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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 11

- 2396

_____________

JOSE CRISTOBAL CARDONA,

Appellant

v.

WARDEN B. A. BLEDSOE

_______ ______
On Appeal from the United States District Court
for the Middle Di strict of Pennsylvania
District Court No. 3

- 10

- cv

- 02650 District Judge: The Honorable James M. Munley

Argued May 17, 2012

Before: SMITH, and FISHER, Circuit Judges2 and STEARNS, District Judge 

(Filed: June 19, 2012 )

David M. McCleary [ ARGUED] Duquesne University School of Law
600 Forbes Avenue Pittsburgh, PA 15282

Adrian N. Roe
Suite 1331
707 Grant Street
Gulf Tower Pittsburgh, PA 15219 Counsel for Appell ant

Kate L. Mershimer [ARGUED]
Mark E. Morrison
Office of the United States A ttorney 228 Walnut Street
P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108 Counsel for Appell ee

 The Honorable Richard G. Stearns, United States District Judge for the United States District Court of Massachusetts, sitting by desi gnation.3 ________________

OPINION

________________

SMITH, Circuit Judge.

Jose Cristobal Cardona, a federal inmate, petitions
for habeas reli ef under 28 U.S.C. § 2241, arguing that the Bureau of Prisons (“BOP”) illegally referred him to the Special Management Unit (“SMU”) of the penitentiary in which he is currently placed, as punishment for filing numerous lawsuits against the BOP. The sole i ssue raised in this appeal is whether Cardona may maintain this suit as a habeas action under § 2241, or whether he must instead file a civil rights action under Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971) , to seek
redress . The District Court dismissed Cardona‟s petition for lack of jurisdiction, holding that Cardona‟s claims were not properly brought under § 2241. We agree, and
will affirm.

I.

On March 28, 2002, Cardona was convicted by a jury in the District of Minnesota of one count of

cons piracy to possess with intent to distribute over 100 kilograms of marijua na, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) & 846; one count of conspiring to possess wi th intent to distribute less tha n 100 grams of4 heroin, in violation of 21 U.S.C. §§ 8 41(a)(1), (b)(1)(C)
& 846 ; one count of possession with intent to distribute over 100 kilograms of marijuana, in violation of 21
U.S .C. §§ 841(a)(1) & (b)(1)(B); and one count of possession with intent to distribute over 100 grams of heroin, in violation o f 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). Cardona was sentenced, inter alia , to 480

- months imprisonment.

Since being sentenced, Cardona has been
transferred between several federal correctional facilities. At some time prior to February 27, 2009, Cardona w as transferred to the United States Penitentiary in Lewisburg, Pennsylvania, where he remains. On that date, BOP served Cardona with a notice that he was being referred to the SMU. The SMU provides a four

step program that limits an inmate‟s contact with other prisoners and limits access to the inmate‟s own personal property. An inmate referred to the SMU is gradually allowed to reintegrate, so long as he or she demonstrates “the potential for positive „community‟ interaction.” App‟x JA031. Section 521 7.01 of BOP‟s Program Statement (the “Program Statement”), see App‟x JA023

- 34, provides that referral to the SMU is “non

- punitive” and is appropriate, inter alia

, when an inmate has a history of serious disciplinary infractions.

Between Cardona‟s sentencin g and his referral to the SMU, Cardona filed more than seven lawsuits challenging various aspects of his conviction and the5 conditions of his confinement. Cardona considers himself “a natural born Mexican American freedom fighter [who] files lawsuits agai nst [BOP] officials and fights for the freedom of unlawful convictions and injustices by the U.S. government‟s corrupt officials against the Mexican people.” App‟x JA017. Cardona believes that his referral to the SMU was an attempt to punish him for his history of litigation. 1

On December 28, 2010, Cardona filed a pro se habeas petition under 28 U.S.C. § 2241, contesting his referral to the SMU. Cardona argued that his referral to the SMU was punitive, and was thus “illegal” under the Program Statement

. 2 On January 24, 2011, the District Court dismissed Cardona‟s petition for lack of jurisdiction. The Court held that Cardona‟s placement in
the SMU did not “affect the fact or duration” of his incarceration, and that his claim therefore did not lie in

1 Cardona concedes that BOP‟s notice stated that his
referral was the result of various narcotics

- related infractions. App‟x JA017. Cardona argues that he has been “free from incident reports” since June 3, 2008, implying that BOP‟ s justificatio n was pretextual.

