LIT COMMENTARY
The petition for review below responds to Court of Appeals for the Fifth Circuit Chief Judge Priscilla Owen’s erroneous dismissal of the Judicial Complaint against Senior United States District Judge David Hittner.
New post: A Threat’s A Threat, Unless it’s a Texas Lawyer https://t.co/RKtk3IvsdG
— LawsInTexas (@lawsintexasusa) January 21, 2021
Petition for Review: Judicial Misconduct Complaint No. 05-20-90128
We hereby petition the judicial council for review of the erroneous order of dismissal.
“The Burkes Wanted Certain Judges to be Shot.” – admitted liar Attorney Mark Hopkins stated in open court, intentionally repeated and then concluded by saying he – “wanted this to end, sooner than later…”
Inexcusably, all references we made in respect of the above awful statements by pro se lawyer Hopkins in our complaint has been consciously excluded in the order by the Chief Judge (“CJ”), who concludes that the Burkes evidence is non-existent, wholly unsupported, ‘conclusory, frivolous and merit-based. This is a wanton abuse of the CJ’s powers to dispose of complaints.1 The CJ has dismissed not only a judicial complaint, but patently condones a lawyer, Mark Daniel Hopkins of Hopkins Law, PLLC, Austin, Texas repugnant acts. Hopkins came before the lower court and falsely accused us of wanting ‘certain judges shot’ to the apprentice Magistrate Judge (“MJ”) (under the ‘management’ of Senior2 United States District Judge (“DJ”)).
The MJ joined in the assault on the Burkes, including stating that this was “way more serious than a counter claim” and shouting at John Burke “Are you a criminal?” – without first fact-checking Hopkins [self-admitted] lies before the court, witnesses and the shocked Burkes.
We were falsely accused and threatened by the Magistrate Judge in S.D. Tex. courtroom and this was brought to the attention of the DJ during court proceedings.3 Neither judge reacted to our treatment by the repugnant lawyer4 and nothing documented about the MJ’s attacks on our character. This was a serious and premeditated attempt by the lawyer to have us incarcerated5 and we suggest, will not go unpunished if this ‘grievance system’ fails to investigate and censure the parties we have named. (We are exhausting all remedies the court(s) have available as required
1 The CJ was a judge (not CJ) in 2019 when she signed on behalf of the Judicial Council, affirming the now former CJ’s decision to dismiss the Burke’s complaint against the 3-panel of judges, namely Davis, Haynes and Graves Jr. (e.g. our petition for review for that complaint). Now a CJ and with full authority to solely dispose of this complaint, she evidently seeks to abuse her new found authority by issuing threats and warnings based on unsubstantiated claims
– claims which are instantly repelled when you study our detailed complaint and read the insightful footnotes.
2 See our initial brief (amended) in Burke v. Hopkins, 20-20209 Doc: 00515533682, 08/19/2020 footnote 4, in part; “The congressional scheme for “senior judges” is by design violative of the Article III protections that are necessary to preserve a judge’s independence from undue pressures guaranteed to active judges under federal law.”
3 See; Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016). Here, the DJ was made fully aware by us in motions and filings of the unconstitutional, abhorrent and bias acts in the MJ’s courtroom, yet he ‘acquiesced’ and affirmed that behavior in his subsequent order(s) and is liable under the supervisory-liability theory.
4 “Magistrate judges may exercise civil contempt authority only in civil consent cases under 28 U.S.C. § 636(c) and criminal misdemeanor cases under 18 U.S.C. § 3401. Their authority in these cases is identical to that of a district judge.[footnote 285]. The limited civil contempt authority, though, does not restrict or limit the authority of magistrate judges to order sanctions under any other statute or provision of the federal rules.” – “A Guide to the Federal Magistrate Judges System”, Peter G. McCabe (Aug. 2014, Updated Oct. 2016).
5 The MJ was a former public defender who represented Yarbrough, who knowingly mailed a threatening communication to the DJ. He was sentenced to 21 months in 2014 (See Chron) and charged again in 2017.
generally).6 As stated, it was totally wiped from any order or judgment despite our repeated reminders in court filings. We are utterly aghast the CJ of the Court of Appeals also sees fit to issue a gratuitous threat against citizens – to whom she is responsible7 – without merit and in violation of due process and the constitution.
Addressing the 3 complaints: It is patently obvious the CJ wishes to label us as ‘vexatious litigants’ – but our history and court record falls incredibly short of the high standard required to be labeled as such, due to constitutional protections afforded to every citizen of the United States of America to have access to courts of equity in its entirety and without restriction.
