HELLMAN v. UNITED STATES OF AMERICA

Filing 7

OPINION filed. Signed by Chief Judge Freda L. Wolfson on 5/20/2019. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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DAVID HELLMAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Civ. No. 16-8561 (FLW)

OPINION

WOLFSON, Chief Judge:
I.

INTRODUCTION

Petitioner David Hellman (“Hellman” or “Petitioner”) is a federal prisoner proceeding, through
counsel, with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 1.) The Government has opposed the motion. (ECF No. 5.) Petitioner filed a reply.
(ECF No. 6.) For the following reasons, Petitioner’s § 2255 motion is denied with prejudice and
a certificate of appealability will not issue.
II.
A.

BACKGROUND

The Underlying Criminal Proceeding

On October 10, 2013, Petitioner was arrested, along with seven others, pursuant to a
superseding criminal complaint (the “Criminal Complaint”), which charged him with one count of
conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c). United States v. Hellman,
Crim. No. 14-101, ECF No. 4 (D.N.J.). Petitioner’s arrest was effectuated at a warehouse in
Edison, New Jersey, during the execution of a sting operation by the Government (the “2013 Sting
Operation”). Id. at 2–3. The 2013 Sting Operation related to the Government’s investigation into
allegations that Petitioner and the other defendants named in the Criminal Complaint, all of whom

are Orthodox Jewish men, engaged in criminal means to facilitate Orthodox Jewish divorces. Id.
According to the Criminal Complaint, to effectuate an Orthodox Jewish divorce, a husband
must provide his wife with a document known as a “get.” Id. at 4. A get serves as documentary
proof of the dissolution of a marriage under Jewish law, and a divorce is not official until a get is
given to the wife by the husband. Id. Codefendants in this matter, Mendel Epstein, Martin
Wolmark, and Jay Goldstein, who were Orthodox Jewish rabbis, were accused of charging agunah,
women whose husbands would not provide gets, large sums of money to obtain gets from their
husbands by means of violence and threats of violence. Id. Petitioner was described in the
Superseding Complaint as a “tough guy” who would “participate in the actual kidnapping and
assault of the recalcitrant husbands to coerce them into giving the get.” Id. at 5.
On March 6, 2014, Petitioner agreed to waive indictment and pleaded guilty, pursuant to a
plea agreement with the Government, to a one-count information charging him with having
travelled in interstate commerce to commit extortion, a crime of violence, in violation of 18 U.S.C.
§ 1952(a). Crim. No. 14-101, ECF No. 125, at 1. As part of the plea agreement, both Petitioner
and the Government agreed to “waive certain rights to file an appeal, collateral attack, writ, or
motion after sentencing, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion
under 28 U.S.C. § 2255.” Id. at 4. Specifically, Petitioner agreed to waive his right to file an
appeal or collateral attack motion that “challenges the sentence imposed by the sentencing court if
that sentence falls within or below the Guidelines range that results from the agreed total
Guidelines offense level of 24.” Id. at 9.
While the charge to which Petitioner pleaded guilty related to his involvement in the 2013
Sting Operation, the Government’s agreement to not initiate any further proceedings against
Petitioner required that a 2011 forced get, in which he also participated, be considered as relevant

