The Eight Balls of Fire Relied Upon to Transfer Venue the Hell Outta Texas

The Court of Appeals for the Fifth Circuit has processed the recently widowed, elder Appellant’s appeal, assigned an appellate case number and responded affirmatively to the Appellant’s request to file electronically and receive email notifications in this case.

All this, stemming from the lower court case cited above, and as a direct result of the Order of the lower court on February 3, 2023 (Doc. no. 61), refusing to reconsider the dismissal of the Appellant’s lawsuit.

For the following reasons, Appellant, Joanna Burke, requests this appeal be transferred to the Court of Appeals for the Eighth Circuit in the “interests of justice”.

THE EIGHT REASONS

By way of background, as a direct result of the lower court’s final Order; (i) February 3, 2023 “Order on Motion to Alter Judgment AND Order on Motion to Vacate”, in response to prior filings and Orders, namely; (ii) 51“MOTION to Continue Initial Pretrial and Scheduling Conference by Joanna Burke dated Aug. 29, filed Aug. 31, 2022” and (iii) the Court’s Order, Doc. No. 50, “ORDER DENYING 17 MOTION to Declare Plaintiffs as Vexatious Litigants and Brief in Support, GRANTING 18 Motion for Judgment; GRANTING 19 Motion for Judgment; denying as moot 41 MOTION For Zoom Hearing; denying as moot 42 Motion for Zoom Hearing Regarding Judgement. Signed by Judge Alfred H Bennett, Aug. 29, 2022” and (iv) “53 MOTION to Vacate 50 Order by Joanna Burke, docketed Sep. 12, 2022” and (v)“54 Alter Judgment, docket date Sep 25, 2022” and (vi) “55 Notice of Appeal docket date Sept 25, 2022” and (vii) “58 Response in Opposition to Motion, Oct 7, 2022” and (viii) “59 Reply in Support of Motion Oct 8, 2022”, and requests the court take judicial notice of the same when considering this motion. A short summary of each of the “Eight Reasons” is provided below, to aid in the review of this motion;

Legal Err #1: “Premature Motions for Judgment On the Pleadings Have Been Spuriously Relied Upon by this Court” (Explaining this is a lawsuit against the Fifth Circuit, aka “the judicial machinery” and not opposing parties. The decision was a question of law (for the court), and as such, relying upon motions including Judgment on the Pleadings to decide the case was legal err, as opposing counsel admitted they were not party to the events in question at the appeal court, namely the impersonation and fraud by the experienced and tenured Fifth Circuit Clerk Christina Gardner);

Legal Err #2: “Judge Bennett’s Sua Sponte Order Violates 10-Day Notice Period and Conflicts with Prior Granted Medical Continuance on Constitutional Grounds” (Expands on the failure by Judge Bennett to provide Plaintiff(s) (Appellant) a 10-day notice period and is inconsistent with prior controlling laws and orders.);

Legal Err #3: “The Analysis for Attacking the Judgment is Legally Flawed, Blanks the Majority of Plaintiffs’ Complaint, Response and Legal Citations, Invalidating the Courts Restricted and Biased Conclusions” (Provides an in-depth review of the main arguments regarding the void judgment(s), and focuses on the fact if you are a judge and you exclude all the key arguments of Plaintiff(s) (Appellant) when summarizing your order, it is wholly unreliable because it is a whitewashed and dishonorably manipulated order);

Legal Err #4: “Based on the Court’s Own [erroneous] Conclusions and Order, it Lacks Jurisdiction. As such, the Court Should Have Dismissed the Case Without Prejudice” (Reviewing the error laden Order by Judge Bennett, including his failure to address jurisdiction. Also, it addresses the Sinesterra case citation which conflicts with the findings and ruling of his own Order.);

Legal Err #5: “The Background and Conclusions Pertaining to Plaintiffs’ Motion to Correct is Another Whiteout”; (Discussing the arguments raised regarding the fraud by Clerk Christina Gardner and related events at the Fifth Circuit, blanked in the Order by the lower court);

