Petitioner, Shane Christopher Buczek respectfully moves this Honorable Court to grant a Writ of

Certiorari because the decision of the United States Court of Appeals was in error in denying

Petitioner’s Writ of Mandamus "Extraordinary Writ" (Mandamus) directing the District Court

for the Western District of New York (Buffalo Division) (Judge William H. Skretny) to dismiss

the case of United States of America v. Shane Christopher Buczek, 2nd Circuit Appellate

docket #12-5017 and 1:09-cr-OOI21.001 (WDNY), 457 F. App’x 22, 25 (2d Cir. 2012) asserting

the District Court was without subject matter jurisdiction to hear, consider or adjudicate the

matter and rectifying the manifest injustice that occurred in his case.

On 12//20/2012, a petition for Writ of Mandamus or prohibition filed with the United States

Court of Appeals for the Second Circuit was denied by that Court on 2/14/2013. Appendix,

A. A motion for rehearing of the denial of mandamus or prohibition was denied on 4/4/2013.

Appendix B . Request for en Banc hearing denied on May 1, 2013. Appendix C

Statement of the Case:

The instant petition results from Petitioner's conviction on one count of bank fraud, in violation

of 18 U.S.C. § 1344 without FDIC certificate entered into evidence during trial, an element of

the offence charged, (Count One of docket: 1:09...CROOI21.001) WDNY, and one

count of committing an offense while on pretrial release, in violation of l8 U.S.C. § 3147 (1)

(Count Two 1:09CR00121.00l).

Count Two was predicated on a separate violation of 18 U.S.C. §§ 1028(a) (4), possession of a

false identification document, on which Petitioner had been previously indicted and later pled

guilty in the absence of counsel. On November 5, 2010, the district court sentenced Petitioner to

a term of imprisonment of 27 months on Court One (Bank fraud in violation of 18 U.S.C. §§

1344) and six months on Count Two (committing an offense while on pretrial release in violation

1

of 18 U.S.C. §§ 3147) to run consecutive to the bank fraud conviction. The Second Circuit Court

of Appeals affirmed the conviction and judgment in 1:09-CROO 121.001 in the WDNY on

January 18, 2012 in violation of the fifth and sixth amendments of the United States

Constitution.

Standard of Review:

It is well established that the remedy of Mandamus is a drastic one, to be invoked only in

extraordinary situations. Kerr v. U.S. District Court, 426 U.S. 394,402, 96 S. Ct. 2119, 48 L.

Ed 2d (1976). Mere error, even gross errors in a particular case, does not suffice to support

issuance of the writ. United States v. Distefano, 464 F.2d 845,850 (2d Cir.l972). Mandamus is

an extraordinary writ used to “confine” an inferior court to the lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authority when it is its duty to do so. Roche v.

Evaporated Milk Assn ., 319 U.S. 21, 26, 87 L.Ed 1185, 63 S. Ct. 938 (1943). In order to

succeed on his petition, the Petitioner must show clear and indisputable right to the issuance of

the writ, amounting to clear abuse of discretion or a usurpation of judicial form. In re:

Steinhardt Partners, 9 F.3d 230, 233 (2d Cir.1993). This particular case falls within the

category of drastic remedies that can rectify an extraordinary situation.

Jurisdiction:

Jurisdiction of this Court is invoked under Title 28, United States Code, Sections 1251(1),

1651(a), and 1254 (1) predicated upon issues affecting the Fifth and Sixth Amendments to the

Constitution, and Supreme Court Rules 20.1, 10, and 13. Rule 20 deals with procedure on a

Petition of Extraordinary writ and this Court has jurisdiction of appeals from all final decisions

of the Second Circuit Court of Appeals which is over the District Court for the Western District

of New York.

2

In Petitioner's case, he has exhausted all his direct appeal rights with regards to the issue he now

presents to this Court and no other Court can grant relief sought by this petition. That a manifest

injustice is apparent that goes to the heart of the subject matter jurisdiction in Petitioner’s case,

and a writ is the only "adequate means" to have jurisdiction assessed and thereby prevent

irreparable harm that the Petitioner and the public would suffer. See Cheney v. U.S. District

Court for District of Columbia, 542 U.S. 367, 380 (2004), 124 S. Ct. 2576, 159 L. Ed 2d 459,

and… “where deserving extraordinary measures seeking relief, especially if the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United

States, 520 U.S. 461, 466-467.

Petitioners Rights:

The Fifth Amendment to the U.S. Constitution guarantees that "no person shall be held to answer

for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand

Jury." And not to be indicted by a valid Grand Jury is a staggering Constitutional violation

of the highest order, going to the heart of our judicial jurisprudence. Ex Parte Bain, 121 U.S. 1,

Stirone v. United States, 361 U.S. 212, and Russell v. United States, 369 U.S. 749, 761

(1962). U.S. Supreme Court has shown that it takes seriously and requires to be enforced

vigorously, the Fifth Amendment's command that a defendant to be charged of "infamous crime"

be tried on an "indictment of a Grand Jury." That when, "a legally constituted grand jury be the

neutral buffer between the government and the accused - is absent, the accuser's Fifth and Sixth

Amendment rights may be easily eviscerated." See United States v. Ferguson, 758 F.Ld 843

(2d Cir.1984), citing Russell v. United States, 369 U.S. 749, 761, 8L.Ed 2d 240, 80 S.Ct. 1038

(1962).

