section the following words or
phrases shall have the meaning indicated: (1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian; (4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization; (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities. (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. (f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or
herself of the interest that provides the grounds for the disqualification.
F.R.Crim.P. 3 commands: The complaint is a written statement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer. The Eighth Amendment to the Constitution commands: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment. The Thirteenth Amendment to the Constitution commands: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. IV. STATEMENT OF FACTS
In one unbelievable day, March 7,2008, an Bogus INDICTMENT 08-cr-054 was given to me by Judge Spero in the Northern District of California I told him I do not consent and this is not my name. The Indictment had no injury party which is now a false arrest and further Judge Spero directed the living man to appear in Buffalo,New York March 14,2008 based on a false indictment by AUSA Anthony Bruce. Than on March 14,2008 AUSA Anthony Bruce asked for a cash bail of $ 25,000.00 and a total bail of $ 50,000.00 See Page 29 line 21-23,and than another Bogus Indictment 09-cr-121 May 6,2009 and than againt May 7,2009 See Appendices 7 Transcripts 03/14/2008,05/06/2009 and 05/07/2009 against Petitioner, all initial appearance where Hon.H. Kenneth Schroeder entered, a NOT GUILTY plea and OBJECTION was noted .Where was the investigation of the case and the requirement to protect Petitioners rights by the court? Where is the really party of interest? Or the injury party that is not INSOLVENT?
V. ISSUE ONE: SINCE NO VALID PROBABLE CAUSE AFFIDAVIT WAS ISSUED, THE FOURTH AMENDMENT WAS VIOLATED AND
JURISDICTION CEASED AT THAT POINT The court should take notice that the Constitution of the United States is the Supreme Law of the Land, and is the contract between the people of the United States and its government. Each officer of the court took an oath of office to uphold the Constitution. The Fourth Amendment to the Constitution requires: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and not Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' F.R.Crim.P. 3 requires: 'The complaint is a written statement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.' F.R.Crim.P. 4(a) requires: If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an officense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it........ An affidavit is a formal sworn statement of fact, signed by the declarant (who is called the affiant or deponent) and witnessed (as to the veracity of the affiant's signature) by a taker of oaths, such as a notary public. The name is Medieval Latin for he has declared upon oath. In American jurisprudence, under the rules for hearsay, admission of an unsupported affidavit as evidence is unusual (especially if the affiant is not available
for cross-examination) with regard to material facts which may be dispositive of the matter at bar. http://en.wikipedia.org/wiki/Affidavit. An affidavit is required to provide that the person filing the affidavit is over the age of the majority, has personal knowledge of the facts stated, and if fully competent to testify to those facts. The defendants docket sheet shows no valid criminal complaint or probable cause affidavit.
In Giordenello v. United States, 357 U.S. 480 (1958), the Supreme Court determined, that with no indictment on his complaint, a federal officer obtained a warrant for petitioners arrest, but obtained no search warrant. His complaint was not based on his personal knowledge, did not indicate the source of his belief that petitioner had committed a crime, and set forth no other sufficient basis for a finding of probable cause. With this warrant, he arrested petitioner and seized narcotics in his possession. The arrest and seizure were not challenged at petitioners arraignment, but a motion to suppress the use of the narcotics in evidence was made and denied before his trial. They were admitted in evidence at his trial in a federal district court, and he was convicted. The Supreme Court held that the arrest and seizure were illegal, the narcotics should not have been admitted in evidence, and petitioners conviction must be set aside. Id. Pg. 481-488. 1. By waiving preliminary examination before the Commissioner, petitioner did not surrender his right to contest in court the validity of the warrant on the
grounds here asserted. Id., pg. 483-484. 2. Under Rules 3 and 4 of the Federal Rules of Criminal Procedure, read in the light of the Fourth Amendment, probable cause was not shown by the complaint, and the warrant for arrest was issued illegally. Id., pg. 484-487. 3. Having relief entirely in the courts below on the validity of the warrant, the Government cannot contend in the Supreme Court that the arrest was justified apart from the warrant, because the arresting officer had probable cause to believe that petitioner had committed a felony; nor should the case be sent back to the district court for a special hearing on probable cause. Id., pg. 487488. The defendants docket sheet shows no valid criminal complaint or probable cause affidavit. As per the 4th Amendment and Giordenello, infra, without a valid complaint, jurisdiction ceases and the case must be dismissed. The actions of the government are a violation of F.R.Crim.P. 3, United States Constitution Article IV and V, and the oath of office of the government officials involved. Jurisdiction ceased at the first Due Process violation and all proceedings from that point forward are nullities. VI: ISSUE TWO: THE COURT LACKS JURISDICTION TO PROSECUTE PURSUANT TO TITLE 18 OF THE CRIMINAL CODE Petitioner requests this Court dismiss the information and judgment with
prejudice and issue an order rendering Defendants information and conviction void, or alternatively, due to the courts lack of jurisdiction and their conflict of interest pursuant to 28 USC 455, forward this Petition to the Supreme Court with instructions to declare
unconstitutional and void ab initio: (1) Public Law 80-772 which purported to enact Title 18, United States Code, Act of June 25, 1948, Chapter 645, 62 Stat. 683 et seq., and (2) more specifically, Section 3231 thereof, 62 Stat. 826, which purported to confer upon the district courts of the United States original jurisdiction of all offenses against the laws of the United States. These legislative Acts violated the Quorum, Bicameral and/or Presentment Clauses mandated respectively by Article I, 5, Cl. 1, and Article I, 7, Cls. 2 and 3, of the Constitution of the United States. The federal district court which rendered judgment and ordered commitment of this Petitioner, under Section 3231, lacked jurisdiction and, therefore, the judgment and commitment order is void ab initio. To imprison and detain a Petitioner under a void judgment and commitment order is unconstitutional and unlawful. Therefore, Petitioner must be discharged from any
present confinements and his judgment must be declared void immediately to prevent ongoing or future harm. Further structural error occurred in the passage of Title 18 of the criminal code because the statute violates the Federal Register Act, 44 USC 1501, et seq. (1935) as no notice was served on the public as required by the act. The[se] facts set forth by petitioner must be accepted as true, and Petitioner is entitled to a hearing to establish the truth of those allegations. Reynolds v. Cochran, 365 U.S. 525, 528, 533 (1961). Failure to hold a hearing is a violation of the Reynolds v. Cochran standard. Furthermore, the failure to allow Petitioner to be heard before trial or sentencing would violate Due Process (5th Amendment), the pro se rule, the Do No Harm Rule, and would establish that the District Court was not independent pursuant to these proceedings.
1.
