Charles R. Pixley, Sui Juris
Citizen of New York state
c/o general delivery
Rochester [zip code exempt]
NEW YORK STATE
In Propria Persona
Under Protest and Without Prejudice
By Special Visitation Only
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
UNITED STATES OF AMERICA [sic], ) Case Number 96-1476
)
Plaintiffs/Appellees, ) MOTION FOR STAY PENDING REVIEW
) AND REQUEST FOR LEAVE TO FILE
v. ) ENLARGED BRIEF:
)
CHARLES R. PIXLEY [sic], ) Rule 18, Federal Rules
) of Appellate Procedure
Defendant/Appellant. )
)
)
________________________________)
COMES NOW Charles R. Pixley, Sui Juris, Citizen of New York
state, expressly not a citizen of the United States ("federal
citizen"), federal witness, and Defendant in the above entitled
case (hereinafter "Appellant"), to move this honorable Court,
pursuant to Rule 18 of the Federal Rules of Appellate Procedure
("FRAP"), for immediate review of this Court's failure to rule on
Appellant's previously filed MOTION TO STAY MANDATE AND
PROCEEDINGS, PENDING DISCOVERY OF DOCUMENTS REQUESTED UNDER THE
FOIA, AND FINAL RESOLUTION OF CHALLENGE TO CONSTITUTIONALITY OF
THE JURY SELECTION AND SERVICE ACT. Appellant also respectfully
requests that this honorable Court vacate the ORDER by Hon.
Michael A. Telesca, dated and filed on August 11, 1997, entering
judgment in the United States District Court against Appellant.
Motions for Stay Pending Review and for Enlarged Brief:
Page 1 of 11
THIS COURT IS OUT OF ORDER
For procedural reasons which Appellant argues are obvious,
this honorable Court appears to have made a reversible error by
failing to rule on Appellant's recently filed MOTION TO STAY
MANDATE AND PROCEEDINGS ("STAY MOTION"). Instead of hearing and
ruling upon said STAY MOTION, this Court proceeded to issue a
MANDATE that the judgment of the United States District Court
("USDC") for the Western District of New York, be affirmed in
accordance with the opinion of this Court.
This Court's MANDATE also appears to have been issued on a
false premise -- that the cause was "argued by counsel" [sic]
-- in view of the fact that Appellant is now proceeding In
Propria Persona and did file Appellant's previous STAY MOTION in
that mode. Appellant is decidedly not proceeding Pro Se [sic].
Appellant submits that the appropriate remedy for this
obvious procedural error is to vacate this Court's MANDATE and
the district court's entry of judgment, pending final review of
the substantial issues of law and fact that have arisen as a
consequence of Appellant's proper and timely STAY MOTION, which
is now before this Court, and which warrants a ruling by same.
INCORPORATION OF RECENT PLEADINGS
Appellant also wishes to draw the specific attention of this
honorable Court to Appellant's NOTICE AND DEMAND FOR MANDATORY
JUDICIAL NOTICE, and to Appellant's AFFIDAVIT OF DEFAULT IN RE
DOCUMENTS REQUESTED UNDER THE FREEDOM OF INFORMATION ACT
("FOIA"), both filed and served concurrently with the instant
MOTION. Appellant hereby incorporates the latter pleadings by
reference, as if both were set forth fully herein.
Motions for Stay Pending Review and for Enlarged Brief:
Page 2 of 11
Appellant's NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE
invokes Rule 201(d), Federal Rules of Evidence ("FREv"), to bring
to the fore Appellant's Petition for the Issuance of Rules
promulgating the federal statutes at 18 U.S.C. 371, 3231, and 28
U.S.C. 1861 et seq. With all due respect, Appellant argues that
this Court is mandated, under the imperative meaning of language
used in FREv Rule 201(d), to take formal judicial Notice of
Appellant's Petition for the Issuance of Rules, submitted to the
U.S. Department of Justice ("DOJ") on Saturday, August 23, 1997,
via certified U.S. Mail, return receipt requested.
Appellant's AFFIDAVIT OF DEFAULT IN RE DOCUMENTS REQUESTED
UNDER THE FREEDOM OF INFORMATION ACT ("FOIA") commemorates and
testifies to the failure by DOJ to issue regulations pursuant to
the administrative procedures for same which are enacted in the
Administrative Procedures Act ("APA"). This Court is bound to
take formal judicial Notice of Appellant's AFFIDAVIT in the
matter of these controlling regulations. Title 5 of the United
States Code ("U.S.C.") has been enacted into positive law.
Appellant has made a diligent and good faith effort to
locate said regulations in the nearest federal depository
library, and was unable to locate any published references to the
regulations in question. Appellant then submitted proper
requests under the FOIA for certified copies of said regulations.
The agencies failed to produce certified copies of the requested
regulations, on or before the statutory deadlines established for
producing documents properly requested under the FOIA.
Therefore, Appellant's administrative remedies under the FOIA are
now exhausted. See 5 U.S.C. 552(a)(4)(B) in chief.