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conduct for the purpose of sentencing. Id. at 1–2.
The 2011 forced get occurred on August 22, 2011, when six men, including Petitioner,
entered the apartment of Usher Chaimowitz and his roommate, Menachem Teitelbaum, to
purportedly obtain a get from Chaimowitz. The facts of the 2011 forced get were adduced at trial
of certain codefendants in this matter, United States v. Epstein, Crim. No. 14-287 (D.N.J.), 1
through testimony from Teitelbaum. (See ECF Nos. 1-8, 5-1, 5-2, 5-3.) Teitelbaum testified that
on August 22, 2011, he awoke to six men in the apartment he shared with Chaimowitz “with a
punch to [his] face and [his] teeth being pulled, with [his] arms and legs bound.” (ECF No. 1-8,
at 20.) Chaimowitz’s arms and legs were also bound. (Id. at 21.) At some point, Teitelbaum
testified that he began to fight the intruders and they pushed his head into a wall and again bound
his arms and legs. (Id. at 22–24.) At the same time, Teitelbaum testified that the other intruders
were “beating up” Chaimowitz and “calling out to him all the time, give a get, give a divorce, to
your wife.” (Id. at 25.) Teitelbaum was eventually moved to the kitchen and the intruders
remained with Chaimowitz for about an hour before leaving the apartment. (Id. at 30–33.) After
the intruders left the apartment, Teitelbaum testified that he had Chaimowitz take a photo on his
cell phone of Teitelbaum while his arms and legs were still bound. (Id. at 34.) Teitelbaum then
took photos of Chaimowitz before calling the Shomrim, the Jewish community police, and the
Hatzolah, the volunteer Jewish first aid department. (Id. at 36.) 2 Both Teitelbaum and Chaimowitz

1

The Epstein trial was held between March 3, 2015 and April 21, 2015. See Crim. No. 14287 (D.N.J.).
2

At trial, Teitelbaum testified that while certain photos were taken immediately following
the incident, some were taken after he and Chaimowitz returned home from the hospital and others
were taken days after the incident. (See ECF No. 1-8, at 36–54.) The issue of when certain
photographs were taken was further explored on cross-examination. (See, e.g., ECF No. 5-1, at
102, 105–08; ECF No. 5-2, at 20–23, 41, 63–64; ECF No. 5-3, at 24–26.)
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were taken to the hospital. (Id. at 37.) Teitelbaum alleged that four of his teeth were broken result
of the incident. (Id. at 63.)
Petitioner was sentenced on November 17, 2015. (ECF No. 1-6.) At sentencing, this Court
made certain findings regarding the 2011 forced get in consideration of the § 3553 factors. (Id. at
32–34.) I specifically noted that:
[The] 2011 incident actually involved not only threats but assaults
as well. I note that [the Government] did reference the fact that I
said yesterday that I heard the testimony of one of the victims, the
roommate of the husband, and I said I did not credit all his remarks.
I think some of it was a bit fantastical and embellished. But there is
no dispute that both victims – the husband and the roommate, and
the roommate, who happened to be there because he lived there,
wasn’t even the object of this get, were restrained, were tied up, were
assaulted in some manner. The husband was ultimately taken to the
hospital.
And I do understand that there may have been a hope that there
would not be physical harm, but everyone who went into that room
understood that when you restrain individuals, when you are going
to threaten them, and that possibility existed, a real possibility, and
it occurred here. Because no one knew how it would actually play
out, and they all went in with that knowledge that force could be
used, and the recalcitrant husband could suffer harm.
(Id. at 33–34.) Ultimately, Petitioner was sentenced to a 44-month term of imprisonment, below
the Sentencing Guidelines range of 51 to 63 months. (Id. at 8, 38.)
B.

