DLD-352                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1698
                                       ___________

                                EUGENE HENRY IVES,

                                                   Appellant

                                             v.

                              WARDEN LORETTO FCI
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-16-cv-00043)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 21, 2016

        Before: CHAGARES, GREENAWAY, JR. and GARTH,1 Circuit Judges

                            (Opinion filed: October 26, 2016)

                                        _________

                                        OPINION*
                                        _________

1
  The Honorable Leonard I. Garth participated in the decision in this case, but died before
the opinion could be filed. This opinion is filed by a quorum of the court. 28 U.S.C. § 46
and Third Circuit IOP 12.1(b).
*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Appellant Eugene Henry Ives pleaded guilty in the United States District Court for

the Eastern District of Michigan to sexual abuse of a minor in violation of 18 U.S.C. §§

2243(a), 1151, and 1153. He was sentenced to a total term of imprisonment of 180

months, to be followed by five years of supervised release. There was no direct appeal.

Ives filed a motion to vacate under 28 U.S.C. § 2255 in September of 2015 that the

government moved to dismiss in November of 2015 on the grounds that Ives’s plea

agreement waived relevant appeals and collateral attacks on his conviction and sentence.

That matter remains pending in the District Court in Michigan.

       Meanwhile, Ives filed a petition for writ of habeas corpus under 28 U.S.C. § 2241

in the Western District of Pennsylvania. The petition asserts that the trial court never

acquired jurisdiction over his prosecution because of inadequate proof that the grand jury

made its return in open court with an adequate record of the number of grand jurors

present and concurring in the return. The District Court summarily denied the habeas

petition on the basis that Ives’s motion to vacate was pending and was the exclusive

means for mounting a collateral challenge to a conviction and sentence. Ives appeals.

       We will summarily affirm the order of the District Court denying Ives’s § 2241

petition because it clearly appears that no substantial question is presented by this appeal.

See Third Circuit LAR 27.4 and I.O.P. 10.6. The habeas petition cannot proceed for the

reasons given by the District Court. A motion to vacate sentence under 28 U.S.C. §

2255 is the presumptive means to challenge collaterally a federal conviction or sentence.
                                              2
See In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Application of Galante, 437 F.2d

1164, 1165 (3d Cir. 1971). We further agree with the District Court that Ives has made

no showing to support his stock assertions that application for relief to the Eastern

District of Michigan is “inadequate or ineffective.” See 28 U.S.C. § 2255(e).

       We will summarily affirm the order of the District Court denying the habeas

corpus petition.




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