UPDATED; On Thursday, 19th December, 2019, the Fifth Circuit 3-Panel issued this Order Denying Homeowners Relief
December 19, 2019
David J. Bradley, Clerk of Court
No. 19-20267 JOANNA BURKE; JOHN BURKE,
Plaintiffs – Appellants
OCWEN LOAN SERVICING, L.L.C.,
Defendant – Appellee
Appeal from the United States District Court for the Southern District of Texas
A member of this panel previously denied appellants’ opposed motion for reconsideration of appellants’ opposed motion to stay the case until the matter of the CFPB’s Constitutionality is answered by the United States Supreme Court and appellants’ opposed alternative request to stay the case for period of no less than nine (9) months. The panel has considered appellants’ opposed motion for reconsideration. IT IS ORDERED that the motion is DENIED.
On Monday, 28th October, the Fifth Circuit Denied the Homeowners Motion to Stay
MOTION TO STAY DENIED
Monday, 28th October, 2019 – The first opportunity after Florida’s denial late afternoon on Friday, the ‘Sister’ court – the 5th Circuit – rushed it’s own DENIAL out on Monday morning via Judge “No Free Houses” Higginbotham.
IT IS ORDERED that appellants’ opposed motion to stay case in Fifth Circuit awaiting a final rule or adjudication on the constitutional challenges is
DENIED. (STATE AND FEDERAL CONSTITUTIONAL CHALLENGES)
IT IS FURTHER ORDERED that appellants’ opposed motion to suspend briefing is DENIED. (SELIA LAW CASE MOTION)
RECENT HISTORY OF MOTIONS AND BRIEFS FILED BY THE APPELLANTS
Motion to Supplement the Pleadings filed on Sunday, 27th October, 2019
This motion took 3 days to prepare and it was denied by a Clerk at the 5th by lunchtime on Monday by the Fifth Circuit.
Deputy Clerk; Dawn M. Shulin – Denied within hours of filing.
Appellants’ opposed motion to supplement the record on appeal with a pleading and exhibits has been DENIED.
MEANWHILE ON November 12, 2019, a very interesting Order from the 5th Circuit, on Remand from the US Supreme Court and with Higginbotham and Haynes both on the 3-panel…
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee
MAURICE LAMONT DAVIS; ANDRE LEVON GLOVER,
Defendants – Appellants
Appeals from the United States District Court for the Northern District of Texas
USDC No. 3:15-CR-94-2 USDC No. 3:15-CR-94-1
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges. PER CURIAM:*
Appellants Andre Levon Glover and Maurice Lamont Davis were convicted for a series of robberies committed in June 2014 at Murphy Oil locations in the Dallas area. Both Appellants were convicted under the Hobbs Act, 18 U.S.C. § 1951(a), for conspiracy to interfere with and aiding and abetting interference with commerce by robbery.1
They were also convicted on firearms charges under 18 U.S.C. § 924(c).2
Davis alone was convicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 924(a)(2).
In their original appeals, we affirmed the district court’s judgment in full. United States v. Davis, 677 F. App’x 933, 935–36 (5th Cir. 2017) (per curiam).
The Appellants petitioned the Supreme Court for certiorari. Following its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Court remanded this case to our court “for further consideration in light of” Dimaya. Davis v. United States, 138 S. Ct. 1979, 1979–80 (2018) (mem.).
On remand, we affirmed the Appellants’ convictions and sentences on all counts save Count Two. United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018).
Finding the residual clause of 18 U.S.C. § 924(c) unconstitutionally vague in light of Dimaya, we vacated the Appellants’ convictions and sentences on Count Two and remanded for entry of a revised judgment. Id.
While the Appellants’ petitions for rehearing were pending, the United States petitioned for certiorari on the issue of the residual clause in this context, which the Supreme Court granted.
We stayed proceedings on the petitions for rehearing pending the Court’s decision.
The Court agreed that § 924(c)’s residual clause was unconstitutionally vague, so it affirmed our decision on the Count Two convictions. Because we had stayed the petition for rehearing pending the Court’s decision, it vacated in part and remanded the case to our court to address in the first instance the petition for rehearing which included the issue of whether we should order a resentencing. United States v. Davis, 139 S. Ct. 2319, 2336 (2019).