3

REASONS FOR GRANTING THE WRIT

ARGUMENT

THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ERRED IN DENYING PETITIONER’S WRIT OF MANDAMUS WHEREIN PETITIONER WAS NOT INDICTED BY A VALID GRAND JURY, PROSECUTED UNDER AN EXPIRED GRAND JURY LEAVING THE DISTRICT COURT AND GOVERNMENT WITHOUT SUBJECT MATTER JUSRISDICTION IN PROSECUTING HIS CASE.ADDITIONALLY, PETITIONER WAS PROSECUTED UNDER TITLE 18, SECTION 1344, 3147 AND 1028 WHICH WERE VOID FOR LACK OF SUPPORTING FEDERAL CODE OF REGULATONS TO SUPPORT SUCH CHARGING STATUTE. THE OFFENCE MUST HAVE BOTH THE STATUTE AND THE SUPPORTING (CFR’S) TO HAVE ANY FORCE OR EFFECT, THUSLY DISTRICT COURT AND GOVERNMENT WAS WITHOUT SUBJECT MATTER JURSIDICTION IN HIS CASE.

The instant case presents three issues on which this Court is requested to grant Certiorari:

First, to resolve a split among the various circuits courts on the Constitutionality of an alleged

Grand Jury that was expired way beyond its impaneling date wherein said record and docket is

void of any request, order or extension granted by the Chief Judge. Some Circuit courts wink at

this Fifth Amendment Constitutional requirement while others say it must be adhered to strictly.

Second, the abuse and unconstitutional actions of having the United States Attorney using a draft

indictment, uploading it into the portal of the court docket without ever getting a valid True Bill

signed by the foreperson and then using electronic signatures to ‘feign’ the impression that it was

done, when in fact the AUSA was the indictor of said Petitioner.

Third, Petitioner challenges whether the District Court and government have subject matter

jurisdiction over Petitioner where clear stated Supreme Court cases and others mandate that the

statute must be supported by the Code of Regulations and thereby both together (statute and

CFR), do they then have force and effect of law. Petitioner was allegedly indicted by Title 18,

Sections 1344, 3147(1), and 1028(a) (4), but the Acts placement specifically, Title 18, H.R.

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3190, 3231, 1344, 3147(1) et al into the Federal Registry within 30 days of its alleged passing

does not exist and there are no supporting Code of Federal Regulations undergirding the statute

as required by law. The Court should grant Certiorari on this issue to bring a singular uniformity

among the various Circuit Courts.

5

POINT I

CERTIORARI SHOULD BE GRANTED BECAUSE SECOND CIRCUIT COURT OF APPEALS ERRED IN DENYING PETITIONER WRIT OF MANDAMUS IN THAT PETITIONER’S ALLEGED GRAND JURY INDICTMENT CAME 5 MONTHS AFTER THE EXPERATION OF SAID EMPANELLING, PETITIONER WAS NEVER INDICTED BY A VALID GRAND JURY THUSLY CAUSING THE DISTRICT COURT TO BE WITHOUT SUBJECT MATTER JURISDICTION IN HIS CASE. THE CIRCUIT COURTS ARE SPLIT IN DETERMINING THIS MATTER AND UNIFORMITY IS NEEDED TO BRING HARMONY INTO ALL THE CIRCUIT COURTS

Petitioner contends that he was not indicted by a valid Grand Jury. In Petitioner’s instant case, he

was allegedly indicted by an expired grand jury and an argument can be made that there was no

empaneled Grand Jury during the alleged time of his indictment. This goes to the heart of the

subject matter jurisdiction of the Court and government in Petitioner’s case in which he is

challenging. Petitioner’s alleged empanelling, May 4, 2007, alleged indictment April 21, 2009.

“[S]ubject-matter jurisdiction, because it involves the court's power to hear a case, can never be

forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). Courts “have an

independent obligation to determine whether subject-matter jurisdiction exists, even in the

absence of a challenge from any party.” Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006)

(citing Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583 (1999)). “Where jurisdiction is

lacking, . . . dismissal is mandatory.” United Food & Commercial Workers Union, Local 919,

AFL-CIO v. CenterMark Props. Meriden Square, Inc. , 30 F.3d 298, 301 (2d Cir. 1994).

It is settled law that Article III Courts, have limited jurisdiction to hear cases and controversies.

U.S. Const. Art. III, §§ 2, CI. 1; Allen v. Wright, 468 U.S. 737, 750 (1984). With a few

exceptions, exercises of judicial power by Article III courts derive from this constitutional grant.

[And], actions taken in excess of those powers are null and void because actions taken without

6

such jurisdiction are a usurpation of judicial forms and facilities. United States v. United Mine

Workers, 330 U.S. 258, 309, 91 L .Ed 884, 67 S. Ct. 677 (1947)

Term of Grand Juries:

However, Grand Juries much the same as Art. III Courts are subject to certain limitations.

Fed.R.Crim.P.6 (g), for example, provides that "no Grand Jury may serve more than 18 months."