Legal Err #6: “The Order Failed to Acknowledge or Address Plaintiffs Complaint re Fourth, Fifth and Due Process” (Blanking constitutional arguments; In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), former Chief Justice of the United States, William Rehnquist, on the role of judges in upholding the Constitution: “The preservation of liberty depends on judicial independence and the faithful application of the Constitution, even in cases where the outcome is unpopular or controversial.”);

Legal Err #7: “The Order re “Vexatious Litigants” is Shambolic”; (A comprehensive review of this section of the Order was undertaken in light of the horrendous inaccuracies and inconsistencies in the Order, which results in speculative and dangerous threats against the Burkes’ which would unlawfully restrict access to courts);

Legal Err #8: “Judge Bennett is Acting Maliciously and Corruptly, but is too Biased to be Constitutionally Tolerable in this Lawsuit to Claim Judicial Immunity” (Providing irrefutable facts about Judge Bennett’s constitutionally intolerable bias pertaining to this lawsuit “against the judicial machinery itself”,  and case law confirming the judgment should not be enforced because equity will not enforce judgments procured by fraud.”).

28 U.S. CODE § 1631

28 U.S. Code § 1631 allows for the transfer of a case from a federal court lacking jurisdiction to another federal court where the case could have been brought, “in the interest of justice”. 28 U.S. Code § 1631 applies to all federal courts, including the Court of Appeals for the Fifth Circuit, which hears appeals from federal district courts in Louisiana, Texas, and Mississippi.

See; Franco v. Mabe Trucking Co., 991 F.3d 616 (5th Cir. 2021)( Holding that “the plain text of § 1631 indicates that it permits a district court to transfer an action when it lacks subject-matter jurisdiction, personal jurisdiction, or both.”); Mobley v. C.I.R, 532 F.3d 491 (6th Cir. 2008) (Detailed analysis of §1631 with reference and explanation of 610, concluding: “The legislative history of § 1631, we recognize, says that the statute “is broadly drafted to permit transfer between any two federal courts,” S. Rep. No. 97-275, at 11 (1981), reprinted in 1982 U.S.C.C.A.N. 11, 21 (emphasis added)”, and which includes appellate courts).

THE LACK OF SUBJECT-MATTER JURISDICTION AND “IN THE INTEREST OF JUSTICE” CHECKBOXES ARE TICKED

Appellant ascribes the Court of Appeals for the Fifth Circuit cannot assert subject matter jurisdiction in this case. The Fifth Circuit lacks jurisdiction to consider any issues related to the prior judgment in this new case on appeal as Appellant maintains when the Clerk filed a fraudulent motion which the 3-Panel relied upon and issued the judgment(s) and mandate(s) to the lower court, it was a void judgment.  In short, Appellant maintains this appellate court lacked subject matter jurisdiction to issue the prior judgment(s) and as such is void for lack of jurisdiction.

DOES LACK OF JURISDICTION DEMAND TRANSFER OR DISMISSAL?

That question is answered in Britell v. U.S., 318 F.3d 70, 73 (1st Cir. 2003) (“Congress’s use of the phrase “shall . . . transfer” in section 1631 persuasively indicates that transfer, rather than dismissal, is the option of choice. The legislative history likewise points to a presumption in favor of transfer.”).

Furthermore, as “the court must examine the complete record” the facts there can be mirrored in this appeal – Britell v. U.S., 318 F.3d 70, 75 (1st Cir. 2003) (“Our examination of the record furnishes no compelling rebuttal to this presumption. Despite Britell’s insinuations to the contrary, we have no reason to believe that the government acted in bad faith. It had nothing to gain — and much to lose — by filing its notice of appeal in the wrong court. Moreover, the government exercised due diligence once it discovered its error. Finally, Britell will suffer only incidental inconvenience from a transfer — the need for refiling her brief and the frustration of waiting a few more months before the litigation is resolved. Inconvenience of this sort simply does not amount to the kind of prejudice that would justify the outright dismissal of an action or appeal.”).

