2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2013

In Re: Cosme Ordaz

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4194

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2013 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Cosme Ordaz" (2013). 2013 Decisions. Paper 1383.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/1383
CLD-067 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4194

___________

In Re: COSME ORDAZ,

Petitioner

____________________________________

Petition for Writ of Mandamus from the

United States District Court for the Eastern District of Pennsylvania

(Related to Criminal No. 2:98-cr-00587-016)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

December 13, 2012

Before: RENDELL, JORDAN and GARTH, Circuit Judges

(Opinion filed: January 14, 2013)

_________

OPINION OF THE COURT

_________

PER CURIAM

Cosme Ordaz is a federal prisoner currently serving a 298-month sentence of 

incarceration. We vacated the first sentence imposed by the District Court, see generally

United States v. Ordaz, 398 F.3d 236 (3d Cir. 2005), but affirmed the second, see 

generally United States v. Ordaz, 227 F. App’x 170 (3d Cir. 2007); we also denied him a 

certificate of appealability in the collateral attack on his conviction and sentence. See

C.A. No. 11-1587 (order entered Oct. 17, 2011). 
2

Ordaz now petitions for mandamus from this Court on the basis of two documents 

from the sentencing phase of his trial (ECF Nos. 627 and 772), both requesting 

“downward departures” based allegedly on poor conditions of pretrial confinement.1

As Ordaz acknowledges, mandamus is “an appropriate remedy in extraordinary 

circumstances only. . . . A petitioner seeking the issuance of a writ of mandamus must 

have no other adequate means to obtain the desired relief, and must show that the right to 

issuance is clear and indisputable.” 

Ordaz contends that the motions were never ruled upon by the District Court, in violation 

of Fed. R. Crim. P. 32(i)(3)(B). He filed a “request for status report” below, and was told 

by the District Court that the case was now closed. According to Ordaz, this state of 

affairs compels us to “vacate the sentence and remand for the district court to clarify the 

basis for its ruling.” Pet. 4.

Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), 

superseded in part by 3d Cir. L.A.R. 24.1(c) (1997) (altering prisoner-account-statement 

procedure described in footnote 6 of Madden). Nor is a mandamus proceeding a 

substitute for direct appeal. See Helstoski v. Meanor, 442 U.S. 500, 506 (1979). First, 

Ordaz does not actually demonstrate that the District Court failed to rule on the motions 

to which he refers; furthermore, the first of the two was filed pro se while he was 

represented by counsel, see United States v. Turner

 1 See, e.g., United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000).

, 677 F.3d 570, 578 (3d Cir. 2012), 
3

and predated our decision to remand the case for resentencing. The submissions 

themselves are not currently available on the District Court’s electronic docket, nor has 

Ordaz presented us with copies of them. But ultimately, even if the District Court erred 

by failing to address Ordaz’s request for a departure, the time to raise this claim—and 

alleged Rule 32(i) errors are waivable, see United States v. Broxmeyer

Thus, finding neither extraordinary circumstances nor an indisputable right, we 

will deny this petition for mandamus.

, 699 F.3d 265, 

278–79 (2d Cir. 2012)—has long since passed. Rule 32(i) governs procedures at 

sentencing, which took place some time ago. Since then, Ordaz has pursued two direct 

appeals and a collateral attack, without raising the lingering, unresolved sentencing 

motions. As the District Court correctly explained, his conviction and sentence are now 

final. Mandamus cannot generally provide an alternative when a litigant has previously 

failed to raise available claims.