                                                          NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ____________

                                         No. 13-3080
                                        ____________

                               JOSE CRISTOBAL CARDONA,
                                                  Appellant
                                          v.

                                  JEFFREY THOMPSON
                           __________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                                (D.C. Civ. No. 3-12-cv-00819)
                        District Judge: Honorable Robert D. Mariani
                         __________________________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     December 24, 2013

          Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges

                              (Opinion filed: December 26, 2013)
                                        ____________

                                          OPINION
                                        ____________


PER CURIAM

          Appellant Jose Cardona, a federal prisoner, appeals from an order of the District

Court denying his petition for writ of habeas corpus. For the reasons that follow, we will

affirm.
       Cardona, who was then incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania, filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in

the United States District Court for the Middle District of Pennsylvania. In this petition,

he challenged the Bureau of Prisons’ decision to place and keep him in the Special

Management Unit (“SMU”). He claimed that Program Statement 5217.01, pursuant to

which he was placed in the SMU, was promulgated in violation of the Administrative

Procedures Act (“APA”), 5 U.S.C. § 553; that the BOP in placing him in the SMU

improperly imposed an additional sentencing requirement on him; and that he has lost

120 days of Good Conduct Time as a result of his SMU placement. The District Court

stayed the action pending Cardona’s appeal in Cardona v. Bledsoe, D.C. Civ. No. 10-cv-

02650, another of his habeas corpus petitions. In that case, we eventually held that

Cardona’s claim that the BOP placed him in the SMU in retaliation for filing numerous

lawsuits did not concern the execution of his sentence and thus his habeas corpus petition

was properly dismissed for lack of jurisdiction, see Cardona v. Bledsoe, 681 F.3d 533 (3d

Cir. 2012). The stay in the instant habeas corpus action then was lifted, the Magistrate

Judge recommended dismissal, and, in an order entered on June 20, 2013, the District

Court, noting our decision in Cardona v. Bledsoe, dismissed the instant petition because

Cardona’s claims would not alter the fact or duration of his sentence.

       Cardona appeals. We have jurisdiction under 28 U.S.C. §§ 1291 & 2253(a). We

review de novo the District Court’s dismissal of the habeas corpus petition on

jurisdictional grounds. See Okereke v. United States, 307 F.3d 117, 119 (3d Cir. 2002).

In his Informal Brief, Cardona argues that his “forced participation” in the SMU has

                                             2
acted as an additional sentencing requirement that was not intended by the sentencing

court; that participation in the SMU is voluntary and cannot be compelled through loss of

Good Conduct Time; that a failure to hear his case would result in a suspension of the

writ; and that the BOP violated the notice and comment requirements of the APA in

promulgating P.S. 5217.01.

       We will affirm. In recommending dismissal of the section 2241 petition, the

Magistrate Judge reasoned, and the District Court agreed, that jurisdiction was lacking to

the extent that Cardona, in reality, was challenging the conditions of his confinement and

not the execution of his sentence, see Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.

2002). Moreover, contrary to his assertions, SMU placement was entirely consistent with

the sentencing court’s recommendation that Cardona be incarcerated at a high-level

security prison.

       The District Court properly dismissed Cardona’s latest federal habeas corpus

petition for lack of jurisdiction. Cardona was sentenced in the District of Minnesota to a

term of imprisonment of 40 years, following his convictions for controlled substance

violations. At sentencing, the District Judge recommended that he serve his sentence at

USP Florence, or some other high security prison. As we noted in Cardona v. Bledsoe,

after being transferred to USP Lewisburg, Cardona was referred to the SMU, which

limits an inmate’s contact with other inmates until he demonstrates the potential for

positive community interaction, 681 F.3d at 534 (discussing P.S. 5217.01). The record




                                             3
here shows that the BOP referred Cardona to the SMU based on his history of disruptive

behavior.1

       In his most recent habeas corpus petition, Cardona again challenged his placement

in the SMU, but habeas corpus may not be used to challenge the conditions of

confinement. See Leamer, 288 F.3d at 542. Here, Cardona did not contest the legality of

his conviction or the fact or length of his sentence. His claims concerning his placement

in the SMU are essentially “conditions of confinement” claims because the relief he seeks

would not alter his sentence or undo his conviction. See id. at 542-44. In his petition,

Cardona claimed that the BOP violated his right to due process by placing him in the

SMU in order to force him to renounce his associations, but, as we recently explained, in

order to challenge the execution of his sentence under section 2241, he would, at a

minimum, have to show that the BOP’s conduct is inconsistent with a command or

recommendation of the sentencing court, Cardona v. Bledsoe, 681 F.3d at 537. Cardona

has not made that showing here. There is nothing in the criminal judgment prohibiting

his placement in the SMU or even mentioning the SMU. See id. His request to

invalidate the procedures used to confine him in the SMU also is a “conditions of

confinement” claim because, again, success for him would mean at most release into the

general population; it would not mean a shorter stay in prison or placement in the




1
 The administrative record reveals that Cardona was placed in the SMU because he
participated in gang-related activity and because he has a history of serious and disruptive
disciplinary infractions.
                                             4
community. Accordingly, section 2241 is not available to Cardona to bring the APA

claim either.2

         Last, we decline to consider Cardona’s contention on appeal that it would violate

the Suspension Clause in his case to deprive him of this potential avenue of relief. See

generally Boumediene v. Bush, 553 U.S. 723, 746 (2008) (“The Court has been careful

not to foreclose the possibility that the protections of the Suspension Clause have

expanded along with post-1789 developments that define the present scope of the writ.”).

Although Cardona discussed the Suspension Clause in his reply, see Docket Entry No.

17, he did not include a Suspension Clause claim in his section 2241 petition, and the

District Court did not address a Suspension Clause argument. See, e.g., Newark Morning

Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 1976) (“We generally refuse to

consider issues that are raised for the first time on appeal.”). In any event, we seriously

doubt that the Suspension Clause has been violated in Cardona’s case because an

adequate substitute for the writ exists in the form of a Bivens3 action, which may

generally be used to raise “conditions of confinement” claims. Cf. Abernathy v. Wandes,

713 F.3d 538, 555 (10th Cir. 2013) (under Boumediene, statutory remedy may serve as


2
  Although a claim of loss of Good Conduct Time sounds in habeas corpus because the
loss would affect the duration of the inmate’s sentence, Woodall v. Federal Bureau of
Prisons, 432 F.3d 235, 241 (3d Cir. 2005), the District Court did not err in declining to
treat Cardona’s assertion of a loss of 120 days as a separate, cognizable claim. The
allegation was pled not as a separate claim but as an example of the conditions of
confinement relating to SMU placement. See Petitioner’s Objections, at 4 (The “SMU
Program is . . . designed to defraud prisoners of good conduct credit by and through
conspiratorially planned disciplinary actions.”).
3
    See Bivens v. Six Unknown Officers, 403 U.S. 388 (1971).
                                              5
adequate substitute for habeas writ, so long as it sufficiently entitles prisoner to

meaningful opportunity to demonstrate that he is being held in violation of law).

       For the foregoing reasons, we will affirm the order of the District Court denying

Cardona’s petition for writ of habeas corpus.




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