To summarize, we continue to affirm all convictions save Count Two which we vacate.
We therefore remand for entry of a revised judgment of conviction consistent with this opinion.
We deny the petition for rehearing as to the convictions.
Turning to the question of resentencing, we grant the petition for rehearing in part and vacate the Appellants’ sentences in full, remanding their sentences to the district court for resentencing in full.3
See Pepper v. United States, 562 U.S. 476, 507 (2011) (“Because a district court’s original sentencing intent may be undermined by altering one portion of the calculus, an appellate court when reversing one part of a defendant’s sentence may vacate the entire sentence . . . .” (citation and internal quotation marks omitted)). We do not opine on how the district court should resentence the Appellants.
The judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for entry of a revised judgment and for resentencing.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 Glover was convicted under the Hobbs Act on Counts One, Three, Four, Five, and Six; Davis was convicted on Counts One, Five, and Six.
2 These were Counts Two and Seven, which charged the Appellants with using, carrying, and brandishing firearms during and in relation to, and possessing and brandishing firearms in furtherance of, a crime of violence. Glover’s conviction on Count Seven also included aiding and abetting the brandishing of firearms. Our original ruling that the conviction on Count Seven remains valid following Dimaya because it involved a crime of violence under the elements clause which was not altered. See 903 F.3d at 484-85
APPELLANTS MOTION FOR RECONSIDERATION RE CONSTITUTIONAL CHALLENGES
Nov. 10, 2019 (filed with 5th Circuit)
Appellants, Joanna Burke and John Burke (“Burkes”), now file a Motion for reconsideration [FED. R. APP. P. 27.2] of single Circuit Judge Patrick Higginbothams’ Order dated Monday, 28th October, 2019. In support thereof: The Order signed by Judge Higginbotham; “IT IS ORDERED that appellants’ opposed motion to stay case in Fifth Circuit awaiting a final rule or adjudication on the constitutional challenges is DENIED.”
Imaginative and Innovative Steps: Questionably, this Court previously advised the Eleventh Circuit; “The Fifth Circuit has urged district courts to take “imaginative and innovative” steps in dealing with § 1983 [constitutional] cases.” – Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
Nomination to become a Fifth Circuit Judge: Judge Higginbotham’s nomination, due to the era in which he was appointed, is much less detailed than the questions presented in modern times by Senators when ‘interviewing by email’ the candidates for the position(s) on the Federal Courts.
For example, the nomination of Judge James ‘Jim’ Ho is preceded by Questions for the Record (“QFR”) wherein there is a templated set of questions which inevitably but most importantly, address the very same subject matter discussed herein, namely the Constitution.
The word “Constitution” is mentioned 51 times in the QFR, highlighting the importance of the Constitution when appointing a judge to the Court of Appeals for the Fifth Circuit. (and in the same confirmation hearing, on Nov. 15, 2017, the QFR for Judge Don Willett, the word “Constitution” was raised 76 times).
A theme of the answers to the questions in Judge Ho and indeed all of the fellow judges appointed which the Burkes’ have perused, provide the same answer(s), e.g.
“With respect to constitutional interpretation, lower court judges must follow U.S. Supreme Court precedent.” And “Lower courts do not have the authority to depart from Supreme Court precedent.”
Turning to this Courts recent ruling regarding the FHFA being “unconstitutional’, this confirms Judge Higginbothams’ Order not only contradicts the precedent of the Supreme Court but this Courts’ own ‘binding precedent’.
In other words, the Burkes’ motion should have been granted for due process and justice to be served when there is a matter of life, property and liberty at stake and the entire Circuit and Supreme Court are considering the Constitutional and indeed legislative matters the Burkes have raised in their motion(s).
Judge Recusal: The Order was signed by single Judge Patrick Higginbotham, who should have automatically recused himself from this case. The Burkes’ mentioned the newly appointed judges in part, to refer to the following;
In relation to Judge Higginbotham’s nomination, he received a reference from Senator Lloyd Bentsen which is not supported by the remarks made by Judge Higginbotham in Reinagel [discussed below].
His bias and discriminatory words as recorded in oral argument could not possibly be interpreted or be perceived to “be a model for other judges”.
