NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BARRY THOMAS GOLDSBOROUGH, :

Civil Action No. 10-3275 (RBK)

Petitioner, :

v. : OPINION

DONNA ZICKEFOOSE, :

Respondent. :

APPEARANCES:

Petitioner pro se

Barry Thomas Goldsborough

FCI Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

KUGLER, District Judge

Petitioner Barry Thomas Goldsborough, a prisoner currently

confined at the Federal Correctional Institution at Fort Dix, New

Jersey, has submitted a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. The sole respondent is Warden

Donna Zickefoose.

Because it appears from a review of the Petition that this

Court lacks jurisdiction, the Petition will be dismissed.

I. BACKGROUND

Petitioner is presently confined pursuant to a sentence of

120 months’ imprisonment for violations of 18 U.S.C. § 2422(b),

attempting to entice minor to engage in illegal sexual activity,

Case 1:10-cv-03275-RBK Document 2 Filed 07/01/10 Page 1 of 6 PageID: 33
and 18 U.S.C. § 2252A(a)(5)(B), possession of child pornography. 

See United States v. Goldsborough, Crim. Nos. 06-0139 and 07-0083

(M.D. Tenn.) (judgment entered on Aug. 8, 2007). This Court can

locate no record of any direct appeal of the convictions or of

any motion to vacate, set aside, or correct sentence under 28

U.S.C. § 2255.

Here, Petitioner asserts that he is entitled to relief on

the following grounds:

GROUND ONE: ... Responding party’s authority to

restrain the liberty of the applicant has been

terminated by the action of the Fiduciary, Ellen Fine

Levine, offsetting, discharging, and settling any and

all claims of debts, obligations, and liabilities

associated with account no. 220741303, 3:06-cr-00139

and 3:07-cr-00083. ....

GROUND TWO: ... Responding party’s authority to

restrain the liberty of the applicant is null and void

as the Judgment in a Criminal Case is Void because it

was issued in violation of due process of law. ...

GROUND THREE: ... Responding party’s authority to

restrain the liberty of the applicant is null and void

as the Judgment in a Criminal Case is void because it

was issued without jurisdiction of the parties and

subject matter. ...

(Petition, ¶ 17 (June 15, 2010).) 

The Petition is accompanied by a more detailed statement of

facts and a “Fiduciary Appointment and Authorization” which

purports to appoint Ellen Fine Levine as a Fiduciary to execute

the settlement and closure of an account.

2

Case 1:10-cv-03275-RBK Document 2 Filed 07/01/10 Page 2 of 6 PageID: 34
II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in

relevant part as follows:

A court, justice or judge entertaining an

application for a writ of habeas corpus shall forthwith

award the writ or issue an order directing the

respondent to show cause why the writ should not be

granted, unless it appears from the application that

the applicant or person detained is not entitled

thereto.

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

A pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2255.

3

Case 1:10-cv-03275-RBK Document 2 Filed 07/01/10 Page 3 of 6 PageID: 35
III. ANALYSIS

Petitioner’s challenge to his conviction, pursuant to 28

U.S.C. § 2241, filed here in the district of confinement, is not

appropriate.

As noted by the Court of Appeals for the Third Circuit in In

re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), Section 2255 has

been the “usual avenue” for federal prisoners seeking to

challenge the legality of their confinement. See also Chambers

v. United States, 106 F.3d 472, 474 (2d Cir. 1997); Wright v.

United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977);

United States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997)

(challenges to a sentence as imposed should be brought under

§ 2255, while challenges to the manner in which a sentence is

executed should be brought under § 2241). Motions under § 2255

must be brought before the Court which imposed the sentence. See

28 U.S.C. § 2255.

Section 2255, however, contains a safety valve where “it

appears that the remedy by motion is inadequate or ineffective to

test the legality of [Petitioner’s] detention.” In Dorsainvil,

the Third Circuit held that the remedy provided by § 2255 is

“inadequate or ineffective,” permitting resort to § 2241 (a

statute without timeliness or successive petition limitations),

where a prisoner who previously had filed a § 2255 motion on

other grounds “had no earlier opportunity to challenge his

4

Case 1:10-cv-03275-RBK Document 2 Filed 07/01/10 Page 4 of 6 PageID: 36
conviction for a crime that an intervening change in substantive

law may negate.” 119 F.3d at 251. The court emphasized,

however, that its holding was not intended to suggest that § 2255

would be considered “inadequate or ineffective” merely because a

petitioner is unable to meet the stringent gatekeeping

requirements of § 2255. Id. To the contrary, the court was

persuaded that § 2255 was “inadequate or ineffective” in the

unusual circumstances presented in Dorsainvil because it would

have been a complete miscarriage of justice to confine a prisoner

for conduct that, based upon an intervening interpretation of the

statute of conviction by the United States Supreme Court, may not

have been criminal conduct at all. Id. at 251-52.

Here, Petitioner does not allege facts bringing his

conviction within the Dorsainvil exception. Petitioner can not

demonstrate that his circumstances constitute the sort of

“complete miscarriage of justice” that would justify application

of the safety-valve language of § 2255 rather than its

gatekeeping requirements. To the contrary, Petitioner’s

challenges to his conviction are within the scope of claims

cognizable on direct appeal or in a § 2255 motion in the district

of confinement. Section 2255 is not “inadequate or ineffective”

merely because Petitioner failed to timely challenge his

conviction by direct appeal, § 2255 motion, or other motions for

relief from judgment. Accordingly, this Court lacks jurisdiction

5

Case 1:10-cv-03275-RBK Document 2 Filed 07/01/10 Page 5 of 6 PageID: 37
to entertain this challenge to Petitioner’s conviction under

§ 2241. See Leger v. Zickegoose, 2010 WL 1930595 (D.N.J. May 12,

2010).

Whenever a civil action is filed in a court that lacks

jurisdiction, “the court shall, if it is in the interest of

justice, transfer such action ... to any other such court in

which the action ... could have been brought at the time it was

filed.” 28 U.S.C. § 1631.

Petitioner has not timely pursued his remedies in the court

of conviction. And the challenges presented here appear

nonsensical. Accordingly, it does not appear that it would be in

the interest of justice to transfer this Petition to the trial

court, as a possible § 2255 motion.

IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice for lack of jurisdiction. An

appropriate order follows.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: June 30, 2010 

6

Case 1:10-cv-03275-RBK Document 2 Filed 07/01/10 Page 6 of 6 PageID: 38