The § 2255 Motion

On November 16, 2016, Petitioner, acting through counsel, filed the instant motion under
28 U.S.C. § 2255. (ECF No. 1.) Petitioner asserts that he is entitled to relief under § 2255 based
on newly discovered evidence confirming that certain portions of Teitelbaum’s testimony at the
Epstein trial was false. Petitioner argues that because Teitelbaum’s testimony was a “material”
factor relied upon by this Court at sentencing, he is entitled to resentencing. (ECF No. 1-1, at 5.)
In support of his motion, Petitioner relies upon an affidavit (the “Shaska Affidavit”)
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submitted by codefendant Simcha Bulmash in support of his own motion under § 2255 for
resentencing. Bulmash v. United States, No. 16-7885, ECF No. 1-1. 3 Bulmash retained a private
investigator, Testa Shaska, who interviewed Detective Joe Solomon of the New York City Police
Department regarding the 2011 forced get. Bulmash, No. 16-7885, ECF No. 1-13. Detective
Solomon was assigned to investigate the 2011 incident. Id. As part of his investigation, Detective
Solomon inspected Teitelbaum and Chaimowitz’s apartment and interviewed both regarding the
incident. Id. The Shaska Affidavit sets forth the following details which Petitioner asserts is
“newly discovered” evidence regarding the veracity of Teitelbaum’s testimony:
5.
Detective Solomon remembered Mr. Teitelbaum’s
appearance on August 22, 2011 and recalled that Mr. Teitelbaum’s
face was not “mangled” and he did not appear to be missing any
teeth.
6.
Detective Solomon told me that there are no photographs in
the NYPD case file related to this incident. Detective Solomon also
informed me that, during the first interview of Mr. Teitelbaum on
August 22, 2011, he did not present Detective Solomon with any
photographs or state that any photographs existed related to the
incident.
7.
One of two days after the incident, according to Detective
Solomon, Mr. Teitelbaum arrived at the precinct and showed him
pictures which Mr. Teitelbaum represented were “recreations” of
the crime scene. Detective Solomon told me that he informed Mr.
Teitelbaum that he could not include those photographs in the case
file because they were not actual crime scene photographs.
Id. at 2. Shaska showed Detective Solomon two of the photos that were admitted at trial of
Teitelbaum and he “confirmed that these photos were the ones that Mr. Teitelbaum showed him .
. . and represented to be ‘recreations’ of the event.” Id.
The Government opposes Petitioner’s motion, arguing that Petitioner waived his right to

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Petitioner has additionally joined and adopted the arguments raised in Bulmash’s motion.
(ECF No. 1-1, at 16 n.11.)
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file a collateral attack motion in his plea agreement. (ECF No. 5, at 25–35.) The Government
further argues that even if that waiver were not enforced, Petitioner’s claim for resentencing based
on the Shasta Affidavit is frivolous and lacks merit. (Id. at 17–24.)
III.

LEGAL STANDARD

To grant relief on a federal prisoner’s motion to vacate, set aside or correct a sentence under
28 U.S.C. § 2255, the Court must find that “there has been such a denial or infringement of the
constitutional rights of the prisoner as to render judgment vulnerable to collateral attack.” 28
U.S.C. § 2255(b). “Section 2255 permits relief for an error of law or fact only where the error
constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (quoting United States v. Addonizio,
445 U.S. 178, 185 (1979)). Accordingly, a petitioner who attacks his sentence “based on some
error in the sentencing proceeding [must] allege (1) that the district court received ‘misinformation
of a constitutional magnitude’ and (2) that the district judge relied at least in part on that
misinformation.’” Id. (citing United States v. Spiropoulos, 976 F.2d 155, 163 (3d Cir. 1972)).
“In considering a motion to vacate a defendant’s sentence, ‘the court must accept the truth
of the movant’s factual allegations unless they are clearly frivolous based on the existing record.’”
United States v. Booth, 432 F.3d 542. 545 (3d Cir. 2005) (quoting Gov’t of V.I. v. Forte, 865 F.2d
59, 62 (3d Cir. 1989)). A district court “is required to hold an evidentiary hearing ‘unless the
motion and files and records of the case show conclusively that the movant is not entitled to
relief.’” Id. (quoting Forte, 865 F.2d at 62.)
IV.

DISCUSSION

The Government argues that Petitioner is not entitled to relief under § 2255 because he
waived his right to file any collateral attack motion in the plea agreement. Petitioner, however,

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maintains that enforcement of the collateral attack waiver would work a miscarriage of justice
because of the significant effect that Teitelbaum’s testimony had on this Court’s issuance of his
sentence.
The Third Circuit has held that “[c]riminal defendants may waive both constitutional and
statutory rights, provided they do so voluntarily and with knowledge of the nature and
consequences of the waiver.” United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008), abrogated
in part on other grounds, Garza v. Idaho, 139 S. Ct. 738 (2019). This includes the defendant’s
right to file an appeal or a collateral attack motion under 28 U.S.C. § 2255. United States v. Fazio,
795 F.3d 421, 425 (3d Cir. 2015).
A defendant’s waiver of his right to file an appeal or collateral attack motion is enforceable
so long as it was “entered into knowingly and voluntarily and [its] enforcement does not work a
miscarriage of justice.” Mabry, 536 F.3d at 237. While “a defendant bears the burden of
presenting an argument that would render his waiver unknowing or involuntary, a court has an
affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure
itself that its enforcement works no miscarriage of justice, based on the record before it.” Id. at
238.
A.