Notably, this prescription of limitation on the term of a grand jury was amended in 1983 when

Congress promulgated rules allowing for an extension of the term of a grand jury for 6 additional

months under 18 §§ 1331 or under Rule 6(g), up to a total of 36 months for "Special Grand

Juries. That such extension of the term of 18 months of a Rule 6 Grand Jury was at the order or

behest of the District Court to complete cases or controversies under investigation. See United

States v. Barton, 791 F.2d. 265 (2d Cir. 1986). However an "unauthorized extension" of the

term of the grand jury beyond 18 months is a defect which (Would) go to the very existence of

the grand jury itself·.. ". See United States v. Macklin, 523 F.2d 193 (2d Cir.1975).

Petitioner's Case: (Argument, Points and Authorities).

It will be easily seen and shown below that under Rule 6 (c) (f) and (g) that Petitioner’s grand

jury had expired. Appendix D. Then additionally, this deprived the District Court of the required

subject matter jurisdiction to hear, consider and adjudicate Petitioner’s case.

First, and most importantly that this Court (with all due respect) be mindful of the Petitioner's

pro se status and thus construe his papers liberally to raise the strongest argument they suggest.

Petitioner, “regardless if deemed in-artfully plead, must be held to a less stringent standard than

formal pleadings drafted by bar-admitted attorneys” in the nature of Haines v. Kerner, 404 U.S.

519-521, (1972) and “We liberally construe pleadings and briefs submitted by pro se litigants,

see Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000), reading such submissions "to raise the

7

strongest arguments they suggest," Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994);

Bertin v. United States, 478 F3d 489, 491 (2d Cir. 2007).

Petitioner’s case 1:09CR121-001 reveals that the term of the grand jury alleged to have returned

an indictment against him had in fact expired. Rules in (WDNY) state Chief Judge must extend

term. Appdx. K. That the record in the District Court is completely silent with regard to any

judges' order extending its term. [Appendix E. Dkt. #1] Petitioner’s docket summary does not

show or demonstrate on the record that any alleged indictment was returned by any particular

judge in open court, pursuant to 18 U.S.C. §§1746. The entire record is void of this event.

Second, the Petitioner further asserts that after diligent investigation of his charge in the

underlying, that he made diligent inquiry to the head of the Clerk of the Court (Jean Marie

McCarthy) for the Western District of New York and the clerk in charge of scheduling

extensions for the grand juries Charlene Shumaker, both conceded that there was no notation

placed into the record anywhere of any such extension. (Appendix F Petitioner’s affidavit) “The

clerks further stated that at the time during Petitioner’s indictment, there was only one grand jury

in existence, not two,” and the one that was in existence was not his. Thusly, the Court clerks

could not show any definitive confirmation that an order was in the record with the Court

extending the 18 month term of the Rule 6 Grand Jury. As shown on the face of Petitioner’s

indictment, the grand jury was empanelled on May 4, 2007 and some twenty-four months later

he was to have been indicted April 21, 2009, by the same grand jury well beyond its 18 month

term. The Petitioner submits the dicta of, "In learning the whole story does not end at trial."

Third, with respect to In re United States Catholic Conference, 824 F.2d 156 (2d Cir. 1986),

this court opined that "we have a sua sponte duty to review the lower court's subject matter

jurisdiction." To Note, Petitioner's claim he believes is inapposite in this Court's determination of

8

United States v. Sherry, 2000 U.S. App. LEXIS 23806 (2d Cir. Sept. 2000), as he is not

speculating about indictment as noted above, the grand jury is alleged to have been empanelled

on May 4, 2007, then he is indicted as it were on April 21, 2009. As stated above in Appendix E,

Docket 1, and Appendix F, Petitioner made his inquiry of the Court Clerk(s) which revealed no

judicial order or ascent in record extending his grand juries term. "The term of the Grand Jury

starts on the date of empanelment, which is the date it is first convened. United States v.

Armored Transport, 629 F.2d 1313, 1316-17 (9th Cir.1980).

Federal grand juries are creatures of Rule 6, Federal Rules of Criminal Procedure. Ordinarily, a

regular grand jury in the federal system can sit for up to a maximum of eighteen months,

although the court can discharge the grand jury before the end of the eighteen-month period.

Rule 6(g), Federal Rules of Criminal Procedure. In fact, it is the practice in many districts to

excuse grand juries after only 12 months or as soon thereafter as the grand jury's business is

concluded and in this case, the express term of the original term of the grand jury was only

twelve months. Rule 6 provides that in the case of a regular grand jury, the court may extend

the service of the grand jury for a period of six months or less if the court determines that the

extension is in the public interest. Fed.R.Crim.P., 6(g).

The purpose of this provision of Rule 6 was to permit some degree of flexibility as to the

discharge of grand juries and to avoid (1) the waste of time and resources required to present a

case to a successor grand jury when the first grand jury has expired shortly before the end of an

investigation; and (2) precipitous action to conclude an investigation on the eve of the expiration

date of the grand jury. Advisory Committee Note to 1983 Amendment to Rule 6(g), 97 F.R.D.

245, 277 (1983). Rule 6(6) appears to contemplate only one six-month extension. Moreover, the

Advisory Committee Note on the amendment which added subsection (g) indicates that

9

extending grand juries was intended to be the exception and not the norm. Advisory Committee

Note to 1983 Amendment to Rule 6(g), 97 FRD 25, 277 (1983).