JURISDICTION OF THIS COURT TO HEAR THIS WRIT
The court has jurisdiction to hear this habeas, however the district court has a direct conflict of interest in ruling on its own jurisdiction pursuant to 28 USC 455, since the district court judge is civilly liable for acting without jurisdiction. This direct conflict of interest almost mandates that all proceedings be stayed and the district court forward the issue directly to the Supreme Court for a ruling. It should also be noted that the United States District Court for the Northern District of Iowa has agreed to hear the argument in U.S. v. Russell James Hodge and that case is currently pending. For this district court to proceed to confinement while this issue is currently pending in the Eighth Circuit would raise serious questions as to the bias of this court and the independence of this court in its proceedings. 2. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Article I, 1, commands and declares that [a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Article I, 5, Cl. 1, commands, in relevant part, that a Majority of each [House of Congress] shall constitute a Quorum to do Business, excepting therefrom permission to adjourn from day to day and to compel Attendance of its Members, in such Manner, and under such Penalties as each House may provide. Article I, 7, Cl. 2, commands, in relevant part, that [e]very Bill which shall have passed both Houses, shall, before it becomes a Law, be presented to the President of the United States. Article I, 7, Cl. 3, commands, in relevant part, that [e]very Resolution to which the Concurrence of the Senate and House of Representatives may be necessary shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the case of a Bill. Title 1, United States Code, Section 106, Act of July 30, 1947, Chapter 388, Title
I, Ch. 2, 106, 61 Stat. 634, Pub.L. 80-278, provides, in relevant part, that [w]hen [a] bill shall have passed both Houses, it shall be printed and shall then be called the enrolled bill and shall be signed by the presiding officers of both Houses and sent to the President of the United States. Amendment V to the Constitution commands that No person shall be held for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in active service in time of War or public danger, nor shall any person be subject to the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without Due Process of law; nor shall private property be taken for public use, without just compensation. 28 USC 455 (a) states: Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 3. STATEMENT OF FACTS committed into Executive custody by order of the United
Petitioner is being
States District Court, acting pursuant to the grant of original jurisdiction purportedly created by Public Law 80-772, Title 18, United States Code, Section 3231. By virtue of the commitment order, Petitioner is committed into the custody of the Attorney General and into the custody of the United States Marshals. See 18 U.S.C. 4082(a) (repealed) and 3621(a) (enacted Oct. 12, 1984, and effective Nov. 1, 1987). The text of the bill, H.R. 3190 as amended, which became Public Law 80-772 (enacting Title 18, United States Code, and especially Section 3231), was passed only by the Senate and never passed by the House of Representatives. Moreover, that bill was never certified as enrolled, and was surreptitiously signed by the Speaker of the House and President pro tempore of the Senate under purported authority of a concurrent resolution agreed to by a Congress denounced by President Truman as a body dominated by men with a dangerous lust for power and privilege, 27 Encyclopedia
Americana 175 (2005), without quorums of the respective Houses sitting. Finally, that bill was mistakenly signed by the President of the United States after it was misrepresented to him by solitary Officers as a bill passed by both Houses, which was impossible, since no Congress was in session. For those reasons, Public Law 80-772 which purportedly enacted Title 18, United States Code, Act of June 25, 1948, Chapter 645, 62 Stat. 683 et seq. and Section 3231 thereof, 62 Stat. 826, purporting to confer upon the district courts of the United States original jurisdiction of all offenses against the laws of the United States violates Article I, 5, Cl. 1, and Article I, 7, Cls. 2 and 3, and is therefore unconstitutional and void ab initio. The district court, which acted against Petitioner, did so without
jurisdiction and Petitioners indictment and commitment order is void ab initio, and any imprisonment and confinement thereunder is fundamentally unconstitutional and unlawful. 4. H.R. 3190 In The First Session Of The 80th Congress
H.R. 3190 was introduced and committed to the Committee of the entire House of Representatives on the State of the Union of the First Session of the 80th Congress entitled Crimes and Criminal Procedure. See House Report No. 304 (April 24, 1947), p. 1 (App. 67). See also 94 Cong. Rec. D556-D557 (Daily Digest) (charting H.R. 3190) (App. 65-66). H.R. 3190 differed from five bills which preceded it [because] it constitute[d] a revision, as well as a codification, of the Federal laws relating to crimes and criminal procedure. 93 Cong. Rec. 5048-5049 (May 12, 1947) (App. 45-46). The bill was intended (1) to revise and compile all of the criminal law, (2) to restate[] and consolidate[] existing statutes, (3) to repeal obsolete, superseded, redundant and
repetitious statutes, (4) to coordinate the Criminal Code with the Federal Rules of Criminal Procedure formerly enacted, and (5) to clarify and harmonize penalties of the many acts passed by Congress which were found to be almost identical. (Id.) The bill was ordered to be engrossed and read a third time, was read a third time, and passed the House on May 12, 1947, id.; Journal of the House of Representatives (House Journal), May 12, 1947, pp. 343-344 (App. 4-5); 94 Cong. Rec. D556-D557 (showing H.R. 3190s only passage by the House of Rep. on May 12, 1947), sent to the Senate and there referred to the Committee on the Judiciary. 93 Cong. Rec. 5121, May 13, 1947 (App. 47); Journal of the Senate (Senate Journal), May 13, 1947, p. 252 (App. 10). As passed and enrolled by the House of Representatives H.R. 3190 included at section 3231, Subtitled District Courts, the following text: Offenses against the United States shall be cognizable in the district courts of the United States, but nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof. H.R. 3190 as passed by the H. of Rep., p. 367, 3231 (App. 110). See United States v. Sasscer, 558 F. Supp. 33, 34 (D.MD. 1982). On July 27, 1947, Congress adjourned without the Senate passing H.R. 3190. See 93 Cong. Rec. 10439, 10522 (July 26, 1947) (App. 48-49). On November 17, 1947, Congress reconvened pursuant to a Presidential proclamation. Yet, Congress again
adjourned sine die on December 19, 1947, without the Senate passing H.R. 3190. Kennedy v. Sampson, 511 F.2d 430, 444 Appendix n. 4 (D.C. Cir. 1974). 5. H.R. 3190 In Second Session Of The 80th Congress
The Senate Committee on the Judiciary reported amendments to H.R. 3190 on June 14, 1948, under Sen. Rep. No. 1620. 94 Cong. Rec. 8075 (June 14, 1948) (App. 50); Senate Journal, June 14, 1948, p. 452 (App. 34). Sen. Rep. No. 1620 contained a large volume of amendments and the new Federal Rules of Criminal Procedure [were] keyed to the bill and [were] reflected in part II of [the new proposed] title 18. Heralding that, upon passage of the amended bill, [u]ncertainty will be ended, the Senate wanted the amendments adopted en bloc, including a new jurisdictional section for Title 18. 94 Cong. Rec. 8721 (App. 51). The report contained only the proposed amendments. See Sen. Rep. No. 1620, pp. 1 & 4 (App. 103-104). [T]he amendments were considered and agreed to en bloc and then ordered to be engrossed. 94 Cong. Rec. 8721-8722 (June 18, 1948) (App. 51-52), Senate Journal, June 18, 1948, p. 506 (H.R. 3190, as amended, passed the Senate) (App. 37). It was moved that the Senate insist upon its amendments by the House (94 Cong. Rec. at 8722); and [o]rdered that the Secretary request the concurrence of the House of Representatives in the amendments. Senate Journal, supra, p. 506; House Journal, June 18, 1948, p. 688 (App. 16). The House received the proposed amendments. The Clerk read the Senate
amendments collectively into the record with which the House concurred. 94 Cong. Rec. 8864-8865 (June 18, 1948) (App. 53-54); House Journal, June 18, 1948, p. 704 (the said Senate amendments were concurred in) (App. 17). Although [t]he House agreed to the amendments to H.R. 3190, Senate Journal, June 18, 1948, p. 510 (App. 38), no action was taken on H.R. 3190 as amended. The Journal of the House of Representatives is devoid of any vote on H.R. 3190 itself on June 18, 1948, and thereafter through