“This is the Burkes’ third merits-related and conclusory judicial misconduct complaint. The Burkes are WARNED…, file a further merits-related, conclusory, frivolous, or repetitive complaint ”
We are not filing judicial complaints vexatiously.8 (i) The first complaint we filed was against the Judge in 2011.9 The time for considering this complaint has already expired (7 years).10 (ii) The second complaint against the 3-panel in 2019 has now been proven to be error by the former Chief Judge. We were unaware of the Breyer Report (“Breyer”) at the time of filing and the subsequent dismissal of that specific complaint. (iii) The current complaint, which was never registered as intended due to an apparent technical email glitch at this court, resulted in several months delay in acceptance of our complaint (2020) against Judge Hittner.11 For the same reasoning as (ii), the CJ
6 Title 18 U.S.C., Section 242 Deprivation by Color of law is a violation of a person or people’s civil rights and does not require a violent act and may be prosecuted – even against judges and lawyers. “That’s why it’s a federal crime for anyone acting under “color of law” to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means the person is using authority given to him or her by a local, state, or federal government agency.”- FBI.Gov. See; United States v. Rodella, No. CR 14-2783 JB D.N.M., Doc. 206, Feb. 18, 2015; specifically, Rodella jailed; “a term of 37 months is imposed as to Count 1 (Deprivation of Color of Law).”
7 “No mere tinkerers, the Framers upended things. Three rival branches deriving power from three unrivaled words— “We the People”—inscribed on the parchment in supersize script. In an era of kings and sultans, nothing was more audacious than the Preamble’s first three words, a script-flipping declaration that ultimate sovereignty resides not in the government but in the governed.” Collins v. Mnuchin, 938 F.3d 553, 562 (5th Cir. 2019)
8 See; “The statute defines a history of vexatious litigation as including having commenced, prosecuted, or maintained at least five state or federal civil actions as a pro se litigant in the immediately preceding seven-year period” In re Casey, 589 S.W.3d 850, 852 (Tex. 2019). We are nowhere near the statute requirements and the CJ should know this. 9 This judge, Lynn N. Hughes, demanded if the case was refiled, he be assigned the case. On refiling and after our judicial complaint it was reassigned to Judge Hittner/Magistrate Smith. Furthermore, see Audrey K Miller v. University of Houston System et al, cases 19-20752/3, (5th Cir., Jan 29, 2021, published). We rely upon the same laws, rules, relief and discretion as discussed by Judge Wilson in relation to our complaint against the DJ. We were not provided a fair hearing and our case was before a bias judge for the arguments stated here and in our two appeals pending before this court, namely Burke v. Ocwen, 19-20267 and Burke v. Hopkins, 20-20209.
10 In the alternative you can review the ‘independent’ review system about this judge on the website ‘therobingroom.com’ and search for the resulting profile page for this judge. It most certainly conflicts entirely with the views of the many complaints dismissed by the CJ’s over the years for this judge. We proclaim, that is why judges judging judges would not pass muster with an audit firm. It is open to abuse and fraud as witnessed in the attempted disposal of this complaint – which is quasi-criminal based on the detailed statements presented and the concerns raised. 11 The Burkes experienced the same delays in obtaining confirmation of their judicial complaint against a lower court judge at the Eleventh Circuit during 2020. We had to submit a letter to get a response, copying Sen. Feinstein.
erred in excluding Breyer from her order and/or dismissing our arguments as seemingly non- qualifying and/or unsupported.
Canceled Conference and Entry of Final Judgment During a Statewide / Nationwide / International Pandemic Lockdown: The DJ canceled a scheduled March 19, 2020 status conference on March 17 and entered final judgment with prejudice and without de novo review of the magistrates report, in favor of the defendants on March 18, thereby “intentionally depriving us of our right to a fair hearing.”
“When a state deprives a person of liberty or property through a hearing held under statutes and circumstances which necessarily interfere with the course of justice, it deprives him of liberty and property without due process of law.” Moore v. Dempsey, 261 U.S. 86; Frank v. Mangum, 237 US 309. – Tumey v. Ohio, 273 US 510, 511 (1927). The CJ should not be blanking the law, due process and the constitution. The Burkes have rights and these were violated. That is not conclusory, frivolous or hearsay, it is on the docket and the violations recorded in detail in the complaint and as documented in our appeal case(s) before this court.12
The CJ summarized (incorrectly): “For example, the judge: – denied the Burkes’ motion for electronic filing privileges on February 13, 2020 and, on March 14, 2020, “refused an extension of time to allow the Burkes to amend their complaint when Joanna Burke was gravely ill in hospital,”[ref. footnote 1] decisions which resulted in Mr. Burke’s having to disregard the Texas Governor’s “stay at home” orders to drive to the courthouse on March 29 during “a worldwide plague” to “hand-deliver the documents … while [Mrs.] Burke was in hospital on her own”;”.
