2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2012

Jose Cardona v. B. Bledsoe

Precedential or Non-Precedential: Precedential

Docket No. 11-2396

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PRECEDENTIAL

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 District 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 Judges
2

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 Appellant

Kate L. Mershimer [ARGUED]

Mark E. Morrison

Office of the United States Attorney

228 Walnut Street

P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

 

The Honorable Richard G. Stearns, United States 

District Judge for the United States District Court of 

Massachusetts, sitting by designation.
3

________________

OPINION

________________

SMITH, Circuit Judge.

Jose Cristobal Cardona, a federal inmate, petitions 

for habeas relief 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 issue 

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 

conspiracy to possess with intent to distribute over 100 

kilograms of marijuana, in violation of 21 U.S.C. 

§§ 841(a)(1), (b)(1)(B) & 846; one count of conspiring to 

possess with intent to distribute less than 100 grams of 
4

heroin, in violation of 21 U.S.C. §§ 841(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 of 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 was 

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 fourstep 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 5217.01 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 sentencing and his referral to 

the SMU, Cardona filed more than seven lawsuits 

challenging various aspects of his conviction and the 
5

conditions of his confinement. Cardona considers 

himself “a natural born Mexican American freedom 

fighter [who] files lawsuits against [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 justification 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

habeas. 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 Civil 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 issues, 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 have 

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 courts 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 

habeas 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). What 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 attacks „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 sentence. 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, 637 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 242. 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 Appeals 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. Atlanta, 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 693, 

694 (7th Cir. 1998); In re Vial, 115 F.3d 1192, 1194 n.5 

(4th Cir. 1997).
9

(“CCC”)6for more than ten weeks, citing its own internal 

regulations. Woodall 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 sentencing court‟s recommendation and 

BOP‟s refusal to abide by that recommendation. 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 directed, we held that his petition was 

reviewable under § 2241.

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

936-37 (3d Cir. 2010), the petitioner was sentenced to 

120-months imprisonment and assessed a $10,000 fine. 

The sentencing judgment provided that 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 Financial 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 sentencing 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 McGee 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 imposed 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 properly 

“„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 his 
11

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 

reason, 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, Cardona 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 

recommendation 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 “putting 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 argues 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, 536 (3d Cir. 

2002). 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 credits, 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 that 
13

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 duration of his sentence. Thus, “granting [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 habeas 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 Government 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 claim 
14

III.

We conclude that Cardona‟s claims were not 

properly brought in a habeas petition under § 2241, and 

as such, that the District Court 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.