The opinion of the court was delivered by: Eduardo C. Robreno, J.
Anthony Mark Bianchi (Petitioner) is a federal prisoner incarcerated at USP-Marion in Marion, Illinois. Petitioner filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (§ 2255 Motion) arguing that he received constitutionally ineffective assistance at trial and was convicted under an unconstitutional statute. ECF No. 296.
For the reasons set forth below, the Court will deny and dismiss with prejudice the motion.
Petitioner was indicted in federal court for the following: conspiring to engage in illicit sexual conduct in foreign places in violation of 18 U.S. § 2423(e) (Count One); traveling abroad with the intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) (Counts Two, Four, Six, Eight, and Nine); engaging in illicit sexual activity in foreign places in violation of 18 U.S.C. § 2423(c) (Counts Three, Five, Seven, and Ten); and using a facility in foreign commerce to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Counts Eleven and Twelve). Superseding Indictment, ECF No. 31.
The indictment stems from allegations that Petitioner engaged in sexual activity with ten young teenage boys during five trips he took to Moldova, Romania, and Cuba between December 2003 and March 2005. Counts Two and Three are based on Petitioner's December 2, 2003, trip from Philadelphia to Moldova. Counts Four and Five are based on a second trip to Moldova beginning on January 17, 2004. Counts Six and Seven stem from his trip to Cuba starting December 17, 2004. Counts Eight and Nine relate to his trip to Romania beginning on February 24, 2005. Count Ten relates to his February 24, 2005 trip to Romania. All boys were under their respective countries' age of consent when the supposed acts took place. The Government avers that Petitioner's modus operandi was to travel to impoverished villages and befriend local youths by spending money on them and giving them gifts. Petitioner would then engage in sexual activity with the boys.
On August 3, 2007, a jury convicted Petitioner of all counts except Counts Six and Seven (the Cuba charges), which were dismissed during trial.*fn1 U.S. District Court Judge Bruce W. Kauffman sentenced Petitioner to 300 months of imprisonment, a lifetime of supervised release, a $50,000 fine, and a $1000 special assessment. J., ECF No. 285.
Petitioner appealed, alleging: (1) The government violated his constitutional rights by intentionally preventing a defense witness from appearing at trial; and (2) one of the statutes under which he was convicted, 18 U.S.C. § 2423(c), exceeded Congress's Commerce Clause authority. United States v. Bianchi, 386 F. App'x 156 (3d Cir. 2010), cert. denied, 131 S. Ct. 1044 (2011). The Third Circuit affirmed Bianchi's conviction. On the first issue, the court found that the evidence showed that Petitioner was not planning to call the individual in question as a witness and there would be no prejudice to Petitioner for the witness's absence. Id. at 159-60. On the second issue, the court determined that Congress did not overstep its bounds in enacting § 2423(c). Id. at 160-62.
On January 24, 2012, Petitioner filed this timely, counseled § 2255 Motion. He also submitted an amended memorandum of law in support of the § 2255 Motion. Am. Mem., ECF No. 303. The Government responded, Gov't's Resp. 1, ECF No. 56, and the matter is now ripe for disposition.
An evidentiary hearing regarding the merits of a prisoner's claim is necessary unless it is clear from the record, viewed in the light most favorable to the petitioner, that he is not entitled to relief. The Court must dismiss the claim "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." R. Governing § 2255 Proceedings for the U.S. Dist. Cts. 4(b).
Petitioner claims he received constitutionally ineffective assistance of counsel during his trial and at sentencing, and he also renews his constitutional challenge of § 2423(c). As to ineffective assistance of counsel, he has three claims. First, he avers that his counsel failed to object to the verdict sheet containing the initials, as opposed to the full names, of the minor victims. Second, he argues that his counsel did not investigate the defense that his penile implant failed at the time of the offenses. Third, he claims that his counsel was ineffective for not structuring a cogent argument for a variance at sentencing. Based on ...