Appellate Circuit

Motion to Disqualify Judge David Hittner. What Would Supreme Court Justice Scalia Have Thought?

Motion to Disqualify Judge David Hittner: In short form, the current Hopkins case was prematurely ejected by Hittner due to his pervasive bias. It is also “extrajudicial” as he acted outwith the laws and the Proclamation of Gov. Abbott declaring the State of Texas a disaster, to deny the Burkes the right to a fair hearing for his own personal bias.

LIT COMMENTARY

The Burkes are partially relying upon the Supreme Courts and former Justice Antonin Scalia’s instructive opinion in Liteky, regarding how and when a judge is bias and in conjunction with extrajudicial sources and pervasive bias, when applicable. Whilst Scalia is pro-judge, even he agrees there has to be limits to that shield. The Burkes believe a pandemic proclamation (extrajudicial), combined with the pervasive bias shown by Hittner, are more than sufficient in this case to merit disqualification of Judge David Hittner…and LIT supports this view with the incriminating evidence in the video about Hittner’s relationship with Liberato.

MOTION TO DISQUALIFY JUDGE DAVID HITTNER

Section 455(a) of Title 28 of the United States Code requires a federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Liteky v. United States, 510 U.S. 540, 541 (1994). Plaintiffs Joanna & John Burke (“Burkes”), now formally request the disqualification of United States District Judge David Hittner from the above styled case.

COMPLAINT AGAINST JUDGE DAVID HITTNER (“Hittner’)

The Burkes emailed their formal complaint (due to COVID-19) to the Court of Appeals for the Fifth Circuit late on the afternoon of Friday, 27th March, 2020. A copy has been provided herein, EXHIBIT A. No acknowledgement nor response has been received from the 5th Circuit to date, but based on the Breyer report, it appears a 13-day response is normal in such complaints.

As a result of this filing, and essentially for the reasons stated in this complaint, it is logical that the Burkes hold the opinion Judge David Hittner is bias.[1] Any further motions which the Burkes wish to submit e.g. Fed. R. Civ. P. 59(e);  A motion to alter or amend a judgment, would once again arrive on the desk of Hittner and that prospect is untenable.[2]

Upon audit, the Burkes were able to discover 16 pages[3] of recusals by Hittner, per the website courtlistener.com. In the majority, it appears Hittner cherry-picks cases, for example, perhaps where he’s not confident on the law – as labor-related disputes topped his recusal  listings. Then there’s most likely stockholding recusals, e.g. BP and Wal-Mart. Then there’s family related recusals, e.g. Health and Pharma providers, due to perceived conflicts, as his wife is a doctor.

In amongst these recusals are the “questionable and belated recusals”. The cases in hand include Petrello v. Prucka (4:08-cv-01933), where Hittner did not initially recuse and where his co-author and friend of 20+ years Lynne Liberato[4], Partner at Haynes & Boone, LLP[5] was the plaintiffs’ counsel and at the trial in front of Hittner. This was a very big fee income case for both sides, and Petrello would end up picking up the hefty legal tab for his civil actions, amounting to millions of dollars. Hittner did eventually recuse himself, (See Doc. 250 of the Petrello docket) the reason(s) left as a secret per the court filings. This clearly proves Hittner cannot be relied upon to recuse himself when a case demands that he do so and where a computer-generated decision cannot be relied upon as it is a personal relationship he has with Ms Liberato. In other words, it requires manual election to recuse. He failed to do so on a timely basis and as a result, the Burkes argue, allowed the underlying case to go to trial purely for the benefit of Liberato’s firms’ fee income. It certainly could have been dismissed after the filings of the motion for judgment in law. This case warranted such a dismissal due to the [lack of tangible] arguments by the plaintiff and the state court decisions against his case before the federal court. However, Hittner used his judicial authority to allow six, that’s right six amended complaints to be filed by the plaintiff (unlike his actions in the Burke cases) and had also let the case go to trial, racking up excessive and unnecessary fees. Yet he jailed Allen Stanford for 110 years for financial fraud. A contradiction.

