Michael Taylor Gardner v. United States of America

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0261p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL TAYLOR GARDNER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 23-1388
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
Nos. 2:16-cr-20135-1; 2:19-cv-12088—Gershwin A. Drain, District Judge.
Argued: October 29, 2024
Decided and Filed: November 25, 2024
Before: MOORE, COLE, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Katherine Clawson, CASE WESTERN RESERVE UNIVERSITY, Cleveland,
Ohio, for Appellant. Nhan Ho, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan,
for Appellee. ON BRIEF: Kelsey Moore, Kayla Tharp, Andrew S. Pollis, Melissa A. Ghrist,
CASE WESTERN RESERVE UNIVERSITY, Cleveland, Ohio, for Appellant. Nhan Ho,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Michael Gardner prostituted his 17-year-old girlfriend and
recorded himself having sex with her. A jury convicted Gardner of sex trafficking a minor in
violation of 18 U.S.C. § 1591(a)(1) and (b)(1), and production of child pornography, in violation
of 18 U.S.C. § 2251(a) and (e). The court sentenced him to 240 months’ imprisonment. Gardner
>

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unsuccessfully appealed his conviction. He then sought habeas relief under 28 U.S.C. § 2255.
The district court denied his petition, but granted a certificate of appealability as to: (1) whether
Gardner’s trial counsel was ineffective for failing to introduce the minor victim’s prior
advertisements for sex work as exculpatory or impeachment evidence and (2) whether Gardner is
entitled to an evidentiary hearing. For the reasons that follow, we AFFIRM.
I.
Michael Gardner met B.H., the victim, while the two were in high school. Gardner was a
senior, and B.H., a freshman. When Gardner moved away that same year, the two lost touch.
A few years later, on August 13, 2015, a Backpage.com account for B.H. was created
using B.H.’s email address. Backpage, now defunct, was a classified ads website that was often
used in prostitution. From mid to late August, multiple ads were posted from this account,
advertising B.H. for prostitution. These ads listed B.H.’s cell phone as the sole contact number.
Later that month, on August 27, 2015, Gardner and B.H. reconnected through Facebook.
They started dating soon after, and Gardner recorded a video of himself having sex with B.H.
B.H. was seventeen at the time, and Gardner knew it.
On August 28, the day after B.H. and Gardner reconnected on Facebook, Gardner sent a
text to B.H. asking, “How much money can I get from you?” R. 107 Trial Tr., PageID 1777.
B.H. testified that Gardner eventually became involved in trafficking her for money, though it’s
unclear just when. What we do know from the trial record is that, at some point after August 28,
Backpage ads advertising B.H. for prostitution listed Gardner’s phone number along with B.H.’s.
We also know that by October 6, Gardner was accessing Backpage from his phone. And by
October 8, the ads promoting B.H. for prostitution listed Gardner’s phone number as the sole
contact.1
1At trial, Gardner claimed that his phone activity and the use of his phone number proved nothing about his
responsibility for the ads. That’s because B.H.’s phone was lost (or stolen) at the time, and Gardner was loaning his
phone to her. But the government provided ample evidence of Gardner using his phone during the period when
B.H. was allegedly borrowing it.