ARGUMENT

Based on past experience including erroneous decisions and unconstitutional threats against elder, law-abiding citizens, it is most probable Appellant will suffer more, even greater harm from this court by the filing of this motion. Despite this extreme risk to her life, property and liberty, Appellant now asserts her constitutional rights to an independent and fair tribunal, including an appeal before an impartial venue of Judges, which would exclude this Circuit (5^th Cir.) and the “sister” Court of Appeals for the Eleventh Circuit (11^th Cir.).

In Williams v. Pennsylvania stated at 136 S.Ct. at 1909-1910 it was said; “The Court holds that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote. The Court has little trouble concluding that a due process violation arising from the participation of an interested judge is a defect ‘not amenable’ to harmless-error review, regardless of whether the judge’s vote was dispositive.”

This statement refers to the legal concept of “structural error” in the context of a judge’s failure to recuse themselves from a case. Structural error is a type of error that affects the entire trial process, rather than just a specific aspect of it, and is considered so severe that it undermines the fairness and integrity of the trial itself.

When a judge fails to recuse themselves from a case in which they have a conflict of interest or some other reason that would make it difficult for them to be impartial, it is considered unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment, which requires a fair and impartial tribunal. The failure to recuse in such circumstances can be considered a structural error because it affects the fundamental fairness of the trial process, regardless of whether the judge in question actually cast a deciding vote or not.

In other words, even if the judge did not ultimately make the final decision in the case, the fact that they participated in the trial or appeal in a way that violated the defendant’s right to a fair trial can be considered a structural error that undermines the entire trial or appellate process. This is because the presence of a biased judge (or judges in an appeal) can influence the entire trial, from pretrial motions and evidentiary rulings to jury selection and the ultimate verdict.

In the lower court case, the judge dismissed the case without a hearing. The Fifth and Fourteenth Amendments to the U.S. Constitution contain due process clauses that provide individuals with certain procedural protections when their life, liberty, or property is at stake. These protections include the right to notice and an opportunity to be heard before the government can deprive them of their rights or property.

Whilst Judge Bennett argues that a hearing was not required, peculiarly citing to Reliance Insurance v. The Louisiana Land & Exploration Co., 110 F.3d 253 (5th Cir. 1997), an opinion authored by Judge Patrick Higginbotham, which is a major issue discussed further on in this motion;

“Whatever the import of Mr. Sherman’s testimony, the district court did not abuse its discretion when it denied Reliance’s request to supplement its expert report. Fed.R.Civ.P. 16(b) allows a scheduling modification only for good cause.”

This case never reached the scheduling order – it never even reached the initial scheduling conference. Considering the facts, including the Turnage case referenced in support, which describes a two-year discovery delay, confirms this case citation is bizarre and inapposite at best to the case at hand.

In the alternative, Appellant anticipates an appellate response that a single, isolated due process violation does not rise to the level of a structural error, or for that matter a structural constitutional error, Appellant avers it remains a serious constitutional and legal issue which ultimately impacted the fairness and integrity of the trial process, in part, for the “eight reasons” cited herein.

Supreme Court Justice Clarence Thomas agrees:

“Rules not only provide private parties with notice (emphasis added), but also limit judicial discretion by narrowing the ability of judges in the future to alter the law to fit their policy preferences.”

– Justice Clarence Thomas, ‘Be Not Afraid’ speech (2001), aei.org.

In context, the content of the lawsuit itself, which was filed in the Southern District Federal Court, Houston Division, was a direct response to the preceding appeals at this court, and where Appellant(s) claimed that the judgment(s) and mandate(s) issued in the consolidated appeal are void.

In short, the federal district court lawsuit, now on appeal at the Fifth Circuit, was directed “at the judicial machinery itself” and as that includes this court, it is a clear conflict of interest, which “in the interest of justice” commands a transfer of venue.