2 Cardona also raised claims under the Administrative
Procedures Act. Those claims have not been raised on appeal, and we do not address them here.6 h abeas. App‟x JA011. The Court dismissed Cardona‟s petition without prejudice to file a civil rights action raising the same allegations under Bivens . On January 28, 2011, Cardona timely filed a pro se motion for
reconsideration under Federal Rule of Civ il Procedure 59(e). On May 16, 2011, the District Court denied Cardona‟s motion.

On May 20, 2011, Cardona timely filed a pro se notice of appeal. On July 14, 2011, we appointed pro bono counsel. 3 We directed counsel to address “along with any other iss ues, whether Appellant‟s claims may be brought pursuant to 28 U.S.C. § 2241.” App‟x JA013.

II.

Cardona raises a single, discrete issue on appeal: whether the District Court erred by dismissing his petition for lack of subject

- matter jurisdiction. We hav e jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 & 2253(a). We review de novo the District Court‟s dismissal of a habeas petition on jurisdictional grounds. Okereke v. United States , 307 F.3d 117, 119 (3d Cir. 2002).

3 We express our appreciation to pro bono counsel,
Adrian N. Roe , law student David M. McCleary, and the Duquesne University School of Law Bill of Rights Clinic, for their able representation of Cardona in this

matter.7 “Federal courts are cou rts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of
Am. , 511 U.S. 375, 377 (1994). Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over
ha beas petitions filed by federal inmates. The exact interplay between § 2241 and § 2255 is complicated, and explication of that relationship is unnecessary for resolution of this appeal. See generally In re Dorsainvil

, 119 F.3d 245, 249 (3d Cir. 1997). W hat is relevant for our purposes is that unlike § 2255, which only confers jurisdiction over “challenges [to] the validity of the petitioner‟s sentence [

, ] ” we have held that § 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” 4 Woodall v. Fed. Bureau

4 Cardona argues that the District Court erred by holding that “[f]ederal habeas relief is unavailable unless the petition a ttacks „the validity of the continued conviction or the fact or length of the sentence.‟” App‟x JA011. We agree, insofar as the District Court failed to recognize
that § 2241 extends jurisdiction to claims concerning the
execution of a federal inmate‟s s entence. See Woodall v. Fed. Bureau of Prisons , 432 F.3d 235, 241

- 42 (3d Cir. 2005). Nonetheless, “[w]e may affirm a district court for any reason supported by the record.” Brightwell v.
Lehman , 63 7 F.3d 187, 191 (3d Cir. 2011).8 of Prisons , 432 F.3d 235, 241 (3d Cir. 2005) (quoting Coady v. Vaughn , 251 F.3d 480, 485 (3d Cir. 2001) )

. 5

Admittedly, “the precise meaning of „execution of
the sentence‟ is hazy.” Woodall , 432 F.3d at 24 2 . We
considered this issue in detail in Woodall . There, the sentencing court specifically included in its sentencing judgment a recommendation that the petitioner “spend
the last six months of his sentence in a halfway house [

, ] ” in accordance with 18 U.S.C. § 3624(c). Woodall , 432 F.3d at 238. Despite this recommendation, BOP refused to place Woodall in a Community Corrections Center

5 Other Courts of Appea ls have also held that § 2241 permits challenges to the execution of an inmate‟s

sentence. See, e.g.

