Severino v. United States

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

YOVANNY HERNANDEZ SEVERINO,

Plaintiff, v. Case No. 8:22-cv-1490-WFJ-AEP

UNITED STATES OF AMERICA,

Defendant. _____________________________________/

O R D E R

Before the Court is Mr. Severino’s Complaint (Doc. 1). The Complaint is essentially identical to a previous complaint for declaratory relief he filed in this Court that was dismissed without prejudice to him challenging his federal conviction under 28 U.S.C. § 2255. See Severino v. United States, Case No. 8:22-cv-206-WFJ-AEP (M.D.Fla.). Mr. Severino must challenge his federal conviction under § 2255 rather than under the Declaratory Judgment Act, 28 U.S.C. 2201. See United States v. Knowles, 683 F. App’x 736, 737 (11th Cir. 2017) (“Collateral attacks on the legality of a federal sentence typically must be brought under 28 U.S.C. § 2255.”); Hurley v. Lindsay, 207 F.2d 410, 410–11 (4th Cir. 1953) (“If there was any irregularity in the sentence or orders under which appellant was held, . . .appellant’s remedy was a motion in the sentencing court under 28 U.S.C. § 2255, not a petition for a declaratory judgment in another court.”); Clark v. Memolo, 174 F.2d 978, 981 (D.C. Cir. 1949) (“The action for declaratory judgment is not suitable. . .as a substitute for a motion to vacate or to 1 correct the sentence in the court where it was imposed, or as a substitute for habeas corpus in the district where the unlawful detention occurs, or as a substitute for a new trial or appeal.”); Gajewski v. United States, 368 F.2d 533, 534 (8th Cir.1966) (per curiam) (“[W]e are unaware of any authority which would permit the [Declaratory Judgment Act] to be used as a post-conviction remedy.”); Forsythe v. Ohio, 333 F.2d 678, 679 (6th Cir.1964) (per curiam) (‘“[T]he Declaratory Judgment Act. . .cannot be used as a substitute for appeal, habeas corpus, coram nobis or other procedures... .”). Accordingly, Mr. Severino’s Complaint (Doc. 1) is DISMISSED. The Clerk must close this case and send a copy of this Court’s standard form 28 U.S.C. § 2255 motion to Mr. Severino with his copy of this Order. ORDERED in Tampa, Florida, on July 8, 2022. litho, UNITED STATES DISTRICT JUDGE Copy to: Yovanny Hernandez Severino, pro se