As Justice Brennan wrote in his Lavoie concurrence,

‘The description of an opinion as being ‘for the court’ connotes more than merely that the opinion has been joined by a majority of the participating judges. It reflects the fact that these judges have exchanged ideas and arguments in deciding the case. It reflects the collective process of deliberation which shapes the court’s perception of which issues must be addressed and, more importantly, how they must be addressed. And, while the influence of any single participant in this process can never be measured with precision, experience teaches us that each member’s involvement plays a part in shaping the court’s ultimate disposition.’

– Williams v. Pennsylvania, 136 S. Ct. 1899, 1909 (2016).

In Appellant’s case before Judge Bennett, Appellant provided her fact-based and supported reasons why the judge should self-recuse.

It should be noted, Appellant did not file any complaint for fear of reprisal and retaliation by the judiciary, based on past orders and threats therein.

Despite the solid basis for her reasoning as to why Judge Bennett should recuse, he purposely failed to do so, and would ultimately issue disingenuous Orders to dismiss the Appellant’s lawsuit.

Plaintiff avers this can be attributed to the over-broad interpretation of judicial immunity, as cited by (former) Chief Judge of the Southern District, Lee Rosenthal in Morello v. The Texas Supreme Court of Texas (4:22-cv-02666), Aug 9, 2022;

“Judicial immunity is not overcome by allegation of bad faith or malice and ‘applies even when the judge is accused of acting maliciously and corruptly.’”

and;

“And “[e]very court to address the [issue] . . . has readily concluded that a refusal or failure of a judge to recuse himself in a case which he otherwise has jurisdiction to adjudicate is clearly a judicial action for which is entitled to absolute immunity from suit for damages.”.

The fact a Chief Judge was eager to ink this into a Court Order, as the leader of the court, is appalling, and it’s not her first time.

The Chief Judge also went beyond the law by misusing and misapplying the All Writs Act in  Lennie Jackson v. Wells Fargo N.A. Jackson (4:20-cv-01172)

(“Jackson is precluded from making further filings in this case without leave of court. The Clerk will not accept new filings submitted by Jackson in this case”;  “Wells Fargo’s motion to extend the temporary restraining order to a permanent injunction, (Docket Entry No. 217), is granted. Lennie Jackson is enjoined from filing any new lawsuit in any court, whether or state or federal (emphasis added), to challenge the ownership or the validity of the August 7, 2018 foreclosure sale of the real property located at 12631 Drifting Winds Drive, Houston, Texas 77044.”, signed on Feb. 23, 2021.).

These rulings are subsequently applied in Orders by judges, including fellow Houston Federal United States Court Judge Alfred Homer Bennett.

Lack of Integrity at the Court of Appeals for the Fifth Circuit and Failure to Abide by the Law

The “rule of law” is a fundamental principle in modern legal systems that requires all individuals and institutions to be subject to and abide by the law. As an essential aspect of this principle, judges play a crucial role in upholding the rule of law by following key elements that ensure their decisions are based on the law and legal precedent. Some of the key elements that judges should follow to uphold the rule of law include:

Independence: Judges must be independent of political and other undue influences that could impact their decision-making. This means they should not be influenced by personal biases or outside pressure when deciding cases.

Impartiality: Judges must be impartial and unbiased in their decision-making and must not show favoritism or prejudice towards any party or position. They should make decisions based solely on the facts and evidence presented in the case, and on the applicable law.

Fairness: Judges must ensure that all parties to a case are treated fairly, and that the proceedings are conducted in a manner that is fair and equitable to all parties.

Consistency: Judges must apply the law consistently, without showing favoritism to certain parties or allowing personal opinions to affect their decisions. This means that similar cases should be decided in a similar manner, based on the same legal principles and precedents.