adjournment on June 20, 1948. Moreover, the official historical chart of H.R. 3190 clearly shows the only passage by the House of Representatives occurring on May 12, 1947, and specifically references volume 93, page 5048 of the Congressional Record as the recorded date the House passed the bill. 94 Cong. Rec. D556-D557 (Daily Digest). 6.Congress Agreed By Resolution To Continue Legislative Business By A Single Officer Of Each House During Adjournment
On June 19, 1948, the House submitted and agreed to concurrent resolutions H.Con.Res. 218 and 219 and requested concurrence by the Senate. House Journal, June 19, 1948, pp. 771-772 (App. 19-20); Senate Journal, June 18, 1948, p. 577 (App. 39). [T]he Senate [then] passed without amendment these concurrent resolutions of the House. 94 Cong. Rec. 9349 (App. 57). H.Con.Res. 218 provid[ed] adjournment of the two Houses of Congress until December 31, 1948, id.; see Concurrent Resolutions, Second Session, Eightieth Cong., H.Con.Res. 218, June 20, 1948, 62 Stat. 1435-1436 (App. 105-106). H.Con.Res. 219 authorize[ed] the signing of enrolled bills following adjournment, 94 Cong. Rec. 9349, specifically resolving: That notwithstanding the adjournment of the two Houses until December 31, 1948, the Speaker of the House of Representatives and the President pro tempore of the Senate be, and they are hereby, authorized to sign enrolled bills and joint resolutions duly passed by the two Houses and found truly enrolled. See Concurrent Resolutions, supra, H.Con.Res. 219, June 20, 1948, 62 Stat. 1436. Congress adjourned on June 20, 1948, pursuant to H.Con.Res. 218. 94 Cong. Rec. 9348, 9169 (App. 56, 55); House Journal, June 20, 1948, p. 775; Senate Journal, June 20, 1948, p. 578 (App. 40). Both Houses reconvened on July 26, 1948, pursuant to a proclamation of President Truman. Senate Journal, July 26, 1948, p. 593 (showing
reconvention); House Journal, July 26, 1948, pp. 792-793 (same). 7. Post-Adjournment Signing Of H.R. 3190 By Single Officers Of The Houses, Presentment To & Approval Thereof By The President Pursuant To H.Con.Res. 219 With both Houses adjourned, with no quorum, disassembled and dispersed, Mr. LeCompte, the Chairman of the Committee on House Administration reported that that committee had found H.R. 3190 truly enrolled. House Journal, legislative day of June 19, 1948, p. 776 (recorded under heading BILLS AND JOINT RESOLUTIONS ENROLLED SUBSEQUENT TO ADJOURNMENT) (App. 22). He attached his
certificate of enrollment to the original H.R. 3190 passed by the House on May 12, 1947. See H.R. 3190, certified after adjournment as truly enrolled (as certified by Richard H. Hunt, Director, Center for Legislative Archives, The National Archives, Washington, D.C.) (App. 107-113). Although never certified as truly enrolled, the Speaker and
President pro tempore respectively signed the Senates amended H.R. 3190 on June 22 and 23, 1948. 94 Cong. Rec. 9353-9354 (App. 58-59); House Journal, legislative day June 19, 1948, p. 777 (App. 23); Senate Journal, legislative day June 18, 1948, pp. 578579 (App. 40-41). National Archives & Records Adm. Cert., H.R. 3190 signed by House and Senate officers and President Truman (App. 114-117). The Senates amended H.R. 3190 was presented by the Committee on House Administration to Pres. Truman, June 23, 1948, who signed it June 25, 1948, 12:23 P.M. E.D.T., 94 Cong. Rec. 9364-9367 (App. 61-64); House Journal, legislative day June 19, 1948, pp. 778, 780-782 (App. 24, 25-27); Senate Journal, legislative day of June 18, 1948, pp. 579, 583 (App. 41, 43). Natl. Archives & Records Adm. Cert., H.R. 3190, supra; 94 Cong. Rec. D557 (Daily Digest).
8. The Signatories Of H.R. 3190 Knew the Enacting Clause Was False When Signed Public Law 80-772 stated that the enactment proceeded by the Senate and House of Representatives of the United States of America in Congress assembled. See
National Archives & Records Adm. Cert., H.R. 3190 as signed into P.L. 80-772, supra. Each signatory knew that neither House legislatively existed at that time, and the legislative process had ceased within the terms of Article I, 5 and 7 on June 20, 1948. 9. Public Law 80-772 Is Unconstitutional And Void Because H.R. 3190 Never Passed Both Houses As Required By Article I, Section 7, Clause 2 a. THE LEGAL PRINCIPLES
This case presents the profoundly important issue, of the constitutionality of an act of Congress matters of such public importance as to justify deviation from normal appellate practice and to require immediate determination by this Court. Clinton, 524 U.S. at 455 (Scalia, J., and OConner, J., joining in part and dissenting in part) (adopting language directly from Sup. Ct. R. 11). Although [a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives, (Art. I, 1, U.S. Constitution), when [Congress] exercises its legislative power, it must follow the single, finely wrought and exhaustively considered procedures specified in Article I. Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 274 (1991) (quoting INS v. Chadha, 462 U.S. at 951). Article I establishes just how those powers are to be exercised. INS v. Chadha, 462 U.S. at 945.
An act of Congress does not become a law unless it follows each and every procedural step chartered in Article I, 7, cl. 2, of the Constitution. Landgraf v. USI Film Products, 511 U.S. 244, 263 (1994) (citing INS v. Chadha, 462 U.S. at 946-951 (emphasis added)); Clinton, 524 U.S. at 448 (noting requisite steps taken before bill may become a law and holding that a procedurally defective enactment cannot become a law pursuant to the procedures designed by the Framers of Article I, 7, of the Constitution). The Constitution requires three procedural steps: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. If one paragraph of that text had been omitted at any one of those three stages, [the] law [in question] would not have been validly enacted. Clinton, 524 U.S. at 448 (emphasis added). Between the second and third procedural steps, the bill shall be presented to the President Article I, 7, Cl. 2. The text of H.R. 3190 passed by the House of Representatives was the text as it existed on the date of passage i.e., May 12, 1947. Whereas, the text of the bill passed by the Senate on June 18, 1948, was H.R. 3190 as amended. Senate Journal, June 18, 1948, p. 506. Thus, the text of the bills passed by the respective Houses was grossly different and neither bill ever became a law. Clinton, 524 U.S. at 448. 10. Permitting Post-Adjournment Legislative Business Pursuant To H.Con.Res. 219 Violated The Quorum, Bicameral And Presentment Requirements Of Article I Of The Constitution After Congress adjourned on June 20, 1948, pursuant to H.Con.Res. 219, a single officer of each House of Congress signed a bill purporting to be H.R. 3190 on June 22And when I look at the totality of the circumstances in these three indictments, I am rapidly coming to the conclusion 42 without making a formal legal finding that Mr. Bruce is bent on a path of vindictiveness and retaliation against this defendant. He reminds me and my memory doesn't serve me well enough to pull up the name -- but he is the inspector fromLes Miserables who would spend 20 years chasing the man who stole a loaf of bread because he was starving. (Page 22 line 21-25 and page 23 line 1-3) QUOTE Judge KENNETH SCHROEDER, JR August 20,2009 1:47 PM
23, 1948, 94 Cong. Rec. 9354; House Journal, legislative day of June 19, 1948, p. 777; Senate Journal, legislative day of June 18, 1948, pp. 578-579, and presented that bill to the President, who signed it on June 25, 1948. 94 Cong. Rec. 9365-9367. Thus, the postadjournment signature provision [of H.Con.Res. 219] was an important part of the legislative scheme, leading to the enactment of Public Law 80-772, without which it would never have become a Law. Bowsher v. Synar, 478 U.S. 714, 728 (1986). Public Law 80-772 falsely stated it was enacted while both Houses were in Congress assembled, when in fact Congress was not in session. See National Archives & Records Adm. Cert., H.R. 3190 as signed into P.L. 80-772. The bill signed was the Senates amended H.R. 3190 a bill never certified as truly enrolled, compare Pub.L. 80-772, Enactment Clause & signature pages with H.R. 3190, certified as truly enrolled, supra, and H.Con.Res. 219 never authorized the signing of unenrolled bills after adjournment. See H.Con.Res. 219, supra, 62 Stat. 1436. Article I, 5, Clause 1 mandates a quorum of both Houses of Congress to do Business. This constitutional requirement has been enforced by practice, Rules of the Houses, custom, Supreme Court holdings and duly enacted statutes. 1 U.S.C. 101 requires every enacting clause of all Acts of Congress to state: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. Although the bill after passage by both Houses must be enrolled following which it shall be signed by the presiding officers of both Houses and sent to the President of the United States, 1 U.S.C. 106, the actual procedure is regulated by House rules and established practice. Following passage the chairman of the Committee on House Administration affixes to the bills examined a