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The Backpage ads aside, substantial evidence demonstrated Gardner’s involvement in
prostituting B.H. According to B.H., Gardner would respond to text messages from customers,
though sometimes B.H. would as well. When a customer called to discuss details, B.H. testified
that Gardner would have B.H. take the call “because dates don’t like when females have . . . a
pimp” or a guy “in control of what she’s doing.” R. 106 Trial Tr., PageID 1398. But Gardner
would have B.H. put the call on speaker so he could hear the price. And when each encounter
was over, Gardner would keep the money. Gardner also coordinated transportation for B.H. to
get to her dates and supplied her with drugs to make it through them.
Gardner’s supervision of B.H.’s prostitution did not stop there. While she was with a
client, B.H. would send updates to Gardner. For example, one text exchange reveals B.H. asking
Gardner about a particular sex act a client wished her to perform; Gardner told her to “do it,” and
then inquired, “How much he paying again?” R. 105 Trial Tr., PageID 1176–77. B.H. would
also let Gardner know when a client had left so he could join her in the hotel room. By October,
she and Gardner were living in hotel rooms used for and funded by B.H.’s prostitution.
At times, Gardner pressured B.H. to go on dates. If she refused, he would get angry and
would “put his hands around [B.H.’s] throat” and warn that “he could hurt [her] really bad” and
“get away with it.” R. 106 Trial Tr., PageID 1375–76. Fearing Gardner’s punishment, B.H.
would keep quiet and go on dates, even on days when she was not up for it.
On October 10, 2015, the whole business came to an end. B.H. had a “date” scheduled
that evening at the Red Roof Inn. Gardner offered his cousin $30 to drive B.H. to the hotel.
Gardner and two others rode along. When they dropped off B.H., Gardner gave her his phone.
The group then drove to the hotel across the street, and Gardner told B.H. where they were.
Unbeknownst to Gardner and B.H., the “date” that evening was with an undercover
agent. After B.H. and the agent agreed on a price for a sex act, police entered the hotel room.
Gardner immediately sent a string of agitated texts to B.H. from his friend’s phone. “Call me
now,” he demanded; “What’s going on?” he asked; “Answer my f—ing phone now,” he insisted.
R. 105 Trial Tr., PageID 1220. B.H. did not see or respond to his texts. Instead, she answered
some questions from the police, and they took her to the station. Police then apprehended and

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detained Gardner and his companions at the hotel across the street. They brought Gardner to the
police station but released him, and B.H., later that evening.
The next day, B.H. and Gardner went to Kentucky to stay with Gardner’s mother. The
two quickly began having arguments, during which Gardner became physically violent. B.H.
decided to leave. Her departure from Kentucky marked the end of her relationship with Gardner.
A grand jury indicted Gardner on two counts: (1) sex trafficking a minor in violation of
18 U.S.C. § 1591(a)(1) and (b)(1); and (2) production of child pornography, in violation of
18 U.S.C. § 2251(a) and (e). A jury convicted Gardner on both counts. With respect to the sex
trafficking count, the jury found both that Gardner knew that B.H. was a minor and that he had
used “force, threats of force, fraud, coercion[,] . . . or any combination of such means” to “cause
[her] to engage in a commercial sex act.” 18 U.S.C. § 1591(a).
After an unsuccessful direct appeal, Gardner filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. The district court denied the motion, but it granted Gardner a
certificate of appealability on two claims: (1) whether Gardner’s trial counsel was ineffective for
not introducing into evidence advertisements for B.H.’s sex work created before Gardner and
B.H. reconnected and using those ads to impeach B.H.; and (2) whether he is entitled to an
evidentiary hearing. Gardner now appeals.
II.
A.
“We review the denial of a § 2255 motion de novo.” Wingate v. United States, 969 F.3d
251, 255 (6th Cir. 2020). This holds true for ineffective assistance of counsel claims, though
they involve “mixed question[s] of law and fact.” Rodriguez-Penton v. United States, 905 F.3d
481, 486 (6th Cir. 2018).
Criminal defendants have a constitutional right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984). This right is violated if two conditions are
met: (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the
defendant. Id. at 687. To demonstrate deficient performance, the petitioner must show that

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counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’” the Sixth
Amendment guarantees. Id. To show prejudice, the petitioner must demonstrate a “reasonable
probability” of a different trial outcome in the absence of counsel’s errors. Id. at 694. At both
steps, Strickland sets a “high bar,” and “[s]urmounting [it] is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
Gardner believes his counsel performed inadequately by failing to introduce into
evidence ads placed on Backpage.com after August 13, when a Backpage account was created
for B.H., but before August 27, when Gardner and B.H. reconnected. We will refer to these as
the “August Backpage ads.” Gardner lays out two ways in which this omission harmed him.
First, Gardner claims that introducing the August Backpage ads would have “negated” the
causation element of 18 U.S.C. § 1591(a). Appellant Br. at 27. Second, Gardner says trial
counsel could have used these ads to impeach B.H., whose testimony was critical to the
Government’s case.
1.
We start with trial counsel’s failure to introduce the August Backpage advertisements as
“exculpatory” evidence. Appellant Br. at 27. These ads for prostitution were posted using the
Backpage account created on August 13 and linked to B.H.’s email address. The ads generally
listed B.H.’s phone number as the contact. Gardner says these ads prove that B.H. “was solely
responsible for her own sex-work advertisements.” Id. Had these ads been introduced into
evidence, Gardner argues, they would have negated the causation element of § 1591(a) by
showing that Gardner didn’t “cause[] [B.H.] to engage in sex work”; instead “[B.H.] started and
continued her sex work independently.” Id. at 22. As Gardner sees it, the “all-important
question [is] which came first, [B.H.’s] relationship with Mr. Gardner or her decision to engage
in sex work.” Id. at 27.
Gardner’s argument misunderstands the statutory scheme and our caselaw. As relevant
here, § 1591(a)(1) punishes anyone who, “in or affecting interstate or foreign commerce,”
knowingly:

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recruits, entices, harbors, transports, provides, obtains, advertises, maintains,
patronizes, or solicits by any means a person . . . knowing, or . . . in reckless
disregard of the fact, that means of force, threats of force, fraud, coercion . . . or
any combination of such means will be used to cause the person to engage in a
commercial sex act, or that the person has not attained the age of 18 years and
will be caused to engage in a commercial sex act.
So to obtain a conviction under § 1591(a)(1), the government had to prove that, during the period
covered by the indictment, Gardner:
(1) “in or affecting interstate or foreign commerce,”
(2) knowingly engaged in an act of trafficking—that is, “recruit[ing], entic[ing],
harbor[ing], transport[ing], provid[ing], obtain[ing], advertis[ing], maintain[ing],
patroniz[ing], or solicit[ing]” B.H.,
(3) with the knowledge either that “force, threats of force, fraud, [or]
coercion . . . w[ould] be used to cause” her “to engage in a commercial sex act,”
or that B.H. was under 18 and would “be caused to engage in a commercial sex
act.”
In other words, Ҥ 1591(a) criminalizes the sex trafficking of children (less than 18 years
old) with or without any force, fraud, or coercion, and it also criminalizes the sex trafficking of
adults (18 or older), but only if done by force, fraud, or coercion.” United States v. Afyare, 632
F. App’x 272, 279 (6th Cir. 2016). Gardner’s indictment alleged both theories of liability, and
the jury found Gardner guilty of each.
Sex trafficking of a minor. To establish the sex trafficking of a minor charge, the
government needed to show that Gardner trafficked B.H. knowing, or recklessly disregarding,
that she was under eighteen and “would be caused to engage in commercial sex acts.” United
States v. Mack, 808 F.3d 1074, 1081 (6th Cir. 2015). A minor cannot consent, so apparent
consent by a minor is no defense. Id. (citing United States v. Elbert, 561 F.3d 771, 777 (8th Cir.
2009)). The parties do not dispute that Gardner knew B.H. was a minor; he admitted that on the
stand. Therefore, so long as Gardner knowingly engaged in a trafficking act with respect to B.H.
(“harbor[ing], transport[ing], provid[ing],” etc.), which he knew would facilitate her participation
in a commercial sex act, he is guilty. As detailed above, the government introduced plenty of
evidence, independent of any advertisements, that Gardner did just that. It would make no
difference to this charge whether B.H. had previously advertised for, or willingly engaged in,

