                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2007

Goldberg v. Fraser
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4076




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Recommended Citation
"Goldberg v. Fraser" (2007). 2007 Decisions. Paper 1210.
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DLD-194                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 06-4076
                                  ________________

                              RONALD J. GOLDBERG

                                           v.

                         WILLIAM FRASER, WARDEN;
                     UNITED STATES MARSHALS SERVICES
                            ALBERTO GONZALES;
                     UNITED STATES ATTORNEY GENERAL
                              ________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                             (D.C. Civ. No. 05-cv-03606)
                    District Judge: Honorable Anne E. Thompson
                                  ________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   April 12, 2007

               BEFORE: BARRY, AMBRO and FISHER, Circuit Judges

                                 (Filed April 25, 2007)

                                      OPINION
                                  ________________

PER CURIAM

      Ronald Goldberg appeals from the District Court’s order denying his petition for

habeas corpus under 28 U.S.C. § 2241. In his petition Goldberg challenged the Bureau of

Prisons’ (“BOP”) aggregation of two of his federal sentences. Because we determine that
the sentences were properly aggregated, we find that this appeal is lacking in arguable

legal merit and we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).

       The sentences that are subject of this petition began when Goldberg, on parole

from a previous federal conviction, was arrested in Florida on March 22, 1991. He was

tried in the United States District Court for the Southern District of Florida and convicted

of interstate transportation of stolen securities, devising a scheme to defraud a federally

insured financial institution, making false statements on an application for a bank loan,

possession of stolen securities, and attempted escape from a correctional center. The

District Court sentenced him to 150 months’ imprisonment. Goldberg appealed. Pending

the outcome of his appeal, Goldberg began serving his sentence in the United States

Prison in Lewisburg, Pennsylvania.

       While at Lewisburg, Goldberg was indicted in the United States District Court for

the Middle District of Pennsylvania of forging the signature of a United States Magistrate

Judge and making false statements. He was convicted and sentenced to 24 months’

imprisonment to run consecutive to any sentences that he was then serving. Goldberg

appealed that conviction as well.

       In 1995, Goldberg’s appeals were decided. On August 16, 1995, the Eleventh

Circuit Court of Appeals affirmed his Florida conviction, but vacated his sentence and

remanded the case to the District Court for re-sentencing. United States v. Goldberg, 60

F.3d 1536 (11th Cir. 1995). On October 16, 1995, the Third Circuit Court of Appeals

reversed the Middle District of Pennsylvania conviction. United States v. Goldberg, 67

                                              2
F.3d 1092 (3d Cir. 1995).

          Goldberg was retried in the Middle District and was again convicted on both

counts. On August 7, 1996, Goldberg was sentenced to 30 months’ imprisonment. After

noting the fact that Goldberg was being held for his Florida conviction, the District Court

ordered that “[t]he sentence for the instant offenses shall run consecutively to any

sentence the Defendant is now serving or for which he is being held.” (Hab. Pet. Ex A. at

2.) At this time Goldberg was awaiting re-sentencing for his Florida conviction.

          In 1998, Goldberg entered a sentencing agreement with the Government regarding

his Florida conviction. On April 21, 1998, Goldberg was sentenced in the Southern

District of Florida to 125 months’ imprisonment. According to the BOP, the sentence

began on December 18, 1992, the date of the original Florida sentence, and Goldberg

received 637 days of prior custody credit for the time between his arrest and conviction in

Florida. Pursuant to 18 U.S.C. § 3584, the BOP aggregated Goldberg’s Pennsylvania

sentence with his Florida sentence. As a result, Goldberg’s sentence was 155 months,

which began on December 18, 1992. He was also credited with 637 days of prior custody

credit.

          In 2002, Goldberg completed the custodial portion of this sentence and was

released.1 In 2003, while on supervised release, Goldberg was arrested in New York

City. He eventually pleaded guilty to wire fraud and was sentenced to 36 months’


   1
   Goldberg was released after 137 months’ imprisonment due to accumulated good
conduct credit.

                                              3
imprisonment by the United States District Court for the Southern District of New York.