certificate that the bill has been found truly enrolled, House Doc. No. 769, supra, Stages of a Bill, 983, No. 16, p. [483] (App. 79), after which the enrolled bill is first laid before the House of Representatives and signed by the Speaker after which it is transmitted to the Senate and signed by the President of that body. Id., No. 17, p. [484] (App. 80). The Supreme Court in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), defined the essence of this procedure: The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. 143 U.S. at 672 (emphasis added). 1 U.S.C. 106 codified this implicit constitutional requirement. Reading 1 U.S.C. 101 and 106 together requires that all acts must occur at least through presentment to the President while Congress is in session. That the enrolled bill must be layed before the House prior to signing by the Speaker and then transmitted to the Senate before the signing by the President of that body concludes that the respective Houses must be in session during this transaction. An adjournment terminates the legislative existence of Congress. Pocket Veto Case, 279 U.S. at 681. Th[e] expression, a house, or each house, [when] employed with reference to the faculties and powers of the two chambers always means the constitutional quorum, assembled for the transaction of business, and capable of
transacting business. 279 U.S. at 683, quoting I Curtis Constitutional History of the United States, 486 n. 1. Moreover, the term House means the House in session, 279 U.S. at 682, and as organized and entitled to exert legislative power, that is, the legislative bodies organized conformably to law for the purpose of enacting legislation. Id. (quoting Missouri Pacific Railway Co. v. Kansas, 248 U.S. 276, 281 (1919)). See also House Doc. No. 355, supra, Hinds Precedents, 2939, p. 87 (The House is not a House without a quorum) (App. 87). No attestation or declaration by the two houses to the President, Field & Co., 143 U.S. at 672, that H.R. 3190 had passed Congress during the adjournment was possible because no such houses constitutionally existed. See also United States
National Bank of Oregon v. Independent Insurance Agents of America, 508 U.S. 439, 455 n. 7 (1993) (noting that the rule established in Field & Co., 143 U.S. at 672, made statutory by 1 U.S.C. 106 turned upon the enrolled bill, signed in open session by the Speaker of the House of Representatives and the President of the Senate). Longstanding precedence of the House affirms this. House Doc. No. 355, supra, Hinds Precedents, Vol. IV, 2951, pp. 90-91 (upon disclos[ure] that there is not a quorum .., [t]he House thereby becomes constitutionally disqualified to do further business) (excepting from disqualification the exceptions stated in Art. I, 5, Cl. 1) (emphasis added) (App. 88-89); id., 3458, p. 322 (The Speaker may not sign an enrolled bill in the absence of a quorum.) (App. 93); id. at 3486, pp. 332-333 (recognizing enrollment and
presentment to the President to be legislative business required to be completed before adjournment) (App. 95-96); id. at 3487, p. 333 n. 3 (presentment to the President is legislative business which must be completed before adjournment) (App. 96); id. at
4788, p. 1026 (The presentation of enrolled bills to the President of the United States is a transact[ion] of business of the House.) (App. 100). Once a bill has passed the House of Representatives it must be printed as an engrossed bill which then shall be signed by the Clerk of the House sent to the other House, and in that form shall be dealt with by that House and its officers, and, if passed, returned signed by said Clerk. 1 U.S.C. 106. In the immediate case H.R. 3190 was passed by the House of Representatives on May 12, 1947, engrossed and sent to the Senate and there referred to the Senates Committee on the Judiciary. See 93 Cong. Rec. 5048-5049, 5121; Senate Journal, May 13, 1947, p. 252. However, it was not dealt with nor passed in that form. Instead, amendments were proposed which were agreed to en bloc, read into the record and ordered to be engrossed, 94 Cong. Rec. 8721-8722. Then, the [amended] bill was read the third time and passed. 94 Cong. Rec. 8722; Senate Journal, June 18, 1948, p. 506. The House then concurred in the amendments en bloc. 94 Cong. Rec. 8864-8865; House Journal, June 18, 1948, p. 704. The House in which a bill originates enrolls it, House Doc. No. 769, supra, Stages of a Bill, No. 15, p. [483] (App. 79), and, in the case of House bills, the chairman of the Committee on House Administration affixes to the bills examined a certificate that the bill has been found truly enrolled, Id., No. 16, p. [483], after which it is laid before the House signed by the Speaker [then] transmitted to the Senate and signed by the President of that body. Id., No. 17, p. [484]. Unequivocally, [t]he Speaker may not sign an enrolled bill in the absence of a quorum. House Doc. No. 355, supra, Hinds Precedents, 3458, p. 322. Cf., id., 2939, p. 87 (The House is not a House without a
quorum.). The constitutional quorum issue is precluded from the Field & Co.s enrolled bill rule by its terms i.e., [t]he signing in open session, of an enrolled bill, 143 U.S. at 672 (emphasis added), which in any case only applies in the absence of [a] constitutional requirement binding Congress. United States v. Munoz-Flores, supra, 495 U.S. at 391 n. 4. Moreover, just as 7 gives effect to all of its Clauses in determining what procedures the Legislative and Executive branches must follow to enact a law, id., 495 U.S. 386 (emphasis by Court), so too does Article I, 5, Cl. 1 provid[e] that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, INS v. Chadha, 462 U.S. at 949-950, as to all legislative Business. Cf. United States v. Ballin, 144 U.S. 1, 3-5 (1892) (to determine whether constitutionally mandated quorum was present for legislative action the Court assume[s] the Journals of the Houses are to be considered to decide the issue). The bill signed by the Officers of the Houses, presented to and signed by the President of the United States, was the Senates amended bill, which never passed the House. H.Con.Res. 219 only authorized [the] sign[ing] [of] enrolled bills duly passed by the two Houses and found truly enrolled, H.Con.Res. 219, supra, 62 Stat. 1436, voiding the signatures on the amended bill. Having not been enrolled, certified as truly enrolled, or signed by the Speaker of the House with a quorum present, the bill was rendered constitutionally void. House Doc. No. 769, supra, Constitution of the United States, 55, p. [19] ([w]hen action requiring a quorum was taken in the ascertained absence of a quorum the action was null and void) (App. 74); House Doc. No. 355, supra, Hinds Precedents, 3497 &
3498, pp. 344-345 (such a bill is not in force and is not a valid statute) (App. 97-98). Cf., id., Hinds Precedents, 2962, p. 94 (to vacate legislative act the absence of a quorum should appear from the Journal) (App. 90). Art. I, 7, mandates that a bill that has passed both Houses shall before it becomes a Law, be presented to the President of the United States , Art. I, 7, Cl. 2; INS v. Chadha, 462 U.S. at 945, which can only contemplate a presentment by the Congress in some manner, [because] [a]t that point the bill is necessarily in the hands of the Congress. United States v. Kapsalis, 214 F.2d 677, 680 (7th Cir. 1954), cert. denied, 349 U.S. 906 (1955) (emphasis added). Thus, presentment is clearly part of the legislative procedure required as essential to enactment of a bill as law. INS v. Chadha, 462 U.S. at 945, 947, 951; La Abra Silver Mining Co. v. United States, 175 U.S. 423, 454 (1899) (After a bill has been presented to the President, no further action is required by Congress in respect of that bill, unless it be disapproved by him. ) (emphasis added). See House Doc. No. 355, supra, Hinds Precedents, Vol. IV, 4788, p. 1026 (recognizing that the presentation of enrolled bills to the President is a transact[ion] of business of the House); id., 3486, p. 332 (recognizing presentment required prior to adjournment); id., 3487, p. 333 note 3 (when bill is enrolled or signed by presiding officers too late to be presented to the President before adjournment signing and presentment must continue at next session as a resumption of [legislative] business). Clearly presentment is part of the constitutionally mandated Business, Art. I, 5, Cl. 1, to be exercised in accord with [the] single, finely wrought and exhaustively considered, procedure prescri[bed] in Art. I, 1, 7. INS v. Chadha, 462 U.S. at 951. The draftsmen of the Constitution took special pains to assure these