Clarity: Judges must provide clear and reasoned explanations for their decisions, based on the applicable law and legal precedent. This allows parties to understand the reasoning behind the decision which helps to promote transparency and accountability in the judicial system.

Accountability: Judges must be accountable for their decisions. These must be subject to review and appeal to ensure that their decisions are based on the law and legal precedent, and not on personal biases or other undue influences.

Summary: By following these key elements, judges can help to ensure that their decisions are based on the rule of law, and that the legal system operates in a fair and impartial manner that promotes justice and equality for all. That is not the case in Texas federal and appellate court(s).

In support of this motion, the Appellant points to the facts, a few of the many instances which could proliferate this motion;

Specifically: This court has been untruthful in a past case where a Motion to Transfer Venue was requested.

See, Judge Patrick Higginbotham’s authored Opinion for the panel and this court in;

Thomas v. Livingston, No. 09-20860 Summary Calendar, at *1 (5th Cir. June 18, 2010)

(“Thomas moves for a change of venue, arguing that this court demonstrated bias against him in its characterization of his pleadings in the prior appeal. There is no provision for a change of appellate venue and the motion is denied.”(emphasis added)).

Consistency: Both former Magistrate Judge Stephen W. Smith and former Beck Redden Partner and counsel for the Burke’s Constance ‘Connie’ Pfeiffer (on remand) agreed on the record this court’s opinion was a manifest injustice to the Burkes’;

“That’s correct, Your Honor. And I DO want to make an important clarification, which is WE DON’T necessarily AGREE that the FIFTH CIRCUIT was correct in REVERSING this Court’s judgment.”

(Deutsche Bank Nat’l Tr. Co. v. Burke, CIVIL ACTION NO: H-11-1658, Doc. 126 (S.D. Tex. Feb 26, 2017)) and misapplied over 200 years of precedential laws and opinions pertaining to property law when reversing the Burke’s victory at a bench trial against (‘straw man’) Deutsche Bank National Trust Company.

Indeed, former Magistrate Judge Smith ruled not once, but twice in favor of the Burkes, his last opinion stated in finality in Deutsche Bank Nat’l Tr. Co. v. Burke, CIVIL ACTION NO: H-11-1658, at *13 (S.D. Tex. Dec. 21, 2017)

(“Accordingly, the court concludes that neither Deutsche Bank nor any mortgage servicer acting on its behalf has the right to foreclose on the Burkes’ Kingwood residence. The court further concludes that at no time has Deutsche Bank possessed any right, title, or interest in the Burkes’ note and security interest executed on May 21, 2007.”).

Clarity: Judge Bennett did not provide clarity in response to Appellant’s request for reconsideration, and after allowing the motion to percolate for several months, chose to issue a short Order, addressing only one of the eight challenges in isolation.

As Judge Andrew Oldham opined in Mitchell Law Firm, L.P. v. Bessie Jeanne Worthy Revocable Tr., 8 F.4th 417, 421 (5th Cir. 2021)

“Mitchell urges us to take the above-block-quoted language from Picco, strip it out of context, and read it in isolation. That’s never a good way to read or interpret anything.”

Fairness: The lower court did not follow the “blind draw” system of appointing 2 lawsuits filed by the Burkes’ in 2018. These state-filed cases were assigned to two separate judges and courtrooms, but after snap removal from state court to federal court, they both conspicuously landed before Judge David Hittner, who presided over the prior lawsuit filed by Deutsche Bank National Trust Company in 2011.

Impartiality: Both lower court cases would be consolidated on appeal and the two independent 3-panels would be disbanded and a hand-picked 3-panel, including the Chief Judge, Priscilla Owen, now Richman (Hecht) would preside along with Judges Davis (who sat on prior Burke appeal cases) and Dennis, see; Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021).

This is important because there was a pending Judicial complaint against Judge David Hittner, which would be decided in his favor by none other than the Chief Judge, and wherein she would provide a completely inaccurate timeline and summary of the complaint background, and then threaten the law abiding elder Burkes.