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prostitution. And a lawyer does not commit ineffective assistance by failing to introduce
irrelevant evidence. See Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004); see also Greer
v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (“[B]y definition, . . . counsel cannot be ineffective
for a failure to raise an issue that lacks merit.”). Accordingly, Gardner’s counsel was not
ineffective for failing to introduce the August Backpage ads to disprove Gardner’s responsibility
for trafficking a minor.
Sex trafficking through force, threats, fraud, or coercion. To establish causation on the
other sex trafficking theory, the government had to prove that Gardner knowingly engaged in a
trafficking act knowing that force, threats of force, fraud, or coercion “w[ould] be used to cause”
B.H. “to engage in a commercial sex act.” 18 U.S.C. § 1591(a)(1); United States v. Aldridge, 98
F.4th 787, 794 (6th Cir. 2024) (quoting Mack, 808 F.3d at 1080). Just one incident will do. See
United States v. Lacy, 904 F.3d 889, 896 (10th Cir. 2018) (upholding a conviction under
§ 1591(a)(1) based on one coerced commercial sex act). The government’s case was that, after
becoming involved in B.H.’s sex work, Gardner would threaten her into going on “dates” on
days when she did not feel like it. B.H. testified at trial that Gardner beat her several times a
week and that she feared abuse if she refused to go on “dates.” And, contrary to Gardner’s
reading of the statute, the jury could convict upon finding that Gardner used force or threats to
get B.H. to go on particular “dates”—it did not need to find that Gardner forced B.H. to begin
prostitution in the first place. See United States v. Roy, 781 F.3d 416, 420 (8th Cir. 2015) (“At
issue [in a § 1591(a)(1) case] is not recruiting an individual to engage in commercial sex for the
first time, but . . . [using] force, threats, fraud, or coercion to cause the victim to engage in
commercial sex.”).
The August Backpage ads could not have been used to “negate[]” this theory of
causation. Appellant Br. at 27. Our caselaw holds that, in sex trafficking cases under § 1591(a),
Federal Rule of Evidence 412 bars the use of prior acts of willing prostitution, unrelated to the
defendant, to raise the inference that a defendant’s use of force or threats “did not coerce” (or
cause) a victim to engage in commercial sex acts on another occasion. Mack, 808 F.3d at 1084;
see also United States v. Bixler, No. 21-5194, 2022 WL 247740, at *4 (6th Cir. Jan. 27, 2022).
So ads showing that B.H. voluntarily prostituted herself before reuniting with Gardner would not

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have been admissible to refute the government’s case that Gardner, on “particular occasions,”
forced or coerced B.H. to go on “dates” with clients. Bixler, 2022 WL 247740, at *4.
Indeed, the district court relied on Rule 412 in a pretrial ruling to exclude evidence of
B.H.’s “other acts of prostitution unrelated to [Gardner], before or after the dates alleged in the
indictment”—August 1, 2015, through October 31, 2015. R. 71 In Limine Op. & Order, PageID
669. Because the August Backpage ads were created between August 18 and August 22, the
district court’s in limine ruling technically did not cover them. But both parties agree that
Gardner did not reconnect with B.H. until August 27. So the logic of the district court’s order
still applies—the August Backpage ads constitute “evidence that [B.H.] engaged in other acts of
prostitution unrelated to” and prior to her involvement with Gardner. Id. Accordingly, had
Gardner’s lawyer attempted to introduce the Backpage ads as substantive evidence that B.H. had
not “be[en] caused” to engage in prostitution, see 18 U.S.C. § 1591(a), the district court would
have correctly excluded the ads under Rule 412. A lawyer does not commit ineffective
assistance by failing to introduce inadmissible evidence. Hodge v. Haeberlin, 579 F.3d 627, 644
(6th Cir. 2009). So Gardner’s counsel was not ineffective for failing to introduce the August
Backpage ads to disprove Gardner’s use of force or threats.
2.
Gardner next argues that his trial counsel’s performance was deficient for failing to
cross-examine B.H. using the August Backpage ads. Though Rule 412 prohibited counsel from
introducing the ads as substantive evidence, “not all evidence implicating a victim’s past sexual
activity falls within Rule 412(a).” United States v. Kettles, 970 F.3d 637, 642 (6th Cir. 2020). In
Kettles, for example, we held that Rule 412 did not forbid the defendant from “impeach[ing] [the
victim’s] credibility by showing that she had been untruthful regarding past allegations of sexual
assault.” Id. at 643; see also United States v. Willoughby, 742 F.3d 229, 234 (6th Cir. 2014).
Gardner says his counsel should have used the ads to impeach three statements that B.H.
made on cross-examination. First, Gardner says that the Backpage ads “would have flatly
contradicted” B.H.’s testimony that “[w]hen [she] got together with Michael in the summer of
201[5] [she] started doing prostitution,” but “not right away.” Appellant Br. at 14; R. 106 Trial

