Ronald J. Goldberg v. McCi Warden Ronald Bonaforte Warden

Pursuant to F.R.A.P. 43(c).*
BPS-243 NOT PRECEDENTIAL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
_______________________

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Because Goldberg is a federal prisoner sentenced under the U.S. Sentencing1
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
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). He argues that he should be allowed to1
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

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

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