, Gonzales

- Fuentes v. Molina , 607 F.3d 864, 875 n.9 (1st Cir. 2010); Nichols v. Symmes

, 553 F.3d 647, 649 (8th Cir. 2009); Antonelli v. Warden,
U.S.P. Atla nta , 542 F.3d 1348, 1352 (11th Cir. 2008);
Adams v. United States , 372 F.3d 132, 135 (2d Cir. 2004); United States v. Peterman , 249 F.3d 458, 461 (6th Cir. 2001); Hernandez v. Campbell , 204 F.3d 861, 864 (9th Cir. 2000); Valona v. United States , 138 F.3d 6 93, 694 (7th Cir. 1998); In re Vial , 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).9 (“CCC”) 6 for more than ten weeks, citing its own internal regulations. Wood all filed a habeas petition under § 2241, challenging BOP‟s decision to limit his placement in a CCC to ten weeks.

We held that Woodall‟s claim concerned the execution of his sentence, and was properly brought under § 2241. We defined execution as meaning “to „put into effect‟ or „carry out.‟” Woodall , 432 F.3d at 243 (quoting Webster’s Third New Int’l Dictionary 794 (1993)) . Woodall was challenging the inconsistency
between the se ntencing court‟s recommendation and BOP‟s refusal to abide by that recomme ndation. As we noted, “[c]arrying out a sentence through detention in a CCC is very different from carrying out a sentence in an ordinary penal institution.” Id. Because Woodall‟s habeas petition claimed that BOP was not “carrying out”
his sentence as d irected, we held that his petition was reviewable under § 2241.

Similarly, in McGee v. Martinez , 627 F.3d 933,
936

- 37 (3d Cir. 2010), the peti tioner was sentenced to
120

- months imprisonment and assessed a $10,000 fine. The sentencing judgment provided tha t while the petitioner was in prison, “[p]ayment [of the fine] is to be made from prison earnings at a rate of $20.00 per

6 We noted that a CCC was for all intents and purposes indistinguishable from a halfway house. See Woodall

, 432 F.3d at 240 n.4.10 month[.]” Id. at 934. Despite this specified rate of repayment in McGee‟s sentencing judgment, BOP placed
McGee on an Inmate Financ ial Responsibility Plan (“IFRP”) that required McGee to make payments at a rate of $25 per month. McGee filed a habeas petition under § 2241, challenging BOP‟s decision to increase the rate of repayment in his IFRP beyond the rate provided for by
the sent encing court.

Again, we held that McGee‟s claim concerned the execution of his sentence, and was properly brought under § 2241. In so holding, we emphasized the fact that McGee‟s petition was “at bottom, a challenge to the IFRP and its requirement that Mc Gee pay [$25 per month] when his sentence . . . requires only $20 per month[.]” Id. at 937. Indeed, we characterized McGee‟s petition as “argu[ing] that the payment terms imposed by [BOP] (in the IFRP) are illegal in that they conflict with the terms imp osed by the sentencing court (in the judgment).” Id.

The petitions in Woodall and McGee both challenged BOP conduct that conflicted with express statements in the applicable sentencing judgment. That is, both petitions claimed that the BOP was not prop erly “„put[ting] into effect‟ or „carry[ing] out‟” the directives of the sentencing judgment

. Woodall , 432 F.3d at 243 ; see also Muhammad v. Close , 540 U.S. 749, 754

- 55 (2004) ( holding that an inmate‟s civil rights claim could not “be construed as seeking a judgment at odds with his11 conviction or with the State‟s calculation of time to be served in accordance with the underlying sentence[,]”
and thus “raised no claim on which habeas relief could have been granted on any recognized theory”) . For that

reaso n, we held that Woodall and McGee‟s petitions concerned the execution of their sentences, and that § 2241 authorized a federal district court to exercise jurisdiction over both petitions.