Motions for Stay Pending Review and for Enlarged Brief:
Page 3 of 11
It may appear that Appellant is now required to petition the
District Court of the United States ("DCUS") for declaratory and
injunctive relief in the matter of these FOIA requests, which
have, to date, failed to yield the documents requested. However,
Appellant's Petition for the Issuance of Rules supra should
demonstrate to this honorable Court that all of Appellant's
administrative remedies have still not been exhausted. Hence,
Appellant respectfully argues that this Court is, once again,
proceeding out of order, also for these reasons.
Specifically, the two Public protection clauses found in the
Administrative Procedures Act ("APA") and Federal Register Act
("FRA"), respectively, provide ample grounds for this honorable
Court to conclude that the issuance of a formal MANDATE, and
entry of judgment in the USDC, constitute the end of a judicial
process which should never have started in the first place,
without first completing essential administrative processes which
are imposed upon the Executive Branch by very clear and
undisputed provisions of the APA and FRA. Appellant directs this
Court specifically to the statutes at 5 U.S.C. 552(a)(1), 553(e),
and 44 U.S.C. 1507, all of which are Acts of Congress rendered
supreme Law, pursuant to the Supremacy Clause in the Constitution
for the United States of America, as lawfully amended
(hereinafter "U.S. Constitution"). See Article VI, Clause 2.
Motions for Stay Pending Review and for Enlarged Brief:
Page 4 of 11
CHALLENGE TO JURY SELECTION AND SERVICE ACT ("JSSA")
Appellant's previously filed STAY MOTION has raised a
fundamental constitutional challenge which is, by definition,
non-trivial and non-frivolous, notwithstanding any arguments to
the contrary which have been made, or will be made, by Appellees
or by attorneys for the United States. Appellant has requested
this honorable Court first to rule on Appellant's formal
challenge to the obvious and prohibited discrimination, now
evident in the JSSA, against Citizens of the several states who
are not also federal citizens, by Right of Election.
The existence of the "Right of Election" [sic] in American
Law never repealed, is a matter which this honorable Court should
deliberate, and adjudicate, with a complete set of pertinent
historical details and related case holdings. To this end,
Appellant is honored to bring to this esteemed panel's attention,
the rather substantial body of fact and law which has been
assembled in the attached documentation. See Exhibits "A" & "B".
In support of this proposition, Appellant respectfully
requests leave of this Court to file an enlarged brief which
incorporates into the instant MOTION the two (2) Exhibits which
are attached hereto. Exhibit "A" is the MOTION FOR DISCRETIONARY
JUDICIAL NOTICE, AND APPLICATION FOR LEAVE TO FILE ENLARGED
BRIEF, and Exhibit "B" is APPELLANT'S FIRST SUPPLEMENT TO
APPLICATION FOR LEAVE TO FILE ENLARGED BRIEF, both submitted in
draft form to the defendant in the case of U.S.A. v. Gilbertson
and in Gilbertson v. U.S. et al., and both of which cases are now
before the United States Court of Appeals for the Eight Circuit
("8th Circuit"), in St. Louis, Missouri state.
Appellant argues that the proposed construction of the
Qualifications Clauses in the U.S. Constitution, as developed
carefully and methodologically in said pleadings, is indeed the
correct one, from which this Court should embark as a preferred,
if not necessary, point of analytical departure.
Motions for Stay Pending Review and for Enlarged Brief:
Page 5 of 11
Therefore, Appellant now submits said construction to this
Court, in support of Appellant's request, made hereby, for proper
judicial review of Appellant's challenge to the constitutionality
of the Jury Selection and Service Act ("JSSA"). Appellant argues
that the instant proceedings should be stayed indefinitely, until
the substantial issues of law and fact which are raised in these
pleadings can be finally settled, either by this Court, or by the
Supreme Court of the United States on Applications for Writs of
Habeas Corpus or Certiorari.
90-DAY EXTENSION IS IN EFFECT
Appellant submits that yet another reason exists to support
the conclusion that this Court is presently proceeding out of
order. Appellant respectfully directs the attention of this
Court to its ORDER dated July 25, 1997, specifically granting to
Appellant leave to proceed In Propria Persona. In so doing, the
Hon. Fred A. Parker also granted an extension of ninety (90)
days, for the purpose of allowing Appellant's new Counsel to come
up to speed with the complexities of the instant case. See lines
15 thru 18 on page 2 of 3 in Appellant's MOTION for same.
Motions for Stay Pending Review and for Enlarged Brief:
Page 6 of 11
SEPARATE STAY/DISMISSAL MOTION IS STILL PENDING,
TO RESOLVE A JURISDICTIONAL CHALLENGE
And further, Appellant respectfully moved this honorable
Court for a separate MOTION TO STAY PROCEEDINGS, OR DISMISS WITH
PREJUDICE, pending final resolution of Appellant's proper
challenge to the jurisdiction of the United States District Court
("USDC"). Said USDC tried the instant case on indictment by a
federal grand jury convened pursuant to an unconstitutional JSSA,
and without any Acts of Congress granting criminal jurisdiction
to that USDC in the first instance.