Knowing and Voluntary Waiver

Petitioner does not challenge the knowing and voluntary nature of his appeal and collateral
attack waiver. Nevertheless, the Court has “an independent obligation to conduct an evaluation of
the validity of a collateral waiver.” Mabry, 536 F.3d at 237. Thus, this Court must review the
record to ensure that Petitioner’s waiver of his collateral rights was, in fact, knowing and voluntary.
The language of the plea agreement is unambiguous in its waiver of Petitioner’s appellate
and collateral attack rights provided he received a sentence at or below the Guidelines range set

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forth in the plea agreement. The plea agreement plainly sets forth that Petitioner
voluntarily waives, the right to file any appeal, any collateral attack,
or any other writ or motion, including but not limited to an appeal
under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the sentencing court if that
sentence falls within or below the Guidelines range that results from
the agreed total Guidelines offense level of 24.
Crim. No. 14-101, ECF No. 125, at 9. The plea agreement further confirms that Petitioner
reviewed the agreement with his attorney and that he “understands this letter fully.” Id. at 6.
I confirmed that Petitioner entered into the appeal and collateral attack waiver knowingly
and voluntarily during the plea hearing:
THE COURT: Your plea agreement also provides that under certain
circumstances you are waiving or giving up your right to file an
appeal or collaterally attack the sentence imposed in this case.
Are you familiar with those?
THE DEFENDANT: Yes, your Honor.
THE COURT: Specifically, I’ll ask you some questions in that
regard at this time.
Do you understand that the law permits you and the government to
file an appeal of your sentence if either you or the government
believe that there had been an error?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that you also have a right, if you
think there has been an error, to file a post-conviction challenge to
your conviction or sentence?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that both you and the
government are giving up the right to file an appeal or postconviction challenge under certain circumstances that are set forth
in the plea agreement itself and in Schedule A to the plea agreement.
THE DEFENDANT: Yes, your Honor.

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THE COURT: Specifically, do you understand that if I impose a
term of imprisonment that falls within or below the Guideline range
that result from a Guideline offense level of 24, you cannot appeal
or challenge your sentence?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that the United States cannot
appeal if your prison sentence is within or above the Guideline
ranges that result from a Guideline offense level of 24?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that neither you nor the United
States can appeal claiming that I should not have accepted your
stipulations in the plea agreement?
THE DEFENDANT: Yes, your Honor.
THE COURT: Did you discuss this waiver of appeal and waiver of
your right to file for post-conviction relief with your attorney?
THE DEFENDANT: Yes, your Honor.
THE COURT: Are you satisfied with the explanations that he has
provided to you?
THE DEFENDANT: Yes, your Honor.
(ECF No. 1-5, at 16–17.)
Having reviewed the plea colloquy, the Court is satisfied that Petitioner’s waiver of his
right to file an appeal or collateral attack waiver was knowing and voluntary. Petitioner affirmed
to the Court during the plea colloquy that his counsel had explained to him the consequences of
the waiver and that he understood those consequences of entering into the plea agreement. This is
sufficient to confirm that Petitioner’s waiver was knowing and voluntary. See United States v.
Khattak, 273 F.3d 557, 563 (3d Cir. 2001) (holding that a waiver of the right to appeal is knowing
and voluntary where the sentencing judge inquired under Federal Rule of Criminal Procedure 11);
Muhammad v. United States, No. 08-0061, 2010 WL 2771772, at *3 (D.N.J. July 13, 2010); Colon
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v. United States, No. 05-123-2, 2009 WL 37487, at *2 (E.D. Pa. Jan. 5, 2009) (holding that
defendant’s waiver of his right to appeal or collaterally attack his conviction or sentence is
enforceable because there was no support in the record that he acted unknowingly or involuntarily).
B.