In order to challenge the execution of his sentence under § 2241, Ca rdona would need to allege that BOP‟s
conduct was somehow inconsistent with a command or recommendation in the sentencing judgment. 7 Cardona
has failed to do so here. He has not alleged that BOP‟s conduct was inconsistent with any express command or

rec ommendation in his sentencing judgment . Indeed, at oral argument, Cardona conceded that there was nothing in the judgment forbidding, or even concerning, his placement in the SMU. Cardona‟s petition simply does not concern how BOP is “carrying out” or “p utting into effect” his sentence, as directed in his sentencing judgment. Consequently, Cardona has not challenged the

7 We do not suggest that contesting any express recommendation from the sentencing court will necessarily give rise to habeas jurisdiction under § 2241. There may be circumstances where an alleged discrepancy between a court‟s recommendation and the BOP‟s conduct do not give rise to a habeas claim.12 execution of his sentence, such that the District Court would have jurisdiction over his petition under § 2241.

Cardona alternatively ar gues that his claim is a challenge to the length of his confinement, and therefore

may be brought in a habeas petition. He argues that as a consequence of his referral to the SMU, he becomes eligible to lose “good time credits” that might have
resulted in a lower sentence. We considered this argument in detail in Leamer , where a New Jersey inmate challenged his placement in a Restricted Activities Program, which consequently made him ineligible for parole. Leamer v. Fauver , 288 F.3d 532, 5 36 (3d Cir.
200 2) . There, we held that such a claim was not properly brought in habeas because “a favorable decision of Leamer‟s challenge would [not] necessarily imply that he would serve a shorter sentence[.]” Id. at 543. That is,
even if Leamer was removed from the Restricted Activities Program and became eligible for parole, he might not necessarily receive a shorter sentence. The facts here are virtually indistinguishable from Leamer

. Even if Cardona‟s placement in the SMU makes him eligible to lose good time cr edits, he might not end up losing any. 8

8 Indeed, the Supreme Court‟s recent opinion in Pepper
v. United States

, --- U.S.

--- , 131 S. Ct. 1229 (2011) calls into question whether an inmate can even bring a habeas
claim for an actual loss of good time credits, holding that13 Cardona‟s claims do not concern the execution of his sentence, because the BOP‟s conduct is not inconsistent with his sentencing judgment. Cardona‟s
claims also would not necessarily result in a change to
the dura tion of his sentence . Thus, “ g ranting [Cardona‟s] petition would [not] „necessarily imply‟ a change to
the

. . . duration, or execution of the petitioner‟s
sentence.” McGee , 627 F.3d at 936. As such, Cardona‟s claims were not properly brought in a habea s petition under § 2241 , and the District Court correctly dismissed his petition for lack of subject matter jurisdiction. 9

“[a]n award of good time credit by the [BOP] does not affect the length of a court

- imposed sentence; rather, it is an administrative reward „to provide an incentive for prisoners to compl[y] with institutional disciplinary regulations.‟” Id. at 1248 n.14 (internal quotation marks omitted) (quoting Barber v. Thomas , 560 U.S.

--- , 130 S. Ct. 2499, 2505 (2010)).

9 We have held that a challenge to the conditions of an inmate‟s confinement may be brought in a civil rights
action. See McGee , 627 F.3d at 936 (discussing Leamer ).
The G overnment suggests that because Cardona‟s petition concerns the conditions of his confinement, and thus would properly be brought in a civil rights action,
that he cannot raise these same claims in a habeas petition. Because we determine that Cardona‟s cl aim14 III.

We conclude that Cardona‟s claims were not properly brought in a habeas petition under § 2241, and as such, that the District C ourt lacked jurisdiction over his petition. We will affirm the judgment of the District
Court.

does not concern the execution of his sentence, it is
irrelevant whether or not his claims concern the conditions of his sentence; we express no opinion on whether Cardona could bring his claims in a civil rights
action under Bivens

.