Appellant argues that said separate MOTION is still pending
before this Court, and deserves a timely and orderly ruling,
regardless of whether this Court decides to rule upon Appellant's
JSSA challenge. A dismissal with prejudice by this honorable
Court would render as moot both Appellant's challenge to the
constitutionality of the JSSA, and Appellant's MOTION TO STAY
further proceedings pending final review of the JSSA challenge.
Irrespective of Appellant's challenge to the JSSA, Appellant
argues that this honorable Court can, and should, dismiss with
prejudice, for lack of original jurisdiction over the subject
matter by the USDC, in the first instance.
ADMINISTRATIVE DUE PROCESS HAS NOT RUN
And further, pursuant to the Fifth Amendment and to 5 U.S.C.
552(a)(1), which states in pertinent part that a Person may not
in any manner be required to resort to, or be adversely affected
by, a matter required to be published in the Federal Register and
not so published, the absence of duly published regulations for
18 U.S.C. 371, 3231, and the JSSA are more than adequate grounds
for this honorable Court to hold that Appellant has been falsely
charged, and that all proceedings against Appellant have been
ultra vires (null and void) ab initio (from the beginning).
Motions for Stay Pending Review and for Enlarged Brief:
Page 7 of 11
REMEDIES REQUESTED
Wherefore, Appellant respectfully requests indefinite stays
of final mandate and of the instant proceedings, pending formal
discovery of documents requested under the FOIA, and final
resolution of the constitutionality of the JSSA, as recently
challenged before the 8th Circuit, which challenge Appellant
likewise brings now before this honorable Court.
In support of the above requested remedies, Appellant also
requests that this honorable Court vacate the interim MANDATE
previously issued by this Court, and the corresponding entry of
judgment by the USDC below, and also grant to Appellant leave to
file enlarged briefs which are necessary to deliberate, and to
adjudicate properly, Appellant's instant challenge to the JSSA.
In the alternative, Appellant respectfully requests an
immediate dismissal with prejudice, because the trial court
lacked all original jurisdiction over the subject matter of the
instant case, from the outset, quite apart from the JSSA defect.
Thank you very much for your consideration.
VERIFICATION
I, Charles R. Pixley, Sui Juris, Citizen of New York state,
federal witness, and expressly not a federal citizen, hereby
verify, under penalty of perjury, under the laws of the United
States of America, without the United States (federal
government), that the above statement of laws and facts is true
and correct, according to the best of My current information,
knowledge, and belief, so help Me God, per 28 U.S.C. 1746(1).
Executed on __________________________________
Respectfully submitted,
/s/ Charles R. Pixley
______________________________________________
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Motions for Stay Pending Review and for Enlarged Brief:
Page 8 of 11
PROOF OF SERVICE
I, Charles R. Pixley, Sui Juris, hereby certify, under penalty of
perjury, under the laws of the United States of America, without
the "United States," that I am at least 18 years of age, a
Citizen of one of the United States of America, and that I
personally served the following document(s):
MOTION FOR STAY PENDING REVIEW
AND REQUEST FOR LEAVE TO FILE ENLARGED BRIEF:
Rule 18, Federal Rules of Appellate Procedure
by placing one true and correct copy of said document(s) in first
class U.S. Mail, with postage prepaid and properly addressed to:
Attorney General Michael A. Telesca
Department of Justice United States District Court
10th & Constitution, N.W. 100 States Street
Washington [zip code exempt] Rochester [zip code exempt]
DISTRICT OF COLUMBIA NEW YORK STATE
Solicitor General Christopher Taffe
Department of Justice United States Attorneys
10th & Constitution, N.W. 620 Federal Building
Washington [zip code exempt] Rochester [zip code exempt]
DISTRICT OF COLUMBIA NEW YORK STATE
Courtesy copies to:
William H. Rehnquist, C.J. Judge Alex Kozinski (supervising)
Supreme Court of the U.S. Ninth Circuit Court of Appeals
One First Street, N.E. c/o P.O. Box 193939
Washington [zip code exempt] San Francisco [zip code exempt]
DISTRICT OF COLUMBIA CALIFORNIA STATE
[See USPS Publication #221 for addressing instructions.]
Dated: ______________________________________
/s/ Charles R. Pixley
______________________________________________
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Motions for Stay Pending Review and for Enlarged Brief:
Page 9 of 11
Exhibit "A":
NOTICE OF MOTION,
MOTION FOR DISCRETIONARY JUDICIAL NOTICE, AND
APPLICATION FOR LEAVE TO FILE ENLARGED BRIEF
in
U.S.A. v. Gilbertson and
Gilbertson v. U.S. et al.
Eight Circuit Court of Appeals
case number #97-2099-MNST
[D R A F T]
Motions for Stay Pending Review and for Enlarged Brief:
Page 10 of 11
Exhibit "B":
APPELLANT'S FIRST SUPPLEMENT TO
APPLICATION FOR LEAVE
TO FILE ENLARGED BRIEF
in
U.S.A. v. Gilbertson and
Gilbertson v. U.S. et al.
Eight Circuit Court of Appeals
case number #97-2099-MNST
[D R A F T]
Motions for Stay Pending Review and for Enlarged Brief:
Page 11 of 11
# # #
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U.S.A. v. Pixley