It’s unequivocal, Hittner is not an impartial Judge on the bench. He is bias and his lengthy service has allowed his self-serving, self-importance to affect his impartiality. His glaring personal contempt for the Burkes is profound.[6] Hittners’ response is to wield his judicial sword for his own spiteful gain and in contravention of the rule of law, due process clause of the fourteenth amendment[7] the constitution and justice. Hittners’ acts during a [inter]national plague, a pandemic, can only be described as “wartime crimes”. (See complaint, Exhibit A).

Then there was the case of Mosher v. Keanster (4:08-cv-02105), wherein Hittner dismissed the case with prejudice (according to the 5th Circuit’s review) for want of prosecution (“DWOP”).[8] It was reversed and remanded upon appeal by Mosher to the 5th Circuit who stated, in part, “There is no clear record of delay or contumacious conduct by the plaintiff.” See Mosher v. Keanster, 343 Fed. Appx. 994, 995 (5th Cir. 2009). Hittner held a telephonic conference with the parties and then immediately recused (Docs. 20/21). This case mirrors the type of responses by Hittner to filings by the Burkes, as outlined in the complaint before the 5th Circuit and indeed the pending appeal at the 5th Cir., in the case Burke v. Ocwen (19-20267) which was dismissed by Hittner and wherein in the Burkes maintain it was an “abuse of discretion” to do so. In short form, the current Hopkins case was prematurely ejected by Hittner due to his [“pervasive”] bias. It is also “extrajudicial”[9] as he acted outwith the laws and the Proclamation of Gov. Abbott declaring the State of Texas a disaster, to deny the Burkes the right to a fair hearing for his own personal bias.

CONCLUSION & PRAYER

Based on the above, the Burke’s motion to disqualify is merited. This court should grant the motion and Judge Hittner stand recused in this case.

RESPECTFULLY submitted this 2nd day of April 2020.

[1] Including but not limited to, [“pervasive”] Bias, denial of Due Process, Willful Misconduct, Prejudicial Misconduct and which was/is motivated by Bad Faith (“bias”).

[2] “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.” –  Jenevein v. Willing, 493 F.3d 551, 559 (5th Cir. 2007)

[3] See https://www.courtlistener.com/?type=r&q=hittner%20recusal&type=r&order_by=score%20desc&court=txsd

[4] See https://www.txs.uscourts.gov/page/lynne-liberato

[5] See https://www.haynesboone.com/people/l/liberato-lynne

[6] “It is wrong in theory, though it may not be too far off the mark as a practical matter, to suggest, as many opinions have, that “extrajudicial source” is the only basis for establishing disqualifying bias or prejudice. It is the only common basis, but not the exclusive one, since it is not the exclusive reason a predisposition can be wrongful or inappropriate. A favorable or unfavorable predisposition can also deserve to be characterized as “bias” or “prejudice” because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. (That explains what some courts have called the “pervasive bias” exception to the “extrajudicial source” doctrine. See, e.g., Davis v. Board of School Comm’rs of Mobile County, 517 F.2d 1044, 1051 (CA5 1975), cert. denied, 425 U.S. 944 (1976).) – Liteky v. United States, 510 U.S. 540, 551 (1994)

[7] Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)

[8] See Doc. 11 of the Mosher docket.

[9] “Held: Required recusal under § 455(a) is subject to the limitation that has come to be known as the “extrajudicial source” doctrine.” Liteky v. United States, 510 U.S. 540 (1994)

I declare under penalty of perjury that the foregoing is true and correct and the certificates that follow are also correct. (28 U.S.C. § 1746 – U.S. Code.)

/s/ Joanna Burke

______________________

Joanna Burke / State of Texas
Pro Se

I declare under penalty of perjury that the foregoing is true and correct and the certificates that follow are also correct. (28 U.S.C. § 1746 – U.S. Code.)

