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Buczek v. Constructive Statutory Trust

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


October 6, 2010

SHANE BUCZEK, SHANE-CHRISTOPHER: BUCZEK, THIRD PARTY INTERVENOR AS GRANTOR, BENEFICIARY OF SAID CESTUI QUI TRUST, PETITIONER,
v.
CONSTRUCTIVE STATUTORY TRUST, UNITED STATES MARSHALS, UNITED STATES PROBATION, AND UNITED STATES OF AMERICA, RESPONDENTS.

The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION and ORDER

Petitioner, Shane Buczek, who is currently awaiting sentencing in this Court after a jury found him guilty of Bank Fraud (18 U.S.C. § 1344) and Commission of an Offense While on Release (18 U.S.C. § 3147), United States v. Buczek, 09-CR-0121S, has filed a Petition and Amended Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, challenging, inter alia, this Court's jurisdiction over the underlying criminal proceedings and the conditions of his release.*fn1 Petitioner has also filed a Motion for Judgment on the Pleadings (Docket No. 3), a Motion to Take Judicial Notice of the Determination by the DOJ that Title 18 (1948) is Unconstitutional and of the Fair Warning Doctrine (Docket No. 4), and Motion/Petition for a determination of a Question of Jurisdiction (Docket No. 5).

IT HEREBY IS ORDERED as follows:

1. Respondents shall file an answer and memorandum of law with the Clerk of Court (and also serve a copy of each upon petitioner) no later than November 15, 2010. The answer shall respond to the allegations of the application and shall indicate whether petitioner has used any other available state or federal remedies including any administrative appeals, direct judicial appeals or prior post-conviction motions. Further, the answer shall indicate whether any evidentiary hearing was afforded petitioner in a state or federal court on either direct or collateral challenge to petitioner's custody. The memorandum of law shall address each of the issues raised in the petition and include citations of relevant supporting authority.

Petitioner shall have twenty (20) days upon receipt of the answer to file a written response to the answer and memorandum of law.

Within twenty (20) days of the date this order is filed with the Clerk of Court, respondent may file a motion for a more definite statement or a motion to dismiss the application, accompanied by appropriate exhibits which demonstrate that an answer to the application is unnecessary. The timely filing of such motion shall extend the time for filing an answer for fourteen (14) days, but the failure of the Court to act upon the motion within that time shall not further extend the time for filing an answer.

2. The Clerk of Court shall serve a copy of the petition and amended petition, together with a copy of this order, by certified mail, upon respondents and upon United States Attorney, Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202.

PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENT.

SO ORDERED.

Buffalo, New York


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