ALD-313                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-2978
                                      ___________

                       IN RE: JOSE CRISTOBAL CARDONA,
                                                     Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Middle District of Pennsylvania
                     (Related to M.D. Pa. Civ. No. 3-13-cv-01179)
                      ____________________________________

                   Submitted Pursuant to Rule 21, Fed. R. App. P.
                                  July 31, 2014
         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                           (Opinion filed: September 16, 2014)
                                        _________

                                       OPINION
                                       _________

PER CURIAM

      Jose Cristobal Cardona, a federal prisoner incarcerated at USP-Lewisburg,

petitions for a writ of mandamus. For the reasons that follow, we will deny the petition.

      In May 2012, Cardona filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 in the District Court for the Middle District of Pennsylvania. The District

Court construed the petition as a motion pursuant to 28 U.S.C. § 2255, and transferred it

to the District Court for the Western District of Texas pursuant to 28 U.S.C. § 1404. In

doing so, the District Court noted that Cardona had been convicted and sentenced in the
Western District of Texas, and that his § 2241 petition restated claims that Cardona had

raised unsuccessfully in a previous § 2255 motion in the sentencing court. Cardona

appealed the District Court’s decision to this Court, and we held that we did not have

appellate jurisdiction over the matter because it was not final. See No. 13-3932 (3d Cir.

2013). Cardona then filed the instant petition for a writ of mandamus, asking this Court

to reinstate his habeas corpus petition in the Middle District of Pennsylvania.1

       This Court has held that “[m]andamus is . . . the appropriate mechanism for

reviewing an allegedly improper transfer order.” Sunbelt Corp. v. Noble, Denton &

Assocs., 

, 30 (3d Cir. 1993). Mandamus is a drastic remedy available only “in

response to an act amounting to a judicial usurpation of power,” however. See In re Diet

Drugs Prods. Liab. Litig., 

, 378 (3d Cir. 2005). To obtain a writ of

mandamus, a petitioner must satisfy three conditions. First, he must “have no other

adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 

, 380-81 (2004). Second, he must show that his right to the writ is “clear and

indisputable.” 

Third, the reviewing court must conclude that the writ is

“appropriate under the circumstances.” 

Court’s decision to construe the § 2241 petition as a § 2255 motion

was correct, and accordingly the decision to transfer venue was correct, as a § 2255


1
 Cardona is currently prohibited from filing any document in any case in any federal
court without first obtaining leave of court, pursuant to an order of the Honorable Walter
S. Smith of the District Court for the Western District of Texas. See United States v.
Cristobal-Cardona, No. 2:01-cr-00251-WSS (Dkt. No. 731, July 5, 2012).
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motion must be filed in the sentencing court. 28 U.S.C. § 2255(a). A petition filed

pursuant to § 2241 can be used to challenge some aspect of the execution of a federal

inmate’s sentence, such as denial of parole. See Coady v. Vaughn, 

, 485 (3d

Cir. 2001). The presumptive means for a federal prisoner to challenge the validity of a

conviction or sentence, however, is a motion filed pursuant to § 2255 in the sentencing

court. See Okereke v. United States, 

, 120 (3d Cir. 2002). A federal

petitioner can seek such relief under § 2241 only if the remedy provided by § 2255 is

“inadequate or ineffective” to challenge the legality of his detention. § 2255(e); In re

Dorsainvil, 

, 249-51 (3d Cir. 1997). A § 2255 motion is not inadequate or

ineffective merely because a previous claim for relief was denied by the sentencing court,

see Litterio v. Parker, 

, 396 (3d Cir. 1966), nor is it ineffective due to a

petitioner’s failure to obtain authorization for a second or successive motion as required

by §§ 2244 and 2255(h). See In re 

. “It is the inefficacy of

the remedy, not the personal inability to use it, that is determinative.” Cradle v. United

States ex rel. Miner, 

, 538 (3d Cir. 2002).

       Upon review, we agree with the District Court’s treatment of Cardona’s petition as

a § 2255 motion. Cardona’s claims pertain to the effectiveness of his prior counsel,

therefore implicating the validity of his conviction and sentence. See Strickland v.

Washington, 

, 686 (1984). Cardona’s limitations on filing in the Western

District of Texas and the requirement of authorization to file a second or successive


                                              3
§ 2255 motion may have resulted in a “personal inability to use” § 2255 as a remedy, but

they have not made it inadequate or ineffective such that § 2241 would be available.

       A District Court, “[f]or the convenience of parties and witnesses, in the interest of

justice, . . . may transfer any civil action to any other district or division where it might

have been brought.” 28 U.S.C. § 1404(a) (emphasis added). Because Cardona’s petition

was effectively a § 2255 motion, it would have been properly filed in the Western District

of Texas.

       We agree with the District Court’s construction of Cardona’s petition and the

resulting change of venue. As a result, Cardona cannot satisfy the conditions requisite to

grant a writ of mandamus. Cardona’s right to the writ is not “clear and indisputable,” see

, as the District Court’s actions concerning his § 2241 petition

were proper. We will therefore deny the petition for a writ of mandamus.




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