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No. 23-1388 Gardner v. United States Page 9
Tr., PageID 1451. Second, he says that the ads would have contradicted B.H.’s suggestion that
her prostitution was “[e]ntirely Michael’s idea.” R. 106 Trial Tr., PageID 1451. And third, the
ads would have contradicted B.H.’s testimony that she “never put the ads on Backpage” and that
it “was Michael that was doing it.” Id. at 1454. Gardner says that, because B.H. was the
government’s central witness, there is a reasonable probability that these hits to B.H.’s credibility
would have caused the jury to acquit him of all charges. We disagree.
First, it is not clear that B.H.’s testimony would have been contradicted by the August
Backpage ads, even assuming that B.H. posted them independently. The relevant exchange with
defense counsel appears below:
Q. When you got together with Michael in the summer of 2016 [sic], you started
doing prostitution?
A. Yes, but not right away.
Q. It was after a while?
A. Yeah.
Q. And it was Michael that got you to do this, it was not your idea?
A. Right. It wasn’t my idea to just start doing it again.
Q. Entirely Michael’s idea?
A. Right.
Q. And when you started doing this, did you immediately start with the idea that
we know you were using in October that year, that is, to use Backpage?
A. Okay. Wait. Can you repeat that question, please?
Q. Sure I can. When you first started out in the summer of 2015 to do
prostitution, because Michael was telling you to, did you start out by putting ads
on Backpage?
A. Yes, that’s where he—
R. 106 Trial Tr., PageID 1451–52.
The prosecutor then asked for a sidebar, seeking clarification of the timeline. The
prosecutor was concerned that defense counsel might be interpreting B.H.’s answers as referring
to “when she started prostituting completely” and that counsel would “then try to impeach her by
saying she prostituted before.” Id. at 1452. As the district court’s pretrial order already had

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established, counsel could not inquire about B.H.’s prior prostitution for substantive purposes.
So, during the sidebar, the court reminded Gardner’s counsel to “stay within the bounds”—that
is, to limit his questioning to when B.H. “started doing [prostitution] with the defendant.” Id. at
1453. Defense counsel assured the court that he was asking only about the time after B.H.
“started [prostituting] with [the] defendant.” Id. at 1452. And then he clarified that time frame
for B.H.:
Q. Okay. [B.H.], I’m sorry for that interruption. I want to make sure I’m
perfectly clear with you, because you may have had trouble with the way I asked
that question and I don’t want to confuse you.
A. That’s fine.
Q. We’re in the summer of 2015. You’ve re-met. Michael at first everything is
fine, as far as your testimony is concerned, then Michael started you doing
prostitution, that’s your testimony?
A. Yes.
Q. When Michael started you doing prostitution, did you start out putting ads on
Backpage?
A. Yes. He did start off putting ads on Backpage.
Q. All right. You corrected me in a way to say, yes, he started putting ads on
Backpage, not you started putting ads on Backpage?
A. Yes.
Q. Because you never put the ads on Backpage?
A. Right.
Q. It was Michael that was doing it?
A. Yes.
Q. Michael was making up the text. In other words, what goes on there, the
name, what you do, and stuff of that nature?
A. Correct.
Id. at 1453–54.
Given that defense counsel, consistent with the court’s order, asked B.H. only about the
time after August 27, when she “got together with” Gardner, it’s unlikely that B.H.’s testimony
could have been impeached by the August Backpage ads. Id. at 1451. B.H. did not testify, as
Gardner suggests, that her entire history of “sex work was all . . . Gardner’s idea.” Appellant Br.

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at 15. Instead, she testified that, measured from the time when she and Gardner reconnected, she
“started doing prostitution,” but “not right away.” R. 106 Trial Tr., PageID 1451. She testified
that, in that time frame, Gardner “got [her] to do [it].” Id. And she added that “[i]t wasn’t [her]
idea to just start doing it again,” thereby admitting that she had engaged in prostitution before.
Id. (emphasis added). She also testified that, after she and Gardner reconnected, “[w]hen
Michael started [her] doing prostitution,” he was the one who put the ads on Backpage. Id. at
1454. B.H. did not testify that she had “never” put any ads on Backpage, only that she had
“never” put the ads on Backpage that were