This is a material error which shows the notable lack of review by the CJ in this case when she is making a summary based on a completely different period of time. No reliance can be taken from the CJ’s erroneous and dismissive review of our complaint which was signed off on a Sunday (8th Nov., 2020)13 and posted on the Tuesday, 10th Nov. 2020. There was no pandemic in 2019 when Joanna Burke was gravely ill in hospital. The DJ denied the Burkes motion to amend the complaint with known errors due to the fact Joanna was in hospital and the concern was great from the medical staff. John had to rush to hand deliver the complaint to the court while his wife was in
12 See for example, our Initial Brief in case 20-20209, footnote 8 (in part) “When the decisions of courts of justice are made, they must, it is true, be executed; but the power of executing them is ministerial, not judicial.” 1 JAMES WILSON, Of Government (1790). As such, there is no judicial immunity. See; Joseph Romagnoli, What Constitutes a Judicial Act for Purposes of Judicial Immunity?, 53 Fordham L. Rev. 1503 (1985). “Although executive, administrative, legislative, or ministerial acts may be official functions of a judge, they are not judicial acts under a correct reading of the Stump definition. Thus, the doctrine of judicial immunity should not apply…”
13 The CJ’s dismissal and warning was – coincidentally, or not – shortly after a flurry of related filings; e.g. the order from the Court of Appeals for the Eleventh Circuit, Burke v. Ocwen et al (19-13015) on Monday, 2nd Nov. 2020 and our Friday 6th Nov. 2020 filing of our reply brief in the Burke v. Hopkins (20-20209) appeal before this court.
“What the court did was review the M&R prior to adopting and review the record evidence as part of its de novo review on the objected to legal conclusions, as it is required to do.” Cao v. BSI Fin. Servs., CIVIL ACTION H- 17-321, at *3 (S.D. Tex. Jan. 8, 2021)
hospital to meet the courts deadline (ECF motion (denied)). We provided affidavits14 along with hospital assessment records. This was insufficient for the DJ, who denied the motion and would also make sure the doctors and nurses – who were on the Burkes Expert Witness List15 – would never be called to testify. We also cited several of the DJ’s motions where he granted 60-day (e.g. See footnote 9, p.29) extensions for non-emergency driven motions. A life-threatening illness was rejected by the DJ. It shows qualifying bias16 and mandates a review under Breyer.
Summary extracts from the order disposing of the complaint against the DJ claim: “To the extent that these allegations relate directly to the merits of decisions or procedural rulings, they are subject to dismissal under 28 U.S.C. 352(b )(l)(A)(ii). In other respects, any assertions of “willful misconduct” or bias appear entirely derivative of the merits-related charges, but to the extent the allegations are separate17, they are wholly unsupported, and are therefore subject to dismissal under 28 U.S.C. § 352(b )(l)(A)(iii) as “lacking sufficient evidence to raise an inference that misconduct has occurred.””
For the CJ to infer our complaint is unsupported, lacks evidence, is merit-based, conclusory, frivolous and issue a warning violates the Judicial rules as well as in contradiction of Supreme court precedent and in conflict with ‘The Breyer Report’ standards.18
Conclusion
Our petition for review confirms the CJ excluded so much from our complaint it has become a tainted opinion. A detailed review shows she intentionally misstated our words19 and excluded our citations, including the Breyer standards of review, to allow the CJ to abuse her powers and dismiss our valid complaint. We are very honest and transparent retired elderly citizens who are discouraged by the federal and appellate court system in the United States of America as a vehicle
14 Case: 20-20209 Doc: 00515510276 Page: 17-34 Date Filed: 07/30/2020.
15 Our expert witnesses, including: Hon. Stephen Wm. Smith, Lawyers Connie Pfeiffer, Fatima Hassan Ali, Benjamin Siegel, Ben M. Harrington, Steve W. Berman and Doctors Edward L. Kuo, Khilan Pindoria, and Swapan Dubey. 16 The participation of a judge who has a substantial interest in the outcome of a case of which he knows at the time he participates necessarily imports a bias into the deliberative process. This deprives litigants of the assurance of impartiality that is the fundamental requirement of due process.” – Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 831 (1986). The DJ has been assigned to all cases in S.D. Tex. where we are a party e.g. no “blind draw” (See footnote 10 in original complaint; “[J]udges do not choose their cases, and litigants do not choose their judges. We all operate on a blind draw system. . .” McCuin v. Texas Power Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983).