Miscarriage of Justice

To determine whether a miscarriage of justice would occur as a result of enforcement of a
waiver of appeal and collateral attack rights, courts consider, among other things, the following
factors:
[T]he clarity of the error, its gravity, its character (e.g., whether it
concerns a fact issue, a sentencing guideline, or a statutory
maximum), the impact of the error on the defendant, the impact of
correcting the error on the government, and the extent to which the
defendant acquiesced in the result.
Khattak, 273 F.3d at 563 (alteration in original) (quoting United States v. Teeter, 257 F.3d 14, 25–
26 (1st Cir. 2001)). A miscarriage of justice may occur where “enforcing a collateral attack waiver
would result in barring an appeal expressly preserved in the plea agreement” or where there are
“allegations that counsel was ineffective or coercive in negotiating the very plea agreement that
contained the waiver.” Mabry, 536 F.3d at 243. Moreover, “‘[i]t is not enough that an issue [is]
meritorious;’ after all, appellate waivers are intended to preclude review not just of frivolous
questions, but of difficult and debatable legal issues we would otherwise consider.” United States
v. Grimes, 739 F.3d 125, 130 (3d Cir. 2014) (alterations in original) (quoting United States v.
Castro, 704 F.3d 125, 136 n.6 (3d Cir. 2013)). Courts should employ “a common sense approach”
and “look to the underlying facts to determine whether a miscarriage of justice would be worked
by enforcing the waiver.” Mabry, 536 F.3d at 242–43.
To assess the first Khattak factor—the clarity and gravity of the alleged error—the Court
will briefly comment on the merits of Petitioner’s motion. Petitioner argues that the newly

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discovered evidence set forth in the Shaska Affidavit demonstrates that he is entitled to
resentencing because it shows that “Teitelbaum exaggerated and completely fabricated large
portions of his testimony in material ways.” (ECF No. 1-1, at 20.) Petitioner asserts that there
was no way he could have known the extent that Teitelbaum exaggerated his testimony prior to
sentencing. (Id. at 23.) Thus, because Petitioner contends that this Court made erroneous findings
of fact at sentencing, that have since been refuted by the Shaska Affidavit, there was a defect of
fundamental fairness at his sentencing. (See id. at 24.)
A motion for a new trial based on newly discovered evidence will be granted where the
following requirements are met:
(a) the evidence must be in fact, newly discovered, i.e., discovered
since trial;
(b) facts must be alleged from which the court may infer diligence
on the part of the movant;
(c) the evidence relief on, must not be merely cumulative or
impeaching;
(d) it must be material to the issues involved; and
(e) it must be such, and of such nature, as that, on a new trial, the
newly discovered evidence would probably produce an
acquittal.
United States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010). While the Third Circuit does not appear
to have determined what requirements must be met to entitle a petitioner to resentencing based on
newly discovered evidence, other courts have applied the same factors as for a new trial and
substituted the last factor for whether the newly discovered evidence “would probably result [in]
a more favorable sentence.” Swiss v. United States, Crim. No. 08-76, 2008 WL 820269, at *1
(W.D.N.C. Mar. 20, 2008) (quoting United States v. Corson, No. 01-228, 2002 WL 547213, at *3
n.2 (D. Maine Apr. 10, 2002)); see also Ajemian v. United States, 171 F. Supp. 3d 206, 211
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(S.D.N.Y. 2016) (ordering a hearing on amount of loss based on newly discovered evidence where
correction of alleged error would possibly entitle petitioner to a reduced sentence); Corson, 2002
WL 547213 (assuming “that the standard for newly discovered evidence in the context of a
resentencing hearing is identical to the standard for granting a new trial”). 4
The Shaska Affidavit does not entitle Petitioner to resentencing. As this Court determined
in its opinion in Bulmash, the information set forth in the affidavit is not “newly discovered”
because the information was revealed at the Epstein trial.