After he was transferred to the District of New Jersey to face charges of violating the

terms of his supervised release,2 Goldberg filed this petition for habeas corpus.

       In his petition Goldberg claimed that the BOP should not have aggregated his

Pennsylvania and Florida sentences because he had completed serving the custodial

portion of his Pennsylvania sentence before the Florida sentence was imposed. He argued

that because the Florida sentence had been vacated at the time his Pennsylvania sentence

was imposed, the Pennsylvania sentence began to run immediately, and had already

expired by the time he had been re-sentenced in Florida in 1998. As a result, his total

term of imprisonment should have been only 125 months. Goldberg also claimed that he

had been improperly denied credit for completing a drug treatment program while

incarcerated. The District Court denied his petition and Goldberg appealed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a District

Court's decision to dismiss a § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002). Having granted Goldberg leave to proceed in forma

pauperis on appeal, we must now determine whether his appeal should be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal may be dismissed under

§ 1915(e)(2)(B) if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S.

319, 325 (1989).


   2
   Goldberg was eventually convicted of violating the terms of his supervised release
and sentenced to an additional 27 months of imprisonment.

                                             4
       Goldberg’s argument that BOP improperly calculated his sentences has no

arguable basis in law or fact. Goldberg received two sentences, one for 125 months and

another for 30 months, to be served consecutively. Pursuant to 18 U.S.C. § 3584, these

sentences should have been aggregated and treated as one 155-month sentence, running

from the date of his first conviction with credit for any time he spent in custody awaiting

his trial: this is exactly what the BOP did.

       For Goldberg’s contention that his Pennsylvania sentence had been served prior to

the imposition of his Florida re-sentence to be correct, we would have to find that, in

1996, after his retrial in Pennsylvania, he was not “serving or [] being held” for any other

sentence. However, at the time he was being held for another sentence, namely his

second Florida sentence. According to the BOP’s Sentence Computation Manual, if a

sentence has been vacated solely for the purposes of re-sentencing, then the date that the

new sentence begins will be the same as the date of the original sentence. BOP Program

Statement, Sentence Computation Manual, No. 5880.28, 1-18 (1999). The sentence

imposed in Florida in 1998 commenced on the same date as the original sentence,

December 18, 1992, and, therefore, Goldberg was being held pursuant to that sentence at

the time he was sentenced in the Middle District.

       Goldberg also argued that the Government is barred from running his

Pennsylvania sentence consecutively because of judicial estoppel. However, Goldberg

cannot identify a single instance where the Government has represented in a judicial

proceeding that he had served his entire 30 month sentence, or that any court relied on

                                               5
such a representation. See New Hampshire v. Maine, 532 U.S. 742, 750-51 (2000).

Accordingly, it was not estopped from presenting that argument in this case.

       Finally, Goldberg argued that he had been misled into believing that he had

completely served his Pennsylvania sentence at the time he entered into the Florida

sentencing agreement, and that he would not have entered into the agreement had he

known that he faced an additional 30-month sentence. However, this argument

challenges the validity of the Florida agreement and cannot be brought in this petition for

habeas corpus under § 2241. Rather, because this claim challenges the validity of the

sentence imposed, rather than the execution of that sentence, it must be brought as a

motion to vacate the sentence under 28 U.S.C. § 2255 in the Southern District of Florida.3

See Strollo v. Allredge, 463 F.2d 1194, 1195 (3d Cir. 1971).

       In sum, we readily conclude that the District Court correctly denied Goldberg’s

habeas petition. Because his appeal lacks merit, we will dismiss it under § 1915(e)(2)(B).

In light of our disposition of his appeal, Goldberg’s motion for appointment of counsel is

denied.




   3
    Goldberg’s claim that he has been denied credit for his participation in drug treatment
programs while incarcerated founders on his failure to provide any evidence that he did,
in fact, complete any of these programs.

                                             6
