JOHN TELLO v. STATE OF TEXAS
United States Court of Appeals, Fifth Circuit
201
John Tello pleaded guilty in Texas state court to two counts of indecency with a child by exposure and one count of possession of child pornography. Adjudication of guilt was deferred, and Tello was sentenced to concurrent five-year terms of deferred-adjudication probation.
When the state moved to revoke probation and for adjudication of guilt, Tello removed the case to federal court and sought habeas corpus relief. The federal district court remanded and denied the habeas application. Tello filed a notice of appeal and motions to supplement the record on appeal and to stay the state proceedings.
Although the district court referred to the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), it correctly noted the lack of federal subject-matter jurisdiction. Moreover, it is plain that “federal jurisdiction never existed.” Bogle v. Phillips Petroleum Co., 24 F.3d 758, 762 (5th Cir. 1994). The state action against Tello was a continuation of his state criminal action. See McClendon v. State, 784 S.W.2d 711, 713 (Tex App.-Houston [14th Dist.] 1990, pet. ref‘d) (holding that deferred adjudication of guilt is “part and parcel” of the original criminal plea proceeding);
Because the district court lacked jurisdiction and did not “clearly and affirmatively” rely on a basis for removal other than a lack of jurisdiction, this court lacks jurisdiction to review the remand order. See Heaton v. Monogram Credit Card Bank, 231 F.3d 994, 997 (5th Cir.2000); Bogle, 24 F.3d at 761;
Absent jurisdiction, the district court‘s ruling on Tello‘s habeas corpus application is void. See Bogle, 24 F.3d at 762. All of Tello‘s motions are DENIED.
SYLVESTER CASIMIER, Jr., Plaintiff-Appellant v. UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster General, Defendant-Appellee
No. 05-30075
Summary Calendar
United States Court of Appeals, Fifth Circuit
Decided July 1, 2005
Glenn Kenneth Schreiber, Assistant U.S. Attorney, William P. Gibbens, U.S. Attorney‘s Office, New Orleans, LA, for Defendant-Appellee.
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Sylvester Casimier, Jr. (“Casimier“) appeals the district court‘s grant of summary judgment in favor of Defendant-Appellee the United States Postal Service, John E. Potter, Postmaster General (the “Postal Service“). For the reasons that follow, we affirm the judgment of the district court.
The following facts are undisputed by the parties. In 1996, Casimier was employed by the Postal Service as a Distribution Clerk. On January 10, 1997, the Postal Service issued to Casimier a notice of proposed removal which stated that Casimier had been reported being absent without official leave for approximately four hours per day for more than eighty days
The record indicates that Casimier challenged his removal by filing both an appeal to the MSPB and an EEO complaint with the Postal Service. On January 21, 1997, Casimier filed an informal complaint with the Postal Service EEO office. In his informal EEO complaint, Casimier alleged that he was subjected to discrimination on account of his race, sex, color, physical handicap, and age. On April 10, 1997, Casimier received by certified mail a Notice of Final Interview and Right to File a Formal Complaint, which notified Casimier that he had fifteen days to file a formal complaint. Casimier, however, never filed a formal complaint of discrimination and his EEO claim, therefore, was never investigated.
Instead, on April 8, 1997, Casimier appealed his removal to the MSPB. On his MSPB appeal form, Casimier did not contend that his removal by the Postal Service was based in whole or in part on discrimination. On June 23, 1997, an administrative officer dismissed Casimier‘s MSPB appeal as withdrawn. Casimier subsequently filed a petition for review, challenging the dismissal of his MSPB appeal. On March 10, 1998, the MSPB remanded the case, and on July 31, 1998, an administrative officer affirmed Casimier‘s removal by the Postal Service. Casimier petitioned for review of that decision, but on September 30, 1998, the MSPB denied his petition.
On March 22, 2001, two and a half years after the MSPB‘s final action, Casimier filed a second informal complaint with the Postal Service EEO office. In this complaint, Casimier alleged that he was subjected to discrimination based on his race, sex, color, national origin, physical and mental disability, age, and in retaliation for his prior EEO activity.
On May 17, 2001, Casimier was notified of his right to file a formal complaint of discrimination, which Casimier did on May 25, 2001. On June 18, 2001, the Postal Service dismissed Casimier‘s complaint. The Postal Service concluded that Casimier‘s 2001 claim was identical to the claim Casimier failed to fully exhaust in 1997, necessitating dismissal of the 2001 complaint pursuant to
On February 4, 2003, the Postal Service again denied Casimier‘s 2001 complaint. In so doing, the Postal Service determined that Casimier‘s election to pursue the issue of his removal with the MSPB prevented his pursuit of an EEO claim. The Postal Service also notified Casimier of his right to file a civil action within ninety days, or in the alternative, to file an appeal to the EEOC within thirty days. Casimier elected to appeal to the EEOC, and on August 8, 2003, the EEOC upheld the Postal Service‘s dismissal of Casimier‘s complaint:
[T]he record reflects that [Casimier] filed an appeal with the MSPB on April 8, 1997 concerning his termination ...,
but did not file his EEO complaint until May 25, 2001. [In so doing, Casimier] elected to pursue his claim via MSPB, [and] not the EEO process. 29 C.F.R. § 1614.302(b) . Accordingly, we AFFIRM the agency‘s final decision, dismissing the complaint pursuant to29 C.F.R. § 1614.107(a)(4) .
Casimier subsequently filed a request for reconsideration, which was denied on September 29, 2003.
On October 30, 2003, Casimier timely filed a complaint in federal district court against the Postal Service alleging employment discrimination. On January 3, 2005, the district court granted the Postal Service‘s motion for summary judgment on the ground that Casimier waived his discrimination claims by failing to include them in his MSPB appeal. This appeal by Casimier followed.
We review the district court‘s grant of summary judgment de novo. In re Intelogic Trace, Inc., 200 F.3d 382, 386 (5th Cir.2000). Having done so, we conclude that Casimier waived his discrimination claims by failing to raise the issue of discrimination in his MSBP appeal.
A “mixed case” appeal denotes a situation, such as that in the instant case, in which a plaintiff claims that an appealable agency action was based in whole or in part on discrimination. See Blake v. Dep‘t of Air Force, 794 F.2d 170, 172 n. 1 (5th Cir.1986). Pursuant to
In the instant case, Casimier elected to appeal his removal to the MSPB. However, in so doing, Casimier elected not to bring a mixed case appeal. Casimier did not file a mixed case appeal with the MSPB because he did not contend that his removal was based in whole or in part on discrimination. In failing to raise the issue of discrimination in his MSPB appeal, Casimier waived his right to challenge his termination based on discrimination. See
AFFIRMED.