This Order was dated Nov. 8, 2021, just prior to her disbanding the 2 independent panels;

“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)

Clearly, outside observers, and as shown here, rulings in other court cases including the US Supreme Court support the fact this created an insurmountable appearance of bias, one which violated the U.S. Constitution as well as this court’s own rules and ethical guidelines.

Independence: Judge Bennett has previously sat by designation at the Court of Appeals for the Fifth Circuit, see; Forby v. One Techs., L.P., 909 F.3d 780 (5th Cir. 2018) (“Before GRAVES and COSTA, Circuit Judges, and BENNETT, District Judge. ALFRED H. BENNETT, District Judge:”).

The question remains as to whether, in times of diversity and appointments of persons of color to the bench, if Senators John Cornyn and Ted Cruz, who is married to Heidi Cruz, a Goldman Sachs managing director, will be seeking to endorse Judge Bennett in the near future for services rendered in executing the greatest theft of American housing by Wall St. Bankers and their supporters.

After all, history sent (now former Fifth Circuit Judge) Gregg Costa from the same courthouse in S.D. Texas, Houston Division as Judge Bennett, to the Fifth Circuit after he prosecuted Allen Stanford for financial crimes, while Asst. U.S. Attorney. He would tag-team with Judge David Hittner (trial judge) to obtain his conviction, and then enjoyed a meteoric rise to federal judge (2012) and then quickly nominated and affirmed as a circuit judge (2014).

Appellant is aware from a legal support channel for Stanford, and who directly reached out to her, they allege many facts of this case were suppressed and due process denied. In short, critical questions remain unanswered as to why Stanford was not only found guilty but sentenced so severely to 110 years in prison when many others are sentenced to far less terms for similar crimes.

Coincidentally, after nearly a decade of the Burkes’ appearing before Judge Hittner (but never once meeting Judge Hittner in person), this “blind draw” case would fall into Judge Bennett’s chambers. A similar pattern emerged in this case, namely the Burkes’ would never meet Judge Bennett at any time during the lower court case, as there was zero conferences or hearings actually held.

THE FIFTH CIRCUIT  “CLERKGATE SCANDAL”

Void Judgment(s): As detailed in the Burkes’ lower court lawsuit and subsequent pleadings,  a rogue 5^th Cir. Clerk seized the Burkes’ possessions and whilst impersonating the Burkes, filed a fraudulent motion. As a result,  the 3-Panel of judges relying upon this fraudulence, would dismiss the Burkes’ Petition for Rehearing and issue final judgment(s) in the case(s) on appeal. This is fraud BY the court (emphasis added) and without doubt, void.

CONCLUSION

As stated in their jointly filed federal lawsuit, the Burkes’ provided another opportunity for Texas and the Federal Judicial Branch to correct a manifest injustice. In general, a manifest injustice is a legal decision or action that is so fundamentally unfair and inconsistent with the principles of justice that it goes against the basic values of our legal system.

It is a term used to describe a gross miscarriage of justice or an obvious abuse of discretion that shocks the conscience of the reviewing court.

Manifest injustice is not just a legal concept, but a moral one that represents a betrayal of the fundamental values of fairness, equity, and justice (emphasis added).

However, judges in Texas remain unjustly above the law, relying upon judicial immunity which stretches well beyond what the Framers intended.  That sentiment is reverberated around the country by Citizens left disenchanted by both the courts and the U.S. Government.

Furthermore, according to Ballotpedia, since 2007, the Fifth Circuit has been reversed in over 72% in cases before the Supreme Court.

In conclusion, when the lower court and this court’s prior opinions are so unfair and unjust that it shocks the conscience, but the complainant is directed to allow the same court(s) to become the reviewing court, that cannot possibly stand, in the interest of justice.

As such, this motion should be GRANTED, and the appeal transferred to the Court of Appeals for the Eighth Circuit.

Respectfully submitted,

DATED: February 17, 2023