2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-2011

Gary Bastien v. Ronnie Holt

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3720

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Recommended Citation

"Gary Bastien v. Ronnie Holt" (2011). 2011 Decisions. Paper 55.

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1

ALD-058 NOT PRECEDENTIAL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 
2

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 
3

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 
4

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.