A grand jury whose term has expired is no longer considered a grand jury; it loses the power to

indict, to subpoena witnesses, and to engage in any of the other actions that a grand jury is

otherwise entitled to perform. United States v. Bolton , 893 F.2d 894 (7th Cir. 1990) ;

United States v. Macklin , 523 F.2d 193 (2d Cir. 1975 ) . See also United States v. Armored

Transp., Inc. , 629 F.2d 1313 (9th Cir. 1980) ; United States v. Fein , 504 F.2d 1170 (2d Cir.

1974).

It is well settled that the return of an indictment after expiration of the term of a grand jury is a

nullity. Wright & Miller, 1 Fed. Prac. & Proc. Crim.3d § 112(“An indictment issued by a grand

jury whose term had expired is void and no effect can be given to a nunc pro tunc order that

purported to extend the term of the grand jury retroactively.”) The trial court completely lacks

jurisdiction to proceed under such an indictment and it is fundamental error that may be raised at

any time, even after trial of the case is concluded. United States v. Bolton , 893 F.2d 894 (7th Cir.

1990) (“It is well settled that unless there is a valid waiver, the lack of a valid indictment in a

felony case is a defect going to the jurisdiction of the court, citing Smith v. United States , 360

U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959)).

Both regular and special grand juries are statutory creations, See, e.g., In re Mills , 135 U.S. 263,

267, 10 S.Ct. 762, 763, 34 L.Ed. 107 (1890), and each can exist only as authorized by the statute

or rule pertaining to it. See, e.g., United States v. Macklin , 523 F.2d 193, 197 (2d Cir.1975) .

Accord United States v. McKay , 45 F.Supp. 1007, 1015 (E.D.Mich. 1942) . See also Federal

Grand Jury: A Guide To Law And Practice, Susan W. Brenner, Gregory G. Lockhart and Lori E.

Shaw, § 6.8.1. When a regular grand jury is convened in accordance with Rule 6 it exists for no

10

longer than specified, and its actions during the specified period only are lawful. Id., at 195. See

also Federal Grand Jury: A Guide to Law and Practice, § 6.8.1, supra.

A grand jury's existence beyond its initial term depends on the district court: If a court extends a

grand jury's term, and if the extension is authorized by the statute or rule governing that grand

jury, the grand jury's existence has been lawfully continued and its actions during the extended

term are valid. Id., at 195-197. If a district court does not extend a grand jury's term, or does not

do so in accordance with the statute or rule governing that grand jury, the grand jury ceases to

exist at the end of its term and any actions it takes thereafter are void ab initio. Id. at 197. See

also United States v. Daniels , 902 F.2d 1238, 1240 (7th Cir.1990) , cert. denied, 498 U.S. 981,

111 S.Ct. 510, 112 L.Ed.2d 522 (1990) (“An indictment issued by a grand jury whose term is up

and has not been validly extended is void.”). An indictment returned by a grand jury after its

term lapsed without being lawfully extended is a nullity, which does not give the district court

jurisdiction to proceed in that matter. Id., at 196-197. Accord United States v. Bolton , 893 F.2d

894, 895 (7th Cir. 1990). An unauthorized extension of the term of a grand jury beyond 18

months is a defect that goes to the very existence of the grand jury itself. United States v.

Macklin , 523 F.2d 193 (2nd Cir. 1975) . A grand jury created under Rule 6 could not function as

de facto grand jury beyond its term even though it had color of right to exist in order extending

term, and such a grand jury was powerless to return an indictment based on testimony given after

expiration of the term of the grand jury.United States v. Fein , 504 F.2d 1170 (2nd Cir. 1974) .

The Macklin Case:

Pursuant United States v. Macklin, 523 F.2d Cir. 1975), the 2nd Circuit Court affirmed the

District Court's dismissal of [his] indictment, (opining) that the indictment handed down by the

grand jury was a nullity because it was issued after the expiration of the statutory 18 month

11

period, Fed.R.Crim.P. 6(g). This Court further held that the trial court was thus without

jurisdiction to hear the case because there had been NO valid indictment, Fed.R.Crim.P.7(a).

Concluding, consistent with "Fein" that this is not merely a defect in the "institution of the

prosecution", but left the court without jurisdiction. See "U.S. v. Macklin" (citations omitted).

Therefore, under the principles of In Re Von Bulow, 828 F.2d 94 (2d Cir. 1987), the Petitioner

is entitled to relief in that the District Court erred in not apprising itself of its lack of a valid case

or controversy, to wit expired term of the grand jury, and then the 2nd Circuit Court of Appeals

denied Petitioner’s Writ of Mandamus to rectify such an unconstitutional act and

corresponding lack of subject matter jurisdiction in his case.

A claimed nunc pro tunc order cannot necessarily validate an indictment returned after

expiration of the term of the grand jury. United States v. Lytle , 658 F.Supp. 1321, 1326 -1327

(N.D.Ill. 1987); United States v. Fein , 504 F.2d 1170, 1173 (2d Cir. 1974) ; and see also: United

States v. Johnson , 123 F.2d 111, 120 (7th Cir. 1941) , rev'd on other grounds, 319 U.S. 503, 63

S.Ct. 1233, 87 L.Ed. 1546 (1943) (a reversal that, at least by implication, effectively confirmed

the nullity of an indictment by a grand jury that was then without legal existence; see id at 507,

508, 63 S.Ct. at 1235, 1236).