/s/ John Burke

_______________________

John Burke / State of Texas
Pro Se
46 Kingwood Greens Dr
Kingwood, Texas 77339
Phone Number: (281) 812-9591
Fax: (866) 705-0576
Email: kajongwe@gmail.com

COMPLAINT

John and Joanna Burke (“Burkes”) now file an official complaint[1] against Senior United States District Judge David Hittner, (“Hittner”) S.D. Tex.,[2] for his violation of the Burkes’ constitutional, civil and human rights in time of a [inter]national pandemic, including but not limited to, Bias, denial of Due Process, Willful Misconduct, Prejudicial Misconduct and which was/is motivated by Bad Faith (“bias”).[3] In short form, Hittner has denied the Burkes the right to a fair and impartial hearing and jury trial. In preparation, the Burkes have acquired and read IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980,  A REPORT TO THE CHIEF JUSTICE (2006) (“the Breyer Report”) and rely upon its content, “Standards” and findings in this judicial complaint.[4]

Background:

The Fifth Circuit and the Chief Judge (Owen) are very familiar with the Burkes and their situation so the summary will be concise, in conformity and without merit-based commentary.[5] Deutsche Bank (“Deutsche”) filed for foreclosure in 2011 and the case was filed in S.D. Tex. Hittner was appointed the District Judge with former Magistrate Judge Stephen Wm. Smith (“Smith”). In 2015, a no-evidence, no-witness bench trial with Smith presiding resulted in a win for the Burkes, dismissal for Deutsche.[6] This court reversed and remanded in 2015.[7] After further investigation, Smith rejected this courts’ decision and ruled for the Burkes for a second time in 2017. Deutsche appealed and this court reversed and rendered.[8] Hittner entered judgment immediately, without notice nor hearing provided to the Burkes. The Burkes in the interim had filed 2 State court cases against Ocwen Loan Servicing LLC[9] (“Ocwen”) and Hopkins Law, PLLC, Mark Daniel Hopkins and Shelley Luan Hopkins (“Hopkins”). Hopkins removed both cases to S.D. Tex. The courts’ “blind-draw”[10] resulted both cases being assigned to Hittner. The replacement Magistrate Judge, a position which was vacated by Smith’s departure (shortly after a scathing attack by Hopkins and this Circuit against him in the Deutsche [II] case), was assigned to former public defender, Peter Bray (“Bray”).[11] All parties consented to hearings before Bray. The Burkes complaint is triggered by recent events in Hopkins case.

Timeline:

There will be a separate complaint against Bray. The Burkes focus on the following timeline, relevant to the Burkes complaint against Hittner;

The Burkes objected (Doc.66) to Brays’ premature Memorandum and Recommendation (“M&R”)[12]. It is date-stamped 9th March by S.D. Tex.

The notice of this filing is 3 days later, on 12th PACER, however, is backdated to the 9th. Courtlistener.com shows March 12th,[13] in agreement with the Burkes email notice. There was ‘no good reason’ for this delay or back-dating, just as there was ‘no good reason’ for the lengthy delay in the Burkes receiving the doctored transcript/audio of the Sept., 10, 2019 conference (See Doc. 66).

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.[14]

Illegal debt collectors in the State of Texas, Hopkins file their response motion to the Burkes Objections to Bray’s M&R on March 16, 2020 (Doc. 67).

At around 2pm on March 17, 2020, Hopkins emailed[15] the Burkes regarding postponing the scheduled conference[16] with Hittner on March 19, 2020 in Houston S.D. Tex. The Burkes confirm they are unopposed. A court generated notice was issued that evening ‘canceling’ the conference with Hittner.

On March 18, Hittner signs an Order adopting Memorandum and Recommendations (Doc. 68) and dismissing the Burkes case against Hopkins, with prejudice. Judgment is also dated 18th but entered on 19th March (Doc. 69). His bias motives are clear and undisputed by his own acts in canceling the conference and issuing the judgment(s). It’s a rush to “Hittner Justice” to prevent any ‘delay’ in the case due to the pandemic and to ensure the Burkes’ do not ‘benefit’[17] from any delay. Hittner has sordidly exploited and abused his authority as a Judge for malicious and vindictive reasons and while in a time of chaos, which he sees as an opportunity to camouflage and execute his contemptible acts.[18]

Facts:

