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
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
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
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
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
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.