[legislative] requirements could not be circumvented. During the final debates on Art. I, 7, Cl. 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposal a resolution or vote rather than a bill. As a
consequence, Art. I, 7, Cl. 3, was added. INS v. Chadha, 462 U.S. at 947 (citing 2 Farrand, supra, 301-302, 304-305). Whether actions authorized under a resolution are an exercise of legislative powers depends not on their form but upon whether they contain matter which is properly to be regarded as legislative in its character and effect. INS v. Chadha, 462 U.S. at 952 (quoting S. Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897)). If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, 7. Metropolitan, 501 U.S. at 276. See also Bowsher v. Synar, 478 U.S. at 756 (Stevens, J., concurring) (It is settled, however, that if a resolution is intended to make policy that will bind the Nation, and thus is legislative in its character and effect, S. Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897) then the full Article I requirements must be observed. For the nature or substance of the
resolution, and not its form, controls the question of its disposition. Ibid.). Congress, of course, cannot grant to an officer under its control what it does not possess. Metropolitan, 501 U.S. at 275 (quoting Bowsher v. Synar, 478 U.S. at 726). Congress does not possess the capab[ility] of transacting business and is not entitled to exert legislative power, when its legislative existence has been terminate[d] by an adjournment. Pocket Veto Case, 279 U.S. at 681-683 (citations omitted). The limitation of the power of less than a quorum is absolute, House Doc. No. 355, supra, Hinds Precedents, Vol. V, Ch. CXL, 6686, p. 851 (App. 102), and
includes the signing of an enrolled bill by the Speaker of the House, id., Vol. IV, Ch. XCI, 3458, p. 322, and presentment to the President of the United States. id., Ch. XCII, 3486, 3487 & 3497, pp. 332, 333 note 3, 344 & 345 (App. 95-98). Wright v. United States, 302 U.S. 583, 600 (1938) (Stone, J., concurring) (The houses of Congress, being collective bodies, transacting their routine business by majority action are capable of acting only when in session and by formal action recorded in their respective journals, or by recognition, through such action, of an established practice.) Thus, Congress, as defined by the Constitution and Supreme Court, never presented any version of H.R. 3190 to the President of the United States. Whether the action taken under H.Con.Res. 219 was an exercise of legislative power depends upon whether it was essentially legislative in purpose and effect. INS v. Chadha, 462 U.S. at 952. In short, when Congress [takes] action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons outside the Legislative Branch, it must take that action by the procedures authorized in the Constitution. Metropolitan, 501 U.S. at 276, quoting INS v. Chadha, 462 U.S. at 952955. If Congress chooses to use a [] resolution as a means of expediting action, it may do so, if it acts by both houses and presents the resolution to the President, Consumer Energy Council of America v. F.E.R.C., 673 F.2d 425, 476 (D.C. Cir. 1982), affd mem. sub nom., Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216 (1983). The inescapable conclusion as to the purpose and effect of H.Con.Res. 219 was to enact a bill the text of which at the time of adjournment on June 20, 1948, had not been passed by both Houses, enrolled, certified as truly enrolled, or signed by the
officers of the Houses or presented to the President of the United States with quorums sitting. In other words, H.Con.Res. 219 unconstitutionally permitted post-adjournment legislative business to proceed without Congress and upon an unpassed bill. Congress did not follow the procedures mandated by Art. I, 7, Cl. 2 and attempted to supersede the quorum requirements of Art. I, 5, Cl. 1 via a concurrent resolution to carry forth legislative business with no legislature. The 80th Congress surreptitiously provided a bill, the text of which had never passed either House mask[ed] under [the] indirect measure, Metropolitan, supra, 501 U.S. at 277 (quoting Madison, The Federalist No. 48, p. 334 (J. Cooke 1961 ed.)), of a resolution purporting to authorize continuing legislative action during adjournment with no quorum and no Congress of an extracongressional bill. Public Law 80-772 did not become a Law as required by the constitutional procedures mandated under Article I, 5, Cl. 1, and Article I, 7, Cls. 2 and 3, and is unconstitutional and void ab initio. [W]hen action requiring a quorum was taken in the ascertained absence of a quorum the action [is] null and void, House Doc. No. 769, supra, Constitution of the United States, 55, p. [19] (citing Hinds Precedents, Vol. IV, 2964), and a bill not actually passed [although] signed by the President [is to be] disregarded [requiring] a new bill [to be] passed. House Doc. No. 769, 103, p. [34] (citing Hinds Precedents, Vol. IV, 3498) (App. 75). 11. The District Court Order Committing Petitioner To Executive Custody Pursuant To 3231 (Of The Unconstitutional Public Law 80-772) Was Issued Ultra Vires, Is Unconstitutional And Coram Non Judice, And his Imprisonment and Confinement Is Unlawful The challenge in this case goes to the subject-matter jurisdiction of the [district]
court and hence [its] power to issue the order, United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 77 (1988), committing Petitioner to imprisonment in Executive custody. Thus, the question is, whether [the district courts] action is judicial or extra-judicial, with or without the authority of law to render [the] judgment, Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 718 (1838), and to issue the commitment order. Subject-matter jurisdiction means the courts statutory or constitutional power to adjudicate the case, United States v. Cotton, 535 U.S. 625, 630 (2002), quoting Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 89 (1998); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) at 718 (Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them.); Reynolds v. Stockton, 140 U.S. 254, 268 (1891) (Jurisdiction may be defined to be the right to adjudicate concerning the subject matter in a given case.). Subject-matter limitations on federal jurisdiction serve institutional interests by keeping the federal courts within the bounds the Constitution and Congress have prescribed. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Without jurisdiction the court cannot proceed at all in any cause and when it ceases to exist, the only function of the court is that of announcing the fact and dismissing the cause. Steel Co. v. Citizens, 523 U.S. at 94, quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869); Willy v. Coastal Corp., 503 U.S. 131, 137 (1992) (lack of subject-matter jurisdiction precludes further adjudication). The Supreme Court has asserted over and over that [t]he requirement that jurisdiction be established as a threshold matter spring[s] from the nature and limits of the judicial power of the
United States and is inflexible and without exception. Steel Co., 523 U.S. at 94-95, quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884); See also Insurance Corp. of Ireland, Ltd., 456 U.S. at 702. Because subject-matter jurisdiction involves a courts power to hear a case, [and thus] can never be forfeited or waived correction [is mandatory] whether the error was raised in district court or not. United States v. Cotton, 535 U.S. at 630 (citation
omitted); Steel Co., 523 U.S. at 94-95 (citing cases). When a district court did not have subject-matter jurisdiction over the underlying action [its] process[es] [are] void and an order of [punishment] based [thereupon] must be reversed. United States Catholic Conf., 487 U.S. at 77; Willy v. Coastal Corp., 503 U.S. at 139 ([T]he [punishment] order itself should fall with a showing that the court was without authority to enter the decree.); Ex parte Fisk, 113 U.S. 713, 718 (1885) (When a court of the United States undertakes, by its process to punish a man [respecting] an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing is equally void.) Habeas corpus review is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged. INS v. St. Cyr, 533 U.S. 289, 311314 (2001); Bowen v. Johnston, 306 U.S. 19, 23 (1939). A court has jurisdiction to render a particular judgment only when the offense charged is within the class of offenses placed by the law under its jurisdiction. 306 U.S. at 24 (emphasis added). If it is found that the court lacked jurisdiction to try petitioner, the commitment and imprisonment is void, any judgment is void and the prisoner must be discharged. Ex parte Yarbrough, 110 U.S. 651, 654 (1884).