A court's failure to act, or a Court's incorrect action, does not authorize the entry of a nunc pro

tunc decision. Occidental Fire & Casualty Company of North Carolina v. Great Plains Capital

Corp. , 912 F.Supp. 515 (S.D.Fla. 1995) , citing Recile v. Ward , 496 F.2d 675, 680 (5th Cir.

(1974) (quoting Freeman on Judgments, § 131). Similarly, it is not the function of a nunc pro

tunc order to supply or modify matters of fact.

The issuance of orders nunc pro tunc is a mechanism not available for the benefit of parties who

fail to observe proper procedure. Delays or errors which are attributable to the laches of the

12

parties do not entitle those parties to the benefit of a retrospective judgment. Mitchell v.

Overman , 103 U.S. (13 Otto) 62, 64-65, 26 L.Ed. 369 (1881) .

We also know Constitutionally that there cannot be a secret docket or a dual docketing record

system. In The Hartford Courant Company v. Joseph H. Pellegrino, 380, F3d, 83, (2004),

“The court determined that the “maintenance of a public and a sealed docket is inconsistent with

affording the various interests of the public and the press meaningful access to criminal

proceedings” and that the “dual-docketing system can effectively preclude the public and the

press from seeking to exercise their constitutional right of access to the transcripts of closed

bench conferences.” The dual docketing system thus violated the public's First Amendment

right of access by rendering it impossible for anyone to exercise that right.

Additionally, the secrecy of the Grand Jury ends when it returns an indictment and is then

discharged. United States v. General Motors, 352 F.Supp 1071, 1072 (1973); Metzler v.

United States, 64 F2d 203, 206 (1933); (Where the ends of justice can be furthered thereby and

when the reasons for secrecy no longer exists, the policy of the law requires that the veil of

secrecy be raised); Hertzog v. United States, 99 Led 1299, 1302 (1955); ([T]he veil of secrecy

can be lifted from the grand jury minutes when “the ends of justice can be furthered thereby”);

United States v. Socony-Vacuum Oil Co., 310 US 150, 233, (1940); ([A]fter the grand jury’s

functions are ended, disclosure is wholly proper where the ends of justice require it); (Certainly

“disclosure is wholly proper where the ends of justice require it”); Pittsburg Plate Glass Co. v.

United States, 360 US 395, 400 (1959)

It is clear from the record or lack thereof that there was no order given to extend the grand jury

beyond its 18 month term. It is the pattern of this district to go 12 months and then start anew.

The record is totally absent and Petitioner request that this Court grant Certiorari on this issue.

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POINT II-

CERTIORARI SHOULD BE GRANTED BECAUSE SECOND CIRCUIT COURT OF APPEALS ERRED IN DENYING PETITIONER WRIT OF MANDAMUS IN THAT AUSA MAY HAVE PERSONALLY INDICTED PETITIONER MISUSING THE E-GOVERNMENT ACT TO EVADE INDENTIFICATION OF GRAND JURY FOREPERSON, THEREBY DISTRICT COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER PETITIONER TO TRY, PROSECUTE, CONVICT AND INCARCERATE PETITIONER IN DIRECT VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE CONSTITUTION. SOME CIRCUIT COURTS WINK AT THIS VIOLATION AND OTHERS DO NOT, UNIFORMITY IS NEEDED

It appears, as shown on the face of the indictment, that the government attorney is misusing the

proscriptions of the (e-government) act and Western District of New York Electronic Filing

Policies to evade identification of any grand jury foreperson. Noticeably, neither policy provide

for the complete removal of the signature of any grand jury foreperson. Rather, redaction via

blackening out a major portion of a valid signature. Neither local Rules of the Western District of

New York, nor electronic filing policies allow for electronic signatures of an (unregistered with

Pacer) grand jury foreperson. In fact, the Administrative Procedures Guide states in §§ 2 (c) (1),

Appendix G that “Charging instruments in criminal cases shall be filed in the traditional manner

rather than electronically.” Petitioner’s indictment had both the grand jury foreperson and the US

Attorney signature filed electronically [“/s/” foreperson] wherein the indictment should have had

the Foreperson’s cursive signature redacted shown and the US Attorney signature in cursive.

Petitioner also believes that there is a sufficient showing (by the government attorney) of

misconduct before the Grand Jury to warrant further investigations. See United States v. Agurs,

427 U.S. 97, 107-11 (1976). This same AUSA has shown a pattern of such misconduct such as in

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a recent case in, United States v. Koschtschuk: August 1, 2011- Case 1:09-cr-00096-WMS-

JJM and Certified copy of ORDER OF DISMISSAL (Misconduct before the grand jury showing

Fifth Amendment violations and Fraud upon the Court in the WDNY). Appendix H. In this

particular case, the accused and others were being prosecuted under a third superseding

indictment Docket #143, but when the Decision and Order of his dismissal came, and also stated

in his Docket #634, that his ‘pending’ indictment was dismissed. His third superseding

indictment wasn’t pending, his indictment was in place and his case was being prosecuted as

though the indictments were valid, but they were not. Why? Impropriety before the grand jury by

AUSA, Anthony Bruce.

In short, here is the scheme that is being employed by the AUSA, Anthony Bruce.

The Authority of the AUSA: states under 28 U.S.C. Section 547 entitled that “Duties of the

United States Attorney, Section 547 does allow the government attorney to start a criminal

matter by electronically signing a draft indictment, then uploading it to the Court docket portal.

