2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

12-21-2011 

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w . v i l l a no v a . e du/thir dc ir c uit_2011/551 ALD - 058 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 Co urt 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 Re quest 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 a2 writ of habeas corpus pursuant to 28 U.S.C. § 224 1. 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 2 009 , Bastien pleaded guilty in the United States District Court for the Eastern District of New York to , inter a lia, wire fraud and bank fraud , in violation of 18 U.S.C. § § 1343 and 1344

. In January 2011 , B a stien 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 t he jurisdiction of the United States District Court for the Eastern District of New York to entertain th e charges against him. The Magistrate J udge assigned to the case provided Bastien with a “Notice of Election” form that o ffered Bastien three alterna tives. 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 an d Effective Death Penalty Act (“AEDPA”). On the “Notice of El ection” form, Bastien elected to have the District C ou rt 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 sh owing that § 2255 was inadequate3 or ineffective to te st 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 dismiss ed the habeas petition for lack of jurisdiction , concluding that Bastien’s cl aims are cognizable pursuant to § 2255

. This appeal followed. II. We have juris diction under 28 U.S.C. § 1291. As recogni zed by the District Court, “[m]otions pursuant to 28 U.S.C . § 2255 are the presumptive means by which federal prisoners can challeng e the ir convictions or sentences[.]” Okereke v. United States , 30 7 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.3 d 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 § 225 5 proceeding from affording him a full hearing and adjudica tion 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 Bas tien’s underlying argument

-- that the judgment is void because the Eastern District of New Y ork lacks jurisdiction over him

-- challenges the validity of his4 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 doe s not raise a substantial question, we will affirm the judgment of the District Court

. To the extent that a certificate of appealability is require d in this matter, it is denied. Bastien’s outstandi ng motions are denied.