                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-24-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1571




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Recommended Citation
"Goldberg v. Bonaforte" (2005). 2005 Decisions. Paper 967.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/967


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BPS-243                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                          NO. 05-1571
                                       ________________

                                RONALD J. GOLDBERG,
                                               Appellant
                                           v.

     MCCI WARDEN RONALD BONAFORTE WARDEN; UNITED STATES
      MARSHALS SERVICE; ATTORNEY GENERAL OF THE UNITED
                  STATES ALBERTO R. GONZALES *
              _______________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 04-cv-03408)
                      District Judge: Honorable Anne E. Thompson
                     _______________________________________

                         Submitted For Possible Summary Action
                       Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                      May 19, 2005

   BEFORE: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed: June 24, 2005)
                               _______________________

                                      OPINION
                               _______________________




     *
         Pursuant to F.R.A.P. 43(c).
PER CURIAM

       Ronald J. Goldberg was convicted in the United States District Court for the

Southern District of Florida of Interstate Transportation of Stolen Securities and related

crimes. After an appeal, the court resentenced Goldberg to 125 months’ imprisonment.

Goldberg thereafter pursued various attempts at collateral relief, including an

unsuccessful motion pursuant to 28 U.S.C. § 2255.

       In July 2004 Goldberg filed a habeas corpus petition pursuant to 28 U.S.C. § 2241

complaining that the sentencing judge did not mention supervised release during the oral

pronouncement of his sentence and that his sentence is unconstitutional in light of

Blakely v. Washington, 124 S. Ct. 2531 (2004).1 He argues that he should be allowed to

proceed under section 2241 rather than section 2255 because his Blakely claim fits the

exception set forth in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).

       The District Court granted the government’s motion to dismiss for lack of

jurisdiction, explaining that section 2255 is not rendered inadequate or ineffective merely

by the petitioner’s inability to meet the stringent requirements for filing second or

successive section 2255 motions. The court relied in part on our decision in United States

v. Okereke, 307 F.3d 117 (3d Cir. 2002), where we explained that the Dorsainvil




       1
        Because Goldberg is a federal prisoner sentenced under the U.S. Sentencing
Guidelines, his claim is better expressed in terms of United States v. Booker, 125 S. Ct.
738 (2005) (applying Blakely to the federal guidelines). Of course, this makes no
difference to the outcome of this appeal.

                                              2
exception is reserved for those rare situations where an intervening change in the law

decriminalized the actions for which the prisoner was convicted and thus rejected the

appellant’s contention that a claim pursuant to Apprendi v. New Jersey, 530 U.S. 466

(2000), may be presented via section 2241. This appeal followed. The government has

moved for summary affirmance.2

       We agree with the District Court. Because Goldberg is challenging the sentence

imposed, and because he does not allege that the actions for which he was convicted have

since been decriminalized, the proper avenue for relief is section 2255. Accordingly, we

grant the government’s motion and will affirm the judgment of the District Court.




       2
      We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo. Roussos v.
Menifee, 122 F.3d 159 (3d Cir. 1997).


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