This act is done in place of grand jury or foreperson signing (approving the indictment), then

redaction of his signature by the Court after the alleged “returning” of their ‘True Bill’. What is

done next is that the AUSA after not getting a valid indictment signed by the jury foreperson, he

then files the alleged indictment with the Clerk’s office using the New York electronic filing

system as though the foreperson did sign it by filing the ‘True Bill’ in place of the foreperson. In

essence, the AUSA becomes the personal indicter of the Petitioner instead of the grand jury.

In Petitioner’s case, the alleged Grand Jury met for only one day on April 21, 2009, about 24

months after it being empaneled on May 4, 2007, allegedly indicted Petitioner 6 months past the

18 month limit by Rule and statute as described in Point I above.

15

Remember, the Clerks of the (WDNY) said that Petitioner’s empaneled jury was not in existence

and there were not at that time period two Grand Juries empaneled during the alleged time frame

of his indictment. A newly empaneled Grand Jury was in existence at that time and it started on

May 4, 2008, and that Grand Jury was not his. The allegedly expired Grand Jury met for only

one day and indicted him on that same day, April 21, 2009.

This goes to the heart of accountability to preserve the proceedings of the judicial process. If

District Courts do not enforce whether a Grand Jury is valid or expired and they do not have a

documented record that shows an order for extension was granted, and they are not held

accountable or mandated to do such, such unbridled runaway judicial discretion can easily vitiate

and cause 5th and 6th Amendment violations to the Constitution, which can easily eviscerate

the people’s protections from government. If some Courts wink at this process to enforce, and

place into the record the ordered extension from the Chief Judge, then what is the sense of

having the pretense of a Grand Jury or Rule 6(g) at all. Why has either one of them? Reading the

explanations of the judges in the cases below, as they masterfully and artfully dance around these

bed rock Constitutional principles with eloquent explanations that quite frankly defy the spirit as

well as the letter of the law. This latitude invites the temptation to bypass the Constitutional

protections afforded the accused. This is exactly what may have happened in Petitioner’s case. It

is so important for the Supreme Court to put an end to a to this practice which can be very

disconcerting to the public’s view of the judicial process as well as elevating the hazards to the

accused who is Constitutionally violated.

As an example: In United States v. Dean C. Plaskett, et al, Criminal No. 2007–60. Feb. 4,

2008, the defendants argue that the grand jury foreperson failed to sign the indictment, and

therefore the indictment should be dismissed. Rule 6(c) is clear; the foreperson ... will sign all

16

indictments. The foreperson—or another juror designated by the foreperson—will record the

number of jurors concurring in every indictment and will file the record with the clerk, but the

record may not be made public unless the court so orders. This rule seems clear and straight

forward, however, the Court stated, “ assuming the foreperson had failed to sign the indictment,

that defect would not rise to the level of prejudicial error sufficient to warrant dismissal of the

indictment.”, quoting this Court, See Hobby v. United States,   468 U.S. 339, 344, 104 S.Ct. 3093,

82 L.Ed.2d 260 (1984) (“[T]he foreman's duty to sign the indictment is a formality, for the

absence of the foreman's signature is a mere technical irregularity that is not necessarily fatal to

the indictment.”); see also, e.g., United States v. Willaman,   437 F .3d 354, 361 (3d Cir.2006)

(holding that “the failure of the grand jury foreperson to sign the indictment [w]as a mere

technical deficiency, and thus conclud[ing] that [the defendant]'s challenge to the sufficiency of

the indictment d[id] not raise an issue entitling him to relief”); United States v. Titchell,   261 F.3d

348, 351 (3d Cir.2001) (holding that, while the failure of the grand jury foreperson to sign the

indictment was error, such error did not prejudice the defendant).

In United States v. Monty M. Mariner, No. 4:09–cr–101.No. 4:12–cv–072. Dec. 4, 2012, on

the issue in dealing with grand jury foreperson signatures, “Even if one or both signatures were

missing, Mariner would not be entitled to relief. Courts have recognized that the absence of

signatures of the foreperson and the government attorney does not render an indictment defective

and deprive a district court of jurisdiction.” In Hobby v. United States,   468 U.S. 339 (1984) , in

which the Supreme Court considered a claim of discrimination in the selection of the grand jury

foreperson, the Supreme Court described the foreperson's duties as set out in Rule 6(c), including

the signing of indictments, as “essentially clerical in nature” which “carry with them no special

powers or duties that meaningfully affect the rights of persons that the grand jury charges with a

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crime.” Id.   at 344–45.  The Court also noted the foreperson role has no special authority, separate

from the grand jury as a whole, to act in a manner which influences or determines whether a

person should be prosecuted. Id.   at 345.  The foreperson's signature on an indictment is a

formality and the absence of the signature is a technical defect that is not necessarily fatal to the

indictment. Id. Appellate courts have also rejected challenges on appeal by defendants alleging

their indictments were not signed by the foreperson. See United States v. Titchell,   261 F.3d 348,

351 (3d Cir.2001); United States v. Marshall,   910 F.2d 1241, 1243 (5th Cir.1990)  (noting the

commentary toRule 6(c) of the Federal Rules of Criminal Procedure makes clear that the

foreperson's failure to sign the indictment is an irregularity and is not fatal, quoting United States

v. Marshall,   910 F.2d 1241, 1243 (5th Cir.1990) .