Teitelbaum’s credibility was a

significant issue at the Epstein trial and the issues raised in the Shaska Affidavit were dealt with
both on his direct and cross-examinations. Evidence is not considered “newly discovered” if
counsel knew, or could have known through reasonable diligence, of the evidence at the time of
sentencing. See Cimera, 459 F.3d at 461. There is no reason that Petitioner’s counsel could not
have obtained the information set forth in the Shaska Affidavit prior to sentencing. Indeed, like
Bulmash, Petitioner has offered no explanation for why his counsel did not seek out this
information sooner—either by reviewing the record of the Epstein trial or by contacting Detective
Solomon.

Simply because Petitioner conducted his investigation post-sentencing and this

4

Petitioner argues that this standard, which is substantially similar to the standard for a new
trial under Federal Rule of Criminal Procedure 33, is inapplicable to a timely motion under § 2255
based on newly discovered evidence because it imposes a diligence requirement. Petitioner argues
that because his Petition was timely filed, there is no “procedural due diligence or newly
discovered evidence threshold requirements” applicable to his claim. (ECF No. 6, at 10.) I
disagree. The diligence requirement for a newly discovered evidence claim relates not to a
petitioner’s diligence in presenting his claim to the court, but “whether the evidence at issue could
have been discovered before or at the time of trial with the exercise of reasonable diligence on
behalf of the defendant and/or his counsel.” United States v. Kelly, 539 F.3d 172, 182 (3d Cir.
2008) (citing United States v. Iannelli, 528 F.2d 1290, 1293 (3d Cir. 1976)). Indeed, diligence is
a key factor of this inquiry as the Third Circuit has held that “evidence is not ‘newly discovered’
if it ‘was [actually] known or could have been known by the diligence of the defendant or his
counsel.’” United States v. Cimera, 459 F.3d 452, 461 (3d Cir. 2006) (quoting United States v.
Bujese, 371 F.2d 120, 125 (3d Cir. 1967)).
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information is new to him does not render it “newly discovered” for the purpose of obtaining relief
under § 2255. See id.
Moreover, the Shaska Affidavit does not call into question any material testimony on which
I relied in issuing Petitioner’s sentence. The Shaska Affidavit calls into question the veracity of
two issues: (1) when the photographs of Teitelbaum were taken and (2) the extent of Teitelbaum’s
injuries. (See ECF No. 1-13.) These were not material issues I considered in sentencing Petitioner.
Indeed, the affidavit does not call into question the findings that I made at sentencing regarding
the facts underlying the 2011 forced get. Those facts are undisputed: Petitioner and six others
entered the apartment of Teitelbaum and Chaimowitz with the intent of obtaining a get from
Chaimowitz through the use of threatened and actual force. Petitioner and his codefendants,
carried out that intent. Petitioner admitted to these undisputed facts during his plea hearing:
THE COURT: On or about August 22nd, 2011, did you and a
number of accomplices go to a residence in Brooklyn, New York?
THE DEFENDANT: Yes, your honor.
THE COURT: Did you go to the residence in Brooklyn with the
intent of forcing a Jewish man, who I will refer to as Husband 1, to
give his wife a get?
THE DEFENDANT: Yes, your honor.
...
THE COURT: Did you and your accomplices intend to physically
confine or restrain Husband 1 in order to obtain the get?
THE DEFENDANT: Yes, your Honor.
THE COURT: Did you and your accomplices intend to threaten
Husband 1 with bodily injury in order to obtain the get?
THE DEFENDANT: Yes, your Honor.
THE COURT: Did you and/or your accomplices, in fact, restrain
Husband 1 to obtain the get?
THE DEFENDANT: Yes, your Honor.
THE COURT: Did you and/or your accomplices, in fact, threaten
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Husband 1 with bodily injury to obtain the get?
THE DEFENDANT: Yes, your Honor.
THE COURT: Did you and/or your accomplices, in fact, injure
Husband 1?
THE DEFENDANT: Yes, your Honor.
(ECF No. 1-5, at 27–28.)
I did not find Teitelbaum’s testimony credible and that I credited only certain undisputed
aspects of that testimony. The Shaska Affidavit does not call into question those findings in any
way.