Petitioner has established that the text of H.R. 3190 signed by respective House officers and the President of the United States: (1) failed to pass the House of Representatives, and (2) that the legislative process continued after Congress adjourned by single officers of each House acting pursuant to H.Con.Res. 219 without quorums in either House, all of which violated Article I, Section 5, Clause 1; Article I, Section 7, Clause 2, and/or Article I, Section 7, Clause 3 and any of which rendered Public Law 80-772 unconstitutional and void ab initio. Marbury v. Madison, 5 U.S. 137, 180 (1803) (a law repugnant to the constitution is void; and courts, as well as other departments, are bound by that instrument). Therefore, because the offense[s] charged [were] placed by the law under [the] jurisdiction, of the district court below pursuant to 18 U.S.C. 3231 of Public Law 80-772, which is unconstitutional, and void, the court was without jurisdiction and the prisoner must be discharged. Yarbrough, 110 U.S. at 654. Since Public Law 80-772 has never been enacted as required by Article I, Section 5, Clause 1, and Article I, Section 7, Clauses 2 and 3 thereof, rendering void ab initio the jurisdiction by which the district court acted to charge and to imprison Petitioner, to enter any judgment, and order Petitioner imprisoned in Executive custody, the district courts actions were ultra vires, Ruhrgas AG, 526 U.S. at 583 (quoting Steel Co., 523 U.S. at 101-102), and coram non judice. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) at 720. The charge and imprisonment and any judgment thereupon being without
jurisdiction, is void, and the order punishing is equally void. Ex parte Fisk, 113 U.S. at 718; United States Cath. Conf., 487 U.S. at 77; Willy v. Coastal Corp., 503 U.S. at 139. This is precisely the office and function of habeas corpus i.e., to examin[e]
the jurisdiction of the court whose judgment of conviction is challenged, Bowen v. Johnston, 306 U.S. at 23, and where, as here, the court was clearly without jurisdiction the prisoner must be discharged. Ex parte Yarbrough, 110 U.S. at 654. See also Ex parte Lange, 85 U.S. (18 Wall.) 163, 166 (1874).
That section was necessary to establish jurisdiction, because the Senate declared it necessary: As the Senate stated in Senate Report No. 1620, Calendar No. 1675, Revision of Title 18, United States Code, June 14, 1948, Mr. Wiley, from the Committee of the Judiciary Submitted the following Report to accompany H.R. 3190: . This report is necessary to preserve the provisions of section 371(1) of title 28 United States Code, 1940 edition, giving the district court of the United States original jurisdiction of all offenses against the laws of the United States, exclusive of the State courts. App. Pg. 104. In fact, there was no quorum in Congress when the bill was passed by the House: The speaker. The question is on the amendment offered by the gentleman from Pennsylvania (Mr. Walter). The question was taken; and the Speaker being in doubt, the House divided, and there were-ayes 38, noes 6. So the amendment was agreed to. The bill was ordered to be engrossed and read a third time, was read the third time, and passed, and a motion to reconsider was laid on the table. May 12, 1947, Congressional Record, House. App. Pg. 46. Petitioner requests the court to take judicial notice that no quorum was present for the passage of Public Law 80-772 in the House of Representatives on May 12, 1947. In fact, the House did not pass Title 18 in May of 1947 as no quorum was present. See Appendix 1, judicially noticed on the record.
VII. ISSUE THREE: THE ACTIONS OF THE LOWER COURT JUDGE VIOLATE 28 USC 455 Federal Courts are courts of limited jurisdiction, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and a ruling that Public Law 80-772 is unconstitutional will arguably render every federal district court judge civilly liable for every exercise of jurisdiction pursuant to 18 U.S.C. 3231. See Stump v. Sparkman, 435 U.S. 349, 358-359 (1978). Judges of courts of limited jurisdiction have been held civilly liable upon void jurisdiction. Even Circuit Court and Supreme Court Justices arguably have the same potential conflict, but for the reasons stated below Supreme Court justices must be excepted from the prohibitions of 28 U.S.C. 455 and Due Process of Law.
[T]he sensitivity of the issues requires address[ing] the applicability of [28 U.S.C.] 455 with the same degree of care and attention employ[ed] [upon an] assert[ion] that the District Court[s] lacked jurisdiction or that 455 mandates disqualification of all [district] judges without exception. United States v. Will, 449 U.S. 200, 217 (1980) (brackets supplying immediate circumstances). The purpose of 455 is to guarantee litigants a fair forum, Id., to promote public confidence in the integrity of the judicial process, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988) (citing S. Rep. No. 93-417, p. 5 (1973); H.R. Rep. No. 93-1453, p. 5 (1973)), and to provide positive disqualification by reason of the appearance of possible bias. Will, 449 U.S. at 216; Liteky v. United States, 510 U.S. 540, 553 n. 2 (1994) (same); Liljeberg, 486 U.S. at 859-860 & n. 8 (same). [A]rgu[ably] a [district] judge will feel the motivation to vindicate a prior conclusion, Liteky, 510 U.S. at 562, thereby creating an appearance of impropriety due to partiality. The integrity of a fellow member, 486 U.S. at 865-866 n. 12, of a district court hearing these claims is unlikely to quell the concerns of the public, id., and such suspicions and doubts shadow these proceedings. Liljeberg, 486 U.S. 865-866 & n. 12. People are too often all too willing to indulge suspicions and doubts concerning the integrity of judges. Id. Due process of law demarks the outer boundaries of judicial disqualifications, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986), requiring fairness in fact and the appearance of justice. In re Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). This Court is not required to decide whether in fact all district judges suffer such conflict, but only whether sitting on the case
would offer a possible temptation to the average [district] judge to lead him not to hold the balance nice, clear and true. Aetna, 475 U.S. at 825 (citations omitted). To permit district court judges to hear this petition would be a plain violation of the statute [ 455], Liljeberg, 486 U.S. at 861, and could never satisfy the appearance of justice. Murchison, 349 at 146. At a minimum, it would raise constitutional questions which should be avoided. See, e.g., Richardson v. United States, 526 U.S. 813, 830 (1999); Gomez v. United States, 490 U.S. 858, 864 (1989). Although it is clear that the District Judge[s] and all Justices of this Court have a[] [probable] interest in the outcome in [this] case[], there is no doubt whatever as to this Courts jurisdiction or that of the District Courts under 28 U.S.C. [2241 (a)]. Will, 449 U.S. at 210-211 (bracketing jurisdictional statute in this case). Unlike the parties in Will, the district court should disqualified itself to hear this petition.. Id. Will held the Rule of Necessity required the District Judge and the Justices to hear the case regardless of interests as no substitute district judge was available. 449 U.S. at 212. The Justices of the Supreme Court are furthest from the operation of Section 3231 and have no peer pressures. Thus, [t]he biasing influence [is] too remote and insubstantial to violate constitutional constraints. Aetna, 475 U.S. at 826 (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 243 (1980)). Cf. Tumey v. Ohio, 273 U.S. 510, 531 (1927) (citing Cooley, Const. Limitations 594 (7th ed. 1903)) (qualifying remoteness of interest). The Supreme Court Justices can not realistically be held liable by private parties, if, for no other reason, because the Supreme Court is essential to the tripartite Government established by Article III of the Constitution, whereas, district courts and appellate courts are created at Congress discretion. Whether district judges and
appellate judges will ultimately be held liable must await its own day in court. It suffices that they could be. See, e.g., Bradley v. Fisher, 80 U.S. 335 (1872). To insure exhaustion, Petitioner first presents the petition to the District Court. If the District Court hears the petition and does not forward it to the Supreme Court for hearing, it will have violated 28 USC 455. The refusal of the District Court to make findings of fact and law and to rule on the claims presented would be violations of FR Civ P 52(a) and 54(b) and Due Process. Vague and conclusory rulings are also violations of Due Process. The failure to hold a hearing, Reynolds v. Cochran, 365 U.S. 525, 528, 533 (1961) on the verified claims is likewise a violation of Due Process. Arguably, the
District Court has already violated 28 USC section 455, et al, by acting pursuant to a right lacking jurisiction. The Rule of Necessity requires some court hear these constitutional challenges. Will, supra. Another aspect of that Rule requires in a case of choice selection of the lesser of two evils. United States v. Bailey, 444 U.S. 394, 410 (1980) (construing Rule in the context of a prison escape). Under these exceptional circumstances, the Court should proceed promptly to hear this petition acting as an independent and unbiased court and to resolve with speed and finality the significant questions herein, or if it can not act without potential conflict, refer the case for hearing to the Supreme Court. The actions without jurisdiction, when the court is presumed to know the law, constitutes structural error. In conducting harmless error analysis of constitutional violations in direct appeal and habeas corpus cases, the Court repeatedly has reaffirmed that [s]ome constitutional violations .by their very nature cast so much doubt on the fairness of the trial process
that, as a matter of law, they can never be considered harmless. Satterwhite v. Texas, 486 U.S. 249, 256 (1988); accord Neder v. United States, 527 U.S. 1, 7 (1999) ([W]e have recognized a limited class of fundamental constitutional errors that defy analysis by harmless error standardsErrors of this type are so intrinsically harmful as to require automatic reversal (i.e., affect substantial rights) without regard to their effect on the outcome.); Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (Although most constitutional errors have been held to harmless-error analysis, some will always invalidate the conviction. (citations omitted)); id at 283 (Rehnquist, C.J., concurring); United States v. Olano, 507 U.S. 725, 735 (1993); Rose v. Clark, 478 U.S. 570, 577-78 (1986) (some constitutional errors require reversal without regard to the evidence in the particular case[because they] render a trial fundamentally unfair); Vasquez v. Hillary, 474 U.S. 254, 263-264 (1986); Chapman v. California, 386 U.S. 18, 23 (1967) (there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error). Included in the definition of structural errors, is the right to an impartial judge, i.e., the right to a judge who follows the Constitution and Supreme Court precedent and upholds the oath of office. See, e.g., Neder v. United States, supra, 527 U.S. at 8 (biased trial judge is structural [error], and thus [is] subject to automatic reversal); Edwards v. Balisok, 520 U.S. 641, 647 (1997) (A criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him.); Johnson v. United States, 520 U.S. 461,469 (1997); Sullivan v. Louisiana, 508 U.S. at 279; Rose v. Clark, 478 U.S. 570, 577-78 (1986); Tunney v. Ohio, 273 U.S. 510, 523 (1927).
