United States District Court, D. New Jersey
L. WOLFSON U.S. CHIEF DISTRICT JUDGE
Avrohom Goldstein (“Goldstein” or
“Petitioner”) is a federal prisoner proceeding
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. 6.) Petitioner filed a
reply. (ECF No. 7.) For the following reasons,
Petitioner's § 2255 motion is denied with prejudice.
A. The Underlying Criminal Proceeding
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. Goldstein,
Crim. No. 14-117, 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.
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.
March 11, 2014, Petitioner agreed to waive indictment and
pleaded guilty pursuant to a plea agreement with the
Government to one count of traveling in interstate commerce
to commit extortion, a crime of violence, in violation of 18
U.S.C. § 1952(a) and 18 U.S.C. § 2. Crim. No.
14-117, ECF No. 125. As part of the plea agreement,
Petitioner and the Government agreed to each 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. This waiver
applies to “any appeal, any collateral attack, or any
other writ or motion, . . . which challenges the sentence
impose 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
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 conduct for the
purpose of sentencing. Id. at 1.
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 the trial of certain
codefendants, United States v. Epstein, Crim. No.
14-287 (D.N.J.),  through testimony from Teitelbaum.
Bulmash, No. 16-7885, ECF Nos. 1-8, 3-1, 3-2, 3-3.
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.” Bulmash, No. 16-7885,
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. Both Teitelbaum and Chaimowitz were taken
to the hospital. Id. at 37. Teitelbaum alleged that
four of his teeth were broken result of the incident.
Id. at 63.
of the codefendants named in the Criminal Complaint-twelve in
total-began in November 2015. During the sentencing
proceeding of codefendant Moshe Goldstein, the Court made
some general comments regarding the nature of the crime
applicable to all defendants. Bulmash, No. 16-7885,
ECF No. 1-9, at 24-25. During Moshe Goldstein's
sentencing hearing, the Court also set forth factual findings
regarding the 2011 forced get-specifically that it
“involved not only threats but assaults as well. I
heard the testimony of one of the victims, the roommate, Mr.
Teitelbaum, of the husband and I will say here in open court
I do not credit all of his remarks which may have been
embellished, but there is no dispute that both victims
were restrained, tied up, and assaulted in some manner. That
is not disputed.” Id. at 28 (emphasis
was sentenced on November 19, 2015. Crim. No. 14-117, ECF No.
132. At Petitioner's sentencing, his counsel disputed
Teitelbaum's testimony at trial, stating that,
“[t]here were injures in the 2011 matter which are
subject to dispute. We would contend they were somewhat
embellished by the roommate in that particular case. That
still does not take away the fact that there were
injures.” Id. at 9. In weighing the §
3553 factors, I made the following findings regarding the
2011 forced get:
I'll start with, obviously, the 2011 incident in which
you were a participant as well. Again, I think for you and
the others that I have seen this week, that involved yourself
in the 2013 sting, the real problem here was it wasn't
your first time. You were at the 2011 incident, and you
understood that there was - there could be violence in these
situations. There was. There would be physical injury, which
there was, and yet you chose to involve yourself in 2013
In that 2011 incident - I know [defense counsel] was here on
Monday when I talked which is why he used some of my own
words about my comments about the testimony that I heard by
one of the victims, Mr. Teitelbaum, Who was the roommate of
the husband and not the intended victim. Also, I found some
of the things that he said from the stand, I found to be
exaggerated, but there are certain basic principles that are
not disputed which is that the husband and the roommate who
was not the one getting the forced get were both restrained
and both suffered some sort of injury, and I don't even
need to get to the level of injury.
Id. at 20-21. Ultimately, Petitioner was sentenced
to a 45-month term of imprisonment, below the Sentencing
Guidelines range of 51 to 63 months. Id. at 6-7, 24.
Petitioner did not file an appeal.
The § 2255 Motion
November 15, 2016, Petitioner, acting pro se, filed
the instant motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. (ECF No. 1.) In the Petition,
Petitioner asserts that “[n]ewly discovered evidence
has been uncovered demonstrating that [Teitelbaum] in a
related trial . . . lied during his trial testimony,
including his testimony related to when certain photographs
that were admitted into evidence were, in fact, taken, and
the nature and extent of his purported injuries.”
(Id. at 5.) Shortly after the Petition was filed,
Petitioner's trial counsel submitted a letter to the
Court stating that Petitioner relied on the § 2255
motion filed by codefendant Bulmash as his motion is
“equally applicable to” Petitioner. (ECF No. 3.)
support of his Petition, Petitioner relies upon an affidavit
of Testa Shaska (the “Shaska Affidavit”),
obtained and submitted to the Court by Bulmash. Shaska
interviewed Detective Joe Solomon, of the New York City
Police Department regarding the 2011 incident.
Bulmash, No. 16-7885, ECF No. 1-13, at 1. Detective
Solomon was assigned to investigate the 2011 incident. 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 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.
Answer, the Government argues that not only is this evidence
not “newly discovered” as this issue came out
during the cross-examination of Teitelbaum at trial, even if
it were, it would not entitle Bulmash to a new sentence. (ECF
No. 6, at 18-25.) The Government also requests that this
Court enforce the waiver of appeal and collateral attack
rights set forth in Petitioner's plea agreement.
(Id. at 26-34.)
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.
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.)
Government argues that Petitioner is not entitled to relief
under § 2255 because he waived his right to bring a
collateral attack motion by entering into the plea agreement.
Petitioner contends that the appeal and collateral attack
waiver in his plea agreement is not enforceable because
enforcement of the waiver would work a miscarriage of
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).
defendant's waiver 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.
Knowing and ...