12-1638 (L), 12-1992-pr (Con)
Roman v. Fierro

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of December, two thousand and twelve.

PRESENT:

           JOSÉ A. CABRANES,
           REENA RAGGI,
           PETER W. HALL
                                Circuit Judges.
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ORLANDO ROMAN,

                     Plaintiff-Appellant,

                     -v.-                                                                     Nos. 12-1638 (L),
                                                                                              12-1992-pr (Con)
PATRICK FIERRO, A.D.A. Monroe County District Attorney’s
Office, JOHN J. ARK, J.S.C. Monroe County Supreme Court,

                      Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                                                  Orlando Roman, pro se, Pine City, NY.

FOR DEFENDANTS-APPELLEES:                                                 No appearance.


       Appeal from March 14, 2012 and May 2, 2012 orders of the United States District Court for the
Western District of New York (Michael A. Telesca, Judge; David G. Larimer, Judge).



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    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the March 14, 2012 and May 2, 2012 orders of the District Court be AFFIRMED.

        Orlando Roman appeals from a March 14, 2012 order of the District Court construing his
complaint as a petition for habeas corpus under 28 U.S.C. § 2254 and a May 2, 2012 order of the
District Court denying his motion for reconsideration. We assume familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.

        Roman is currently incarcerated at the Southport Correctional Facility, based on two convictions
in Monroe County, NY. On March 6, 2012, Roman filed this suit pursuant to “42 U.S.C. sec. 1983; the
Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; and the Fifth and Fourteenth
Amendments of the United States Constitution.” Compl. at 2, Roman v. Fierro, No. 12-cv-06123-MWP
(W.D.N.Y. Mar. 6, 2012). Roman alleged that Patrick Fierro, an Assistant District Attorney in the
Monroe District Attorney’s Office, and Judge John J. Ark, a Justice of the Monroe County Supreme
Court, violated his due process rights when Judge Ark denied a motion to vacate his judgment of
conviction on the basis of new evidence. Id. at 1.

        On March 13, 2012, the District Court (Michael A. Telesca, Judge) issued an order notifying
Roman that, under Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), his suit could only be maintained as a
petition for habeas corpus pursuant to 28 U.S.C. § 2254, and that the court would so construe his
complaint unless withdrawn within thirty days. On March 21, 2012, Roman moved for reconsideration
of the March 13 order. In the alternative, Roman moved to withdraw his complaint if the District
Court determined that his suit still could not proceed except under § 2254. On May 2, 2012, the
District Court (David G. Larimer, Judge) denied Roman’s motion for reconsideration, granted his motion
to withdraw his petition, and denied his requests for an injunction and stay pending appeal.

         Having reviewed the District Court’s determination that Roman’s complaint must be construed
as a habeas petition de novo, Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000) (questions of law reviewed
de novo), we conclude that Roman’s claim “lies so well ‘within the core of habeas corpus’ that it may only
be brought in a habeas petition.” McKithen v. Brown, 481 F.3d 89, 99 (2d Cir. 2007) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 79 (2005)). Roman’s suit is plainly an attempt to challenge the state court’s process
under the Constitution and invalidate his conviction. Roman’s sole remedy, therefore, is a writ of
habeas corpus. Preiser, 411 U.S. at 500 (“[W]hen a state prisoner is challenging the very fact or duration
of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas
corpus.”).




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       Accordingly, the District Court properly construed Roman’s complaint as a petition for a writ of
habeas corpus, denied his motion to reconsider, and granted his motion to withdraw his complaint.1

                                                    CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we AFFIRM the March 14, 2012 and May 2, 2012 orders of the District Court.

                                                        FOR THE COURT,
                                                        Catherine O’Hagan Wolfe, Clerk of Court




1
 We note that Roman has previously filed a petition for a writ of habeas corpus. That petition was denied, Roman v. Napoli,
No. 08-CV-6561 (MAT), 2010 WL 4922627 (W.D.N.Y. Dec. 2, 2010), as was Roman’s subsequent application to this Court
for a certificate of appealability, Roman v. Napoli, No. 10-5261-pr (2d Cir. May 12, 2011) (order denying motion for
certification of appealability). Unless Roman seeks leave from this Court to file a successive habeas petition, the District
Court has no jurisdiction over this case. Torres v. Senkowski, 316 F.3d 147, 151-52 (2d Cir. 2003). As mentioned above,
Roman moved to dismiss his complaint rather than follow that course.
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