Gary Bastien v. Ronnie Holt

ALD-058 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3720
___________
GARY F. BASTIEN,
Appellant
v.
RONNIE R. HOLT
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 11-cv-00036 )
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6 and for
Request for a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)
December 15, 2011
Before: SLOVITER, FISHER AND NYGAARD, Circuit Judges
(Opinion filed: December 21, 2011)
_________
OPINION
_________
PER CURIAM
Gary Bastien, a federal prisoner proceeding pro se, appeals an order of the United
States District Court for the Middle District of Pennsylvania dismissing his petition for a
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writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, we
will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P.
10.6.
I.
In May 2009, Bastien pleaded guilty in the United States District Court for the
Eastern District of New York to, inter alia, wire fraud and bank fraud, in violation of 18
U.S.C. §§ 1343 and 1344. In January 2011, Bastien filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of
New Jersey challenging the jurisdiction of the United States District Court for the Eastern
District of New York to entertain the charges against him.
The Magistrate Judge assigned to the case provided Bastien with a “Notice of
Election” form that offered Bastien three alternatives. He could choose to: (1) have his
petition ruled on as filed; (2) have his petition re-characterized as a motion pursuant to 28
U.S.C. § 2255 and heard as such, but in that event he would lose his ability to file a
second or successive motion absent certification by the court of appeals; or (3) withdraw
his petition and file one all-inclusive § 2255 motion within the one-year statute of
limitations period prescribed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”).
On the “Notice of Election” form, Bastien elected to have the District Court rule
on his petition as it had been filed. Upon review of the record, the Magistrate Judge
concluded that Bastien failed to make the requisite showing that § 2255 was inadequate
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or ineffective to test the legality of his detention, and recommended that his petition be
dismissed. Upon review of Bastien’s objections to the report and recommendation, the
District Court dismissed the habeas petition for lack of jurisdiction, concluding that
Bastien’s claims are cognizable pursuant to § 2255. This appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291. As recognized by the District
Court, “[m]otions pursuant to 28 U.S.C. § 2255 are the presumptive means by which
federal prisoners can challenge their convictions or sentences[.]” Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002). A petitioner may not challenge a conviction
pursuant to § 2241 unless a § 2255 motion would be “inadequate or ineffective.” Cradle
v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam). And a § 2255 motion
is inadequate or ineffective “only where the petitioner demonstrates that some limitation
of scope or procedure would prevent a § 2255 proceeding from affording him a full
hearing and adjudication of his wrongful detention claim.” Id. at 538.
Bastien has not made such a showing. He contends that his claims may be raised
pursuant to § 2241 because the judgment of the United States District Court for the
Eastern District of New York is void and thus, the action is to prevent the warden where
he is imprisoned from executing on a void judgment. However, we agree with the
District Court that Bastien’s underlying argument--that the judgment is void because the
Eastern District of New York lacks jurisdiction over him--challenges the validity of his
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conviction and must be brought pursuant to § 2255. Bastien has not shown that he will
be prevented from receiving an adjudication of his claim via a § 2255 motion.
Accordingly, because this appeal does not raise a substantial question, we will
affirm the judgment of the District Court. To the extent that a certificate of appealability
is required in this matter, it is denied. Bastien’s outstanding motions are denied.
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