The actions of the district court create a prima facie basis for bias and structural error, requiring automatic reversal of the case.
VIII. ISSUE FOUR: THE JUDGE TRYING THIS CASE IS NOT AN ARTICLE III JUDGE AND THEREFORE CAN NOT SENTENCE Petitioner has a right to be tried and, if found guilty, sentenced by an Article III judge. 1. The Judicial Officers Violated the Judicial Code The magistrate and judge violated the Code of Conduct for United States Judges, Canon 1, Canon 2, and Canon 3 by acting outside of their authority and in excess of their jurisdiction. The magistrate and judge of this case indicted and confined Petitioner when as a matter of law he committed no crime, and the court had no jurisdiction. Furthermore, the judge of this case is believed to be a former prosecutor and is now an employee of the Department of Justice, a direct conflict of interest to the courts impartiality and Canons 1, 2, and 3 of the Judicial Code. Any reports or orders by the Magistrate Judge act as nothing more than a disguised order of the judge, since the judge adopted the magistrates recommendations without question or comment, failing to make findings of fact and law on all issues presented. Are the judge and magistrate bound by the judicial code or code for judicial employees? Neither a district court judge nor a magistrate can create law, but may interpret law. No such authority was ever conceived by the Framers to allow judges to create law. If the magistrate and judge of the court are bound by the judicial code and code for judicial employees then they must comply with that (those) codes, which means
they must dismiss the information and conviction. First, the judge has taken a Form 61 Commissioners Oath of Office. Second, the courts were transferred into the Department of Justice by Executive Order during the bankruptcy of the United States in the 1930s and act as administrative courts, in violation of the Separation of Powers Doctrine. Third, to be a Constitutional judge, the judge must meet 3 criteria: First, he must be appointed by the President; Second, he/she must be in good behavior; Third, his/her pay can never be diminished. The judge may meet the first criteria, but can never meet the second and third criteria (the second criteria can not be met when the judge violates Petitioners Constitutional rights; the third criteria violation is supported by Supreme Court precedent) and therefore, this judge could not preside over the proceedings and could not enter sentencing. With no Article III judge on the case, sentencing was illegal and requires immediate reversal. X. ISSUE FIVE: THE SALE OF CONVICTION BONDS RENDERS THE PROCEEDINGS VOID
The sale of bonds based on Petitioners conviction by the court creates a financial conflict of interest and is a violation of the Separation of Powers Doctrine, rendering the conviction void. The district court is a corporation listed in Dun & Bradstreet. It sells bonds based on Petitioners conviction. To find the bonds cusip number you go to
http://adtivequote.fidelity.com/mmnet/Symblookup.phtml/Symlookup.phtml Search for: Mutual Fund by: Fund Number
CUSIP Number:
http://fixedincome.fidelity.com/fi/FIFrameset.do?page=FISearchIndividualBonds.d o enter case number as follows: For example, if your listed case number If your listed case number is 1:05-cr-30039-AA and 1:05-cr-30039-AA-1. Put in 30039-AA and 30039-AA-1 and the CUSIP number was the same for this case.
The fact that the court makes money from convictions is a violation of numerous Constitutional provisions, including slavery and peonage as well as the Separation of Powers Doctrine. 18 USC Sec. 514 FICTITIOUS OBLIGATION prohibited See Appendices 6 STATEMENT OF FACTS
Petitioner was charged and convicted of alleged Bank Fraud other bogus federal crime because we have no real banks and no real party of interest with any witnesses. Also THE GOVERNMENT OR US INC. never had 1st handknowlege of anything. This was a trick or scheme, improper jurisdiction, Illegal search and seizure, false Imprisonment and involuntary servitude. The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof. Because Petitioner is actually innocent of the alleged crimes, the Petitioner has exhausted all remedies necessary to file a habeas petition as a matter of law.
Petitioner requests discovery related to the courts and AUSA WDNY conflict of interest. See case 09-cv-1129, 08-cr-054,09-cr-00121 and 09-cr-00141 BUCZEK V. ANTHONY BRUCE d/b/a The Petitioners and others have made many visits sent letters
to the Judiciary Committee to address the corruption of The Buffalo City Courts in Upstate New York and of our Administrative and Legislative branches of the government in Erie County. AND THEY ARE A MESS. See Appendices11 DOUBLE JEOPARDY 08-CR-054 and Docket No.05f-18516 and Appeal No. 2007-APP-082
Buffalo city Court case another false arrest Docket No.05f-18516 and Appeal No. 2007-APP-082 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The Petitioners have placed Court records of Due Process violation and judicial Misconduct before Congress. As one of the people have brought claims into the Courts to have our cases dismissed under 12(b) (1), 12(b) (2) and the 11th amendment. If the courts have no Judicial power in the United States in any suit in Law or Equity, then the question arises, under what authority are the People being charged, if its not in Law or Equity? This brings us back to the matter of the Gold Fringe Flag and Title 50, State of Emergency and ENEMY OF THE STATE.