Confirmation of Federal Judges, 97th Congress, Second Session, Serial No. J-97-52, Part 4
Judge Patrick Higginbotham:
“An impartial judiciary, while a protean term, translates here as the state’s interest in achieving a courtroom that at least on entry of its robed judge becomes a neutral and disinterested temple, in appearance and fact – an institution of integrity, the essential and cementing force of the rule of law. That this interest is compelling cannot be gainsaid.”
- Before HIGGINBOTHAM, WIENER and CLEMENT, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge for the panel in Jenevein v. Willing, 493 F.3d 551 (5th Cir., 2007)
First, the Burkes address the fact biased Judge Higginbotham signed the Order. While this court may claim random assignment, there is a duty of judges to recuse themselves, even without an inkling of bias in the eyes of the judge and as SCOTUS has recently reaffirmed in Rippo; It certainly cannot be claimed by Judge Higginbotham that he falls outside this ‘bias’ standard.
“Ain’t no free lunch and there sure ain’t no free house” (laughing)… (Oral Audio recording: quote begins at 36.25 mins +)
In reaching this conclusion, the Burkes first remind this court of their personal interest in; (i) Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548 (5th Cir. Sep. 5, 2018) and Deutsche Bank Nat’l Tr. Co. v. Burke, No. 15-20201 (5th Cir. 2016) and; (ii) Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220 (5th Cir. 2013), the En Banc Order authored by Judge Higginbotham; and (iii) the
Burkes’ judicial council complaints about the 3-panel in Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548 (5th Cir. Sep. 5, 2018) and the subsequent Order of denial of reconsideration by the Appellate Review panel, as signed on March 29, 2019 by newly appointed Chief Judge R. Priscilla Owen. In this order the Burkes’ stated;
“For example, Judge Higginbothams’ oral statements [‘no free house(s)’] in Reinagel v Deutsche Bank, which Graves sat on and agreed with the Opinion, rendering foreclosure in favor of the Bank.”
“Absence of Finality” Bias: Secondly, the Burkes raise another alarming statement from Judge Higginbothams’ confirmation;
Confirmation of Federal Judges, 97th Congress, Second Session, Serial No. J-97-52, Part 4
Panel Discrimination: The Burkes reference the parting sentence in this Courts Opinion in Deutsche Bank v. Burke, Sept. 5, 2018, #18-20026, wherein Judge Catharina Haynes for the panel stated;
“Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”
Judge Higginbotham’s discrimination in his statements regarding ‘absence of finality’ raises further question as to the ability of Judge Higginbotham to follow the Judicial Oath and the Constitution.
Conclusion: The Burkes requests this Court grants the Burkes motion regarding the Constitutional Questions/Challenges. The Burkes would remind this court is inferior to the US Supreme Court and they should not be defied.
Ocwen’s abuses and $3 BILLION dollars in fines have been well documented since the Great Recession, the people and the press will no doubt be highly concerned that their citizens are not being afforded access to courts, justice, liberty and due process per the Constitution of the United States – should this Court refuse the Burkes “Constitutional Challenges” motion upon reconsideration of a single judge’s Order.
 Collins v. Mnuchin, No. 17-20364 (5th Cir. Sep. 6, 2019)
 See SEC v. Team Resources Incorporated, et al (5th Nov. 2019) “Nonetheless, “we have traditionally held that even when the Supreme Court has granted certiorari in a relevant case, we will continue to follow binding precedent.” United States v. Islas-Saucedo, 903 F.3d 512, 521 (5th Cir. 2018) (citing Wicker v. McCotter, 798 F.2d 155, 158 (5th Cir. 1986)). Collins v. Mnuchin is “binding precedent” as a published opinion.
 Rippo v. Baker, 137 S. Ct. 905 (2017).
 See Burkes judicial complaint “Or the Priscilla Owen question in Diaz v Deutsche Bank, where she stated she’d seen at least 50 complaints by homeowners who had mortgage payments returned without explanation, yet Deutsche Bank prevailed in this case she reviewed.”
 Article III, Section 1, of the Constitution.
 “A contrary rule would permit judges to “substitute their own pleasure” for the law.” –Gamble v. United States, 139 S. Ct. 1960 (2019).