In United States v. Morse,   613 F.3d 787 (8th Cir.2010) , the defendant filed a pretrial motion to

dismiss for lack of a signed indictment, which was denied by the district court.Id.   at 791.  On

appeal, the defendant argued that the failure to provide him a signed copy of his indictment

violated his due process rights. Id .   at 793.  In rejecting the claim, the Eighth Circuit found that

signatures on the indictment of the foreperson and government attorney “are a formality, and

even the lack of signatures would not render an indictment invalid.” Id. (citing United States v.

Willaman,   437 F.3d 354, 360 (3d Cir.2006)  and United States v.. Irorere,   228 F.3d 816, 830–31

(7th Cir.2000)). Even if the indictment in his case had been missing the signatures of the

foreperson and an attorney for the government, those defects would not render the indictment

fatally defective nor deprive the district court of jurisdiction.

Petitioner claims that the problem with this type of thinking and judicial analysis is that it is all

based on the assumption and presumption that all parties in the judicial process are acting on the

up and up. If a vindictive AUSA cannot gain a valid grand jury indictment, what’s to stop

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him from uploading the draft indictment into the Clerk’s portal using the e-government act

to file electronically the electronic signatures of both he and the foreperson when there was

no foreperson? And since the Court’s above have ruled that the signatures of the foreperson and

AUSA are but a technicality and formality, and not fatal to the indictment, the Clerk is none the

wiser to what has happened. Even if the Magistrate states he verified everything in open Court

and verified the grand jury Concurrence, where is the proof that he did it in and on the record?

Anybody can say they did anything, but without a mandate that it be presented into the record or

docket and proved without a doubt, all of it becomes hearsay by the judicial officers. This causes

pause in ascertaining the validity of the judicial process in the public’s eye, which can promote

uncertainty in their minds.

In Petitioner’s case, it looks as if the grand jury was most certainly expired; thusly it

became ripe for abuse. If Petitioner’s indictment was expired, it doesn’t matter if there was any

signature(s) on the indictment or not, or if there was a court clerks oversight or not, or if there

was an open court concurrence verification or not, all of it is a nullity. The Court should revisit

it’s ruling in Hobby, supra and strengthen and remove the laxity of the straight forward wording

of the Rule 6 requirements. This should be done by the Court to ensure the protections of the

grand jury’s ‘True Bill’ procedures and Constitutionally reign in the potential abuse of the

AUSA, and loose discretion of the Chief Judge of the District in his latitude in granting

extensions to empaneled grand juries. Instead of courts saying that it may or may not be signed

by the foreperson and AUSA, or that a Chief judge may or may not grant a grand jury extension,

wherein is not shown on the record anywhere, and where the judges and judicial officers say, just

‘trust me’, I really did do it though, why not state and do exactly what Rule 6 (c), (g) says they

should do. This would eliminate the temptation for abuse, the judicial system would have

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proper structure on what to do and follow, and potential citizen’s would not be indicted by

fictitious grand juries or an over zealous prosecutor as what may have happened here.

Remember, this AUSA, Anthony Bruce, had a case recently thrown based on misconduct.

Appendix H. The magistrate in Petitioner’s case even stated on the record that this same AUSA

was exceedingly vindictive towards the Petitioner. Appendix I. The AUSA may have knowingly

indicted Petitioner with an expired grand jury, or personally himself, because the Rules invite

such mischief that can cause for the accused the loss of life and limb and this is something that

can be easily avoided and remedied. The Supreme Court and Appellate Courts do not have a ton

of case law on this and the Circuit Courts are certainly confused on its adherence. Clarity would

bring uniformity and integrity, to not only to all the Circuit and District Courts, but also to the

sanctity of the Constitution and the public trust.

Petitioner asserts that the appellate court failed in its duty to determine the validity of his Grand

Jury, and if it is invalid, then any offense it charged is a nullity whether or not its raised before

trial, at trial or on appeal’. United States v. Foley, 73 F3d 484, 488 (2d Cir. 1996).

Thus the Court should grant Certiorari to rectify this unconstitutional act wherein the District

Court and government acted without subject matter jurisdiction is his case, thusly everything in

Petitioners case is void from its inception.

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POINT III

THE DISTRICT COURT AND GOVERNMENT DO NOT HAVE SUBJECT MATTER JURISDICTION OVER PETITIONER WHEREIN TITLE 18, SECTIONS 1344, 3147(1) AND 1028(A)(4), HAVE NOT BEEN PLACED INTO THE FEDERAL REGISTRY WITHIN 30 DAYS OF ITS ALLEGED PASSING AND THERE EXISTS NO CODE OF FEDERAL REGULATIONS SUPPORTING THE STATUTE AS REQUIRED BY LAW

Petitioner contends that Title 18, Public Law 80-772, was never placed into The Federal

Registry as required by law for 30 days after its alleged passing, thusly, in violation of The

Federal Registry Act as well as The Administrative Procedures Act. Should the Act be found

to have been placed into the Federal Registry within 30 days of its alleged passing, what remains

unconstitutionally is that there does not exist the underlying supporting Federal Code of

Regulations (CFR’s) to support the statutes which vitiates such law. The whole of Title 18,

Sections H.R. 3190, 3231, and their supporting subsections are missing in the Code of Federal

Regulations books and manuals. Appendix J. The statutes without the supporting accompanying

regulations make such law wholly void; “we think it important to note that the Act's civil and

criminal penalties attach only upon violation of the regulations” … and without them, …” the

Act itself would impose no penalties on anyone.” See: California Banker’s Assoc . v. Schultz ,

416 US 21; 22, 26, (1974), United States v. Mersky , 361 US 431, 438 (1960) and Hotch . v.

United States , 212 F.2d 280, 283 (1954) all in violation of The Federal Registry Act, The

Administrative Procedures Act and Fair Warning Doctrine.