The petitioners now place this complaint of misconduct before this Administrative Hearing Panel to hear the as one of the American people complaint. Even under Military
Law, the Court is required to uphold the rights of its own personnel and give them a fair hearing. How are The People an Enemy of their own Country, but on the first Tuesday of November, We the American People are supposedly free to elect these same people into office under the Constitution who then make us Enemy of the State the other 363 days of the year? These questions need to be answered. The Petitioners have brought to your attention conflicts in Law, Ethics, and Administrative Conflicts in behavior as well as policy conflicts. The duty of the Administrative Hearing Court is to resolve such matters and correct the conflict within the administration. This was the intent of the 1946 Administrative Procedures Act under 60 stat 237 S.7. The Petition also has this Congressional document which shows its intent. The Petitioners request you to give your intent regarding this case. This Administrative Hearing has as much to lose as the American People. This hearing is of National importance to all Americans, as well as to the National defense of this Country. If those who are in our legislatures are controlled by outside influence, then this is the time and place to bring it out into the public. Where is the Republic? Our Military has been misused as a means of killing off or disabling able-body Americans who could instead defend this country in this type of takeover, and then the veterans are being denied their benefits when they come home. The Military health care and retirement comes out of the same funds as that of the American People. Those who are elected into public office and who then hire their own staff or have been forced to take lawyer staff members come under a different plan for health care and retirement plans. This comes out of slush fund created by those placed in public offices.
The Petitioners now have placed their second document of administrative violations before this Hearing Panel. The Petitioners request in writing what action this Administration intends to take in this case. The Petitioners will place into the record Eric Holders reply to this matter. (See Attachment: Department of Justice) SF-95 FORM TORT CLAIM
CONCLUSION For these reasons, Petitioner Requests that a Writ of Habeas Corpus be issued, Petitioners information and conviction be reversed, these proceedings be declared void, specific findings of fact and law be issued, Title 18 be declared unconstitutional, the District Courts actions pursuant to Petitioner be declared ultra vires, the District Courts actions be declared in violation of Due Process and 28 USC 455, and the conviction be declared void. 09-cr-00121 The issues related to Title 18 herein has never been decided by a court of precedent based on findings of fact and law, are jurisdictional, and carry no procedural default. That issue requires the government to prove on the record its jurisdiction. It can not. Failure to follow the Supreme Court mandate to require the government to prove on the record its jurisdiction, would amount to proof of judicial bias and structural error. Petitioner declares under penalties of perjury that the facts stated or alleged herein are true and correct pursuant to 28 U.S.C. 1746. An affidavit renders the facts presented as true unless it is rebutted by affidavit and fact. The court is presumed to know the law and can pull the cases.
PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant submits this WRIT by Affidavit and respectfully prays this Honorable Court to: A. Issue a writ of habeas corpus declaring Petitioners constraints illegal and the court without jurisdiction and in violation of Due Process; B. Declare Public Law 80-772 unconstitutional; C. Declare Petitioner actually innocent of any alleged crimes charged; D. Grant such further relief as this Court deems just and proper.
ALL RIGHTS RESERVED TO AMEND WITHOUT LEAVE OF COURT
CERTIFICATION UNDER PENALTY OF PERJURY I certify that the facts stated herein are true and correct under the penalty of perjury as provided by 28 USC section 1746, that I am over the age of 18, and that I have personal knowledge of the facts stated herein. __________________________
In Trust,
_____________________________ shane-christopher : buczeck, as third party intervener and Grantor / Beneficiary for: SHANE C. BUCZEK a US TRUST All rights reserved Without prejudice Without recourse Shane-Christopher
UCC 1-308
Appendices 1 HARLEY G. LAPPIN DIRECTOR,FEDERAL BUREAU OF PRISONS Appendices 2 Transcripts January 16,2009 9:54 AM Judge Shroeder,Jr. and March 14,2008 Appendices 3 WWW.NATIONALREPUBLICREGISTRY.COM RECORDINGS with DOS & DOJ Real Party Rule 17 Appendices 4NATIONAL ARCHIVES RECORDS Constitution Certify from Library Appendices 5 Judge William M. Skretny Chief Judge U.S.D.C. ORDERS Appendices 6 GSA STANDARD FORM 24BID BOND, GSA SF-25 PERFORMANCE BOND, SF 25( a)PAYMENT BOND, SF 273,274,AND 275
Appendices 7 Transcripts from May 6, 7, and 15, 2009 Judge Schroeder showing no Criminal Intent many, many, many times Appendices 8 State of mind on All Federal Indictments by Dan Meador Appendices 9 VOILATION OF DUE PROCESS CASE 09-CR-121 William-Edwin:Diehl on Pre Paid Tresury Account Pursuant to PUBLIC POLICY AND HJR 192 June 5th, 1933 and Transcripts With Judge Skretny March3,2010 Vol.II page 1 and 97 Showing willfulness, good faith and belief system Appendices 10 Attorney Daniel B. Evans from Philadelphia phone 215.233.0988 email dan@evans-legal.com
Appendices 11 BUFFALO NEWS ARTICLE January 29,2006 U.S. District Judge Richard Arcara refused the Liberty Dollar case from Buffalo City Court and Shane ambassador for Christ which shows case 08-cr-054 is Double Jeopardy Appendices 12FALSE ARREST CASE FROM BUFFALO CITY COURT Pre trial and Trial transcripts showing Double Jeopardy Done By ED COTTER BUFFALO POLICE DEPARTMENT and Case file: Docket 2005ER 18515F Appendices 13 TAKE NO PRISONERS Host(s): Dr. Sam Kennedy One full Hour April4th,2010 on Promissory Notes and DTCC 55 Water Street, New York, New York and the banks Steal the money out of are Pre Paid U.S Treasury Account Show Time: Sundays, 7:00 PM 9:00 PM CST http://republicbroadcasting.org/ Dr. Sam Kennedy, author of the Instant Criminal Complaint, is known around the world for his creative court-stopping solutions to personal tragedy. Having taught thousands of men and women to settle their cases honorably, pay the bill, and use proof of claim, Sam reveals the intricacies of cutting-edge law merchant remedies in Take No Prisoners every Sunday night at 8 PM CST. Whether you are warehoused as a political prisoner or on the fast track to a debtors nightmare, or simply want to know more about converting liability to 3rd party defendants using the Beneficiaries-in-Common payment method, Sam may have the tonic for what is ailing you. A
semi-retired doctor who treats pain disorders, Sam served as a journalist and professional writer for many years. Especially if you are in the battle of your life, tune in Take No Prisoners every Sunday night.
CERTIFICATE OF SERVICE On this the _______________ day of _____________, 2010, a true and correct copy of this
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO THE ORIGINAL HABEAS CORPUS AS PRESENTED IN THE CONSTITUTION AND/OR 28 USC 2241 AND/OR 28 USC 2255 AND CHALLENGE TO JURISDICTION AND REQUEST TO DISMISS OF ALL INDICTMENTS AND CONVICTION WITHIN THE NEXT 3 DAYS, AS THIS IS AN EXTRAORDINARY WRIT, OR ALTERNATIVELY, TO SHOW CAUSE WHY PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 USC 2241 AND CHALLENGE TO JURISDICTION AND REQUEST TO STAY SENTENCING PENDING JURISDICTIONAL REVIEW was served on the US attorney threw the
Clerks Office in the WDNY Buffalo, New York for the opposition in this case.
Shane-Christopher UCC 1-308 All Rights Reserved

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Buczek Habeas Corpus Petition 54 121 141

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK BUFFALO DIVISION SHANE CHRISTOPHER BUCZEK

this brief is copyrighted 2010

C.A.No. _________________ Ref 1:08-cr-0054 Ref 1:09-cr-00121 Ref 1:09-cr-00141

PRAYER FOR RELIEF

REASONS THE GOVERNMENT CAN NOT WIN THIS

that the 2nd

IMPROPER VENUE F.R.Civ.P. 12(b) (3) Rule 17 a See Appendices 3

JURISDICTION OF THIS COURT TO ISSUE ORDER

JURISDICTION OF THIS COURT TO HEAR THIS WRIT

http://adtivequote.fidelity.com/mmnet/Symblookup.phtml/Symlookup.phtml Search for: Mutual Fund by: Fund Number

ALL RIGHTS RESERVED TO AMEND WITHOUT LEAVE OF COURT

Shane-Christopher UCC 1-308 All Rights Reserved

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