17 We can only assume this vague statement is reference to the Breyer report.
18 See the Burkes complaint, footnotes 19, A-6 FAILURE TO INQUIRE ABOUT CLAIMS OF A JUDGE’S BIAS TOWARD A LITIGANT, p. 50 (Standard 3)., 21, A-4 FAILURE TO INVESTIGATE ADEQUATELY A COMPLAINT THAT A JUDGE ORDERED A TRANSCRIPT ALTERED p.48-49 (Standard 5). and 25 “that the judge ruled against the complainant…because the judge doesn’t like the complainant personally, is not merits-related.” 19 e.g. We wrote; “There is a worldwide plague, a Pandemic which has shut down most of the country and the world. There are ‘stay at home’ orders, especially for the elderly, like the 80+ year old Burkes. People are dying in thousands and the future death statistics look especially grim. Gov. Greg Abbott declared Texas a Disaster State. The Proclamation is signed on March 13, 2020.” [citing footnote 14] . CJ reworded and excluded the majority of our statement as follows; “The Burkes, who describe themselves as “80+ year[s] old…” An emergency order of the state is the question of law before the CJ and in a time of an alarming and killer pandemic – this is discounted – as though it’s a common flu? See; Texas State District Judge Ruben Reyes, age 56, died after being ill with COVID-19. (Dec. 13, 2020). It is a clear abuse of power and shows bias and can be legally defined as elder abuse.
for seeking the truth before an impartial and fair judge or jury. The opposite has borne to be true in our case(s).20 We have always disclosed all our civil action(s), judicial and lawyer (ethics) complaints21 in our appeals at this court (Hopkins and Ocwen) and nationwide. It is well documented – and we urge – should be viewed holistically as part of this petition for review. Outside of this state, we have been subjected to similar debased ‘wordsmithing and whiteouts’ of opinions, motions and orders in S.D. Fl District Court and the Court of Appeals for the Eleventh Circuit. If anyone is subject to a conspired attack and needs a “Threat Management Process”22 and protection, it should be provided to us in an effort to protect our good name and character – which has been increasingly emasculated by the third branch of government, the judiciary. We will continue to stand for democracy, access to justice and a fair and impartial judiciary.23
In Kirkland v. Dileo, 581 F. App’x 111, 7 (3d Cir. 2014), the court stated “ we must decide whether the Complaint set forth allegations that, taken as true, establish that the application of an exception to the doctrine of absolute judicial immunity is “above the speculative level”. They found that it did.24 As stated, the Burkes have 2 fully briefed and pending appeals before this court re the acts described herein by the DJ, MJ and pro se lawyer Mark Daniel Hopkins.
Here, this Judicial Council has an opportunity to correct not only a manifest injustice, but perversion of justice. It should do so and reverse the Chief Judges’ erroneous order and proceed with a special committee investigation.
Respectfully, Signed this day, 1st February, 2021.
20 “Today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” 12 The Works of Thomas Jefferson 137 (P. Ford ed. 1905).” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1677 (2015).
21 See; Joanna Burke v. Mark Daniel Hopkins 202002158; BODA Case No. 64426: “After reviewing your grievance as you originally filed it and no other information, the Board has determined that the conduct you described in the grievance does not violate the Texas Disciplinary Rules of Professional Conduct or is otherwise not actionable under the Texas Rules of Disciplinary Procedure.” This statement would later be reversed after we said: “BODA has just repealed Tex. Disciplinary Rules of Prof’l Conduct R. 8.03 (a) (at a minimum) and also overturned Texas Supreme Courts’ own precedent in Comm’n for Lawyer Discipline v. Mark Cantu (2019).”
22 See; Protecting Judicial Officials: Implementing a Threat Management Process, U.S. Department of Justice, Office of Justice Programs. Bureau of Justice Assistance (June 2006).
23 The Judicial Conduct and Disability Act (1980) (“the Act”) authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.” – See footnote 1 of our original complaint.
24 “The Kirklands appealed to the Union County Superior Court. Judge Moynihan reversed their convictions stating that the Kirklands’ trial before Judge DiLeo was a “perversion of justice.” ” Kirkland v. Dileo, 581 F. App’x 111, 5 (3d Cir. 2014).
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