“Once promulgated, these regulations, called for by the statute itself, have the force of

law, and violations thereof incur criminal prosecutions, just as if all the details had been

incorporated into the congressional language.” “The result is that neither the statute nor the

regulations are complete without the other, and only together do they have any force. In

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effect, therefore, the construction of one necessarily involves the construction of the other.”

[Emp. added] United States v. Mersky, 361 US 431, 438, 80 S.Ct. 459, 4 L.Ed.2d 423. The

court in Hotch v. United States , 212 F.2d 280, 283 declared that, …“if the rule itself is not

published, it follows that it has not been issued; and if a rule has not been issued, it has no force

as law.” “If certain acts have been made crimes by duly enacted law, the knowledge of their

contemplated administrative proscription cannot subject the informed person to criminal

prosecution.  While ignorance of the law is no defense, it is conversely true that a law which has

not been duly enacted is not a law, and therefore a person who does not comply with its

provisions cannot be guilty of any crime. Id. at 284”. 

Petitioner contends said Acts placement specifically, Title 18, H.R. 3190, 3231, 1344,

3147(1) et al into the Federal Registry does not exist and there are no supporting Code of

Federal Regulations. Petitioner cannot prove a negative. The burden is on the government to

prove a positive. The government, District Court and Appellate Court never responded to all of

Petitioner’s paperwork concerning this specific issue. When Petitioner repeatedly challenged the

subject matter jurisdiction of this action to the government and District Court, the burden then

shifted to the government to prove that they have it. The District Court never compelled the

government to respond to Petitioner and the Court itself stood silent. All published such books of

said Title 18 CFR’s are ‘void’ and do not contain such supporting (CFR) regulations listed in

their books, especially section 1344, 3147(1) and 1028(a)(1) in which he was charged. Appdx. J

When a Court lacks subject matter jurisdiction, the issue can be raised anytime even long

after a case has been settled. "Once jurisdiction is challenged, the court cannot proceed when it

clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but,

rather, should dismiss the action." Melo v. US , 505 F2d 1026 (1974). "The law provides that

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once State and Federal jurisdiction has been challenged, it must be proven." --Main v. Thiboutot ,

48 U.S. 1, 100 S. Ct. 2502 (1980). "Once jurisdiction is challenged, it must be proven." --Hagens

v. Lavine , 415 U.S. 533 (1974).

Petitioner contends said Acts placement specifically, Title 18, H.R. 3190, 3231, 1344,

3147(1) et al into the Federal Registry 30 days after its alleged passing does not exist and there

are no supporting Code of Federal Regulations. The offense charged must have both the statute

and the supporting Code of Federal Regulations to have any force or effect, thusly the District

Court and government were without subject matter jurisdiction in his case.

Petitioner requests this Court to grant Certiorari to review and rectify this issue

concerning him.

Conclusion:

Petitioner has shown that there is no showing in the enclosed certified docket sheet and records

Appendix E where the District Court judge extended the term of the empanelled Grand Jury

beyond the 18 month time frame wherein defendant was indicted according to F.R.C.P., Rule

6(c) (g) (f). The record is also bare of any grand jury concurrence, extension, and where it was

returned in open court. The judicial officers may say it was done, but there is no evidence in the

record that it was in fact done.

Also, there may be only an electronic signature(s) obtained by the AUSA wherein he was the

personal indictor of Petitioner and there was no redacted signature signed by the Grand Jury

Foreman, as required in the Rules and policies in the Western District of New York. Appendix

G. The Petitioner may have been indicted by no grand jury at all.

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Relief Requested:

Wherefore, due to the government's lack of subject matter jurisdiction as described in all the

above three issues concerning indictment 09-CR-121-S, a Writ of Certiorari by this Court in

reviewing the denied Writ of Mandamus by the 2nd Circuit Court will "aide in the

administration of justice" because "exceptional circumstances" warrant the extraordinary

remedy asked for by the Petitioner Shane Christopher Buczek. Therefore, Petitioner respectfully

petitions this Honorable Court to issue the Writ forthwith and provide Petitioner just and proper

relief due him, under all and appropriate circumstances.

Dated: 26, of July, 2013

Respectfully Submitted,

Shane-Christopher:Buczek

Shane Christopher Buczek – Pro SePO Box 93,Derby, New York 14047716-947-5384

Verification

I Shane-Christopher:Buczek in this above entitled matter, hereby verify under the penalty of perjury, under the laws of the united states of America, that the above statements of facts and law are true and correct, according to the best of My current information, knowledge, and belief, so help Me God, pursuant to 28 USC Sec. 1746 (1)

July 26, 2013

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