At best, the Shaska Affidavit constitutes mere impeachment evidence that goes to

Teitelbaum’s credibility. This is not enough to grant Petitioner to a new sentence. See United
States v. Onque, 169 F. Supp. 3d 555, 581 (D.N.J. 2015) (observing that impeachment evidence is
insufficient to demonstrate that testimony given by a material witness was false for the purpose of
granting a new trial based on perjured testimony). Because this Court finds Petitioner’s basis for
relief under § 2255 lacking in merit, the first Khattak factor weighs in favor of enforcement of the
appellate waiver.
As in Bulmash, the remaining Khattak factors weigh in favor of enforcing the waiver. The
second and third factors—the impact on Petitioner and the Government weigh in favor of
enforcement. The impact of enforcing the appellate agreement ensures both Petitioner and the
Government receive the benefit of their bargain made by entering in the plea agreement. See
United States v. Abuhouran, 119 F. App’x 402, 404 (3d Cir. 2005). While Petitioner argues that
the impact on him would be severe as the “fundamental fairness” of his sentencing was allegedly
impacted by the Court’s reliance on Teitelbaum’s testimony, I disagree. As the Court has
explained, the Shaska Affidavit does not call into question any material testimony pertinent to
sentencing that would render Petitioner’s sentence unfair.
Moreover, the fourth Khattak factor—Petitioner’s acquiescence in the result—weighs in
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favor of enforcement of the appeal waiver. As set forth in detail above, Petitioner “fully acquiesced
in the plea agreement and the waiver of his collateral appeal rights.” See Jones v. United States,
No. 13-3748, 2016 WL 81253, at *5 (D.N.J. Jan. 7, 2016). Indeed, by assenting to the terms of
the waiver, Petitioner pled guilty to the lesser charge of extortion, as opposed to conspiracy to
commit kidnapping. Accord Mabry v. Shartel, 632 F. App’x 707, 711 (3d Cir. 2015).
A miscarriage of justice would not result if the Court enforced the waiver as set forth in
the plea agreement. Petitioner has not demonstrated any unusual circumstance which would
enable this Court to invalidate the waiver. Indeed, Petitioner’s motion “does ‘not implicate
fundamental rights or constitutional principles’” and his challenge to his below-the-Guidelines
range sentence “is precisely the type of appeal his appellate waiver was intended to foreclose.”
See Grimes, 739 F.3d 125, 131 (3d Cir. 2014). Accordingly, Petitioner’s § 2255 motion is denied.
V.

CERTIFICATE OF APPEALABILITY

Under 28 U.S.C. § 2253(c), a litigant may not appeal a final order in a § 2255 proceeding
unless the judge or a circuit justice issues a certificate of appealability (“COA”). That section
further directs courts to issue a COA “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also 28 U.S.C. § 2255(d). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In this case, the Court denies a certificate of appealability because jurists
of reason would not find it debatable that Petitioner is not entitled to relief.
VI.

CONCLUSION

For the foregoing reasons, Petitioner’s § 2255 motion is denied with prejudice. Although

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courts considering § 2255 motions are generally directed to hold evidentiary hearings, it is apparent
from the arguments before the Court and the record of the underlying criminal proceeding that,
regardless of the evidence adduced at such a proceeding, Petitioner would not be entitled to any
relief based on his motion. See Booth, 432 F.3d at 545. An appropriate order will be entered.

DATED: May 20, 2019

/s/ Freda L. Wolfson
FREDA L. WOLFSON
U.S. CHIEF DISTRICT JUDGE

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