CLD-067                                                          NOT PRECEDENTIAL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).
          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

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.

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


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




                                                       2
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, 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.

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

will deny this petition for mandamus.




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