Due to Hittner’s bias[19], he (1) deprived the Burkes of their constitutional rights to a fair hearing (due process) which was scheduled for 3/19/2020 and which was 5 days after Gov. Abbott declared the State a disaster. It is clearly a violation of civil and human rights as to its premeditated timing, e.g. a pandemic.[20]  (2) When the M&R was objected to by the Burkes in their filing, they alleged that either Bray and/or the court ‘doctored’ and/or edited[21] the significantly delayed Transcript and Audio which the Burkes requested (on an expedited filing basis). The Burkes supplied affidavits confirming Bray shouting at John Burke and asking if he was a ‘criminal’, which had been excluded from the transcript and audio. Joanna Burke is hard of hearing.[22] Unlike the first time Bray met the Burkes in a busy Scheduling conference with many attorneys present, in this ‘private’ conference (9/10/2019), Bray refused to ‘mic up’ and the Burkes complained Hopkins was answering in a soft spoken voice intentionally so she could not clearly hear his responses. (3) This outburst by Bray was as a result of the Burkes, a Court Reporter, and Clerk all witnessing Mark Hopkins at this Sept. conference twice posing premeditated lies to the court, claiming the Burkes’ wanted certain judges to be shot. He later admitted to his lies.[23] The Burkes were waiting for Bray and/or Hittner to start formal perjury, contempt or other disciplinary action against Hopkins.[24] That never happened due to Hittners’ bias[25] against the Burkes as stated herein. (4) The M&R was premature when the Burkes have a related case pending with this court, namely Ocwen, (#19-20067). This is similar to the 5th Circuit case in All American,[26] where Judges’ Higginbotham and Higginson, pushed through a premature opinion. The en banc court set aside for a rehearing to be scheduled at some time in the future, due to Coronavirus.[27] Likewise, this M&R would never have been issued by competent judges, but for bias by Hittner[28] (and Bray). (5) Hittner has shown a consistent pattern of bias since the departure of Smith, e.g., he has canceled hearings to intentionally deprive the Burkes their right to a fair hearing (e.g. conference above), refused an extension of time to allow the Burkes to amend their complaint (Doc. 26) when Joanna Burke was gravely ill in hospital (per Doc. 24) and there was known errors and omissions in the first amended complaint[29]. John Burke drove from Kingwood to the court to hand-deliver the documents (Doc. 27) as Hittner had denied ECF filing (Doc. 21) and while Joanna Burke was in hospital on her own.

Immorality from Hittners’ Bench:

Hittners’ spouse is a doctor. Yes, his actions are his own, but these acts can only be described as heinous when targeted towards sick, disabled and elderly citizens before the court and in defiance of a pandemic.  Hittner violates the Judicial oath, ethics and canons.[30] His actions are so uncivilized and unlawful, they are impeachable.[31]  He deserves to be stripped from wearing a black robe, as would happen if he was dishonored by the Airborne for wartime crimes.  Hittners’ dishonorable acts squarely meet the criteria.

Summary:

The Burkes civilly request the Chief Judge, a known Christian and Church leader, appoint the Special Committee (See Act, Section 353(c)) to determine and ratify not only the very serious allegations in this complaint, which are true,[32] but to allow for referral to Congress for impeachment of Hittner (See Act, Section 354 ).

Prayer:

In a time where the country is in a state of emergency, Hittner only sees as an opportunity for evil acts – directed towards the Burkes. The Burkes complaint against Hittner should be affirmed. Any and all further relief which can and should be granted is requested, e.g. per Act, Section 354.

Stay safe and God bless,
Submitted this day, Friday, March 27, 2020

by email to pro_se@ ca5.uscourts.gov
(per website and due to ‘stay at home’ order)

s/ Joanna Burke
Joanna Burke
kajongwe@gmail.com
46 Kingwood Greens Dr.,
Kingwood, TX, 77339

s/ John Burke
John Burke
alsation123@gmail.com
46 Kingwood Greens Dr.,
Kingwood, TX, 77339

[1] 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.”

[2] See https://www.txs.uscourts.gov/page/united-states-district-judge-david-hittner

[3] See Fletcher v. Commission on Judicial Performance, 19 Cal.4th 865 (Cal. 1998)

[4] Disclaimer; the Burkes note this court and Chief Judge will review the docket in the Hopkins case to be in compliance with complaint procedures as per the Act.

[5] For example, dismissal under 28 U.S.C. § 352(b)(l)(A)(i), (ii) or (iii).

[6] Deutsche Bank Nat’l Trust Co. v. Burke, 92 F. Supp. 3d 601 (S.D. Tex. 2015).

[7] Deutsche Bank Nat’l Tr. Co. v. Burke, No. 15-20201 (5th Cir. June 9, 2016).

[8] Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548 (5th Cir. Sept. 5, 2018) (unpub.), Deutsche Bank Nat’l Tr. Co. v. Burke, No. 18-20026, (5th Cir. Sept. 10, 2018) (pub.).

[9] Burke v. Ocwen Loan Servicing, LLC, Civil Action H-18-4544 (S.D. Tex., Dec. 2018).

[10] “[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).

[11] See https://www.txs.uscourts.gov/page/united-states-magistrate-judge-peter-bray

[12] Burke v. Hopkins, Civil Action H-18-4543 (S.D. Tex. Feb. 24, 2020).

[13] See Doc. 66,  https://www.courtlistener.com/docket/8385194/burke-v-hopkins/

[14] See https://gov.texas.gov/news/post/governor-abbott-declares-state-of-disaster-in-texas-due-to-covid-19

[15] Exhibit A.

[16] Pretrial conference noticed on Feb. 11, 2020. (Doc. 64) for a hearing on March 19, 2020, which coincidentally timed perfectly after M&R, time for Burkes objections and Hopkins response on 16 March, 2020. Thus, this conference 3 days later would then allow for Hittners’ planned hearing and quick dismissal. Alas, Coronavirus interfered with Hittners’ original and premeditated plan.

[17] For example, delay any future legal eviction from the residence based on order of foreclosure.

[18] 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).

[19] See the Breyer Report A-6 FAILURE TO INQUIRE ABOUT CLAIMS OF A JUDGE’S BIAS TOWARD A LITIGANT, p. 50 (Standard 3).

[20] See Cain v. White, 937 F.3d 446, 451 (5th Cir. 2019)

[21] See the Breyer Report; A-4   FAILURE TO INVESTIGATE ADEQUATELY A COMPLAINT THAT A JUDGE ORDERED A TRANSCRIPT ALTERED p.48-49 (Standard 5).

[22] Disclaimer; But when Judge Bray shouts and gesticulates at her husband asking “Are you a criminal”, that was loud enough for her to hear clearly.  Textual interpretation: She’s hard of hearing rather than deaf.

[23] Doc 60, p3, footnote 2, Oct 7, 2019

[24] See Doc 66, and In re Moity,320 Fed. Appx. 244, 248 (5th Cir., 2009) and Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 451 F. App’x 324, 8 (5th Cir. 2011).

[25] See the Breyer report, “that the judge ruled against the complainant…because the judge doesn’t like the complainant personally, is not merits-related.” p.54.

[26] Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302 (5th Cir. Mar. 3, 2020)

[27] See http://www.ca5.uscourts.gov/opinions/pub/18/18-60302-CV1.pdf

[28] Cain v. White, 937 F.3d 446, 452 (5th Cir. 2019).

[29] Due to a lack of time for reasons stated and a printer that was misbehaving on deadline day.

[30] See Dorsey v. U.S. Dep’t of Educ., 528 B.R. 137, 142 n. 6 (E.D. La. 2015) and  https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges

[31] See Act, Section 354.

[32] The Act requires the chief judge of a circuit to consider each complaint and, where appropriate, to appoint a special committee of judges to investigate further and to recommend that the circuit judicial council assess discipline where warranted.

Motion to Disqualify Judge David Hittner. What Would Supreme Court Justice Scalia Have Thought?
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Most Popular

Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

Donate to LawsInTexas. Make a Difference.

Subscribe to Our Newsletter

We keep your data private and share your data only with third parties that make this service possible. See our Privacy Policy for more information.

© 2020 Laws In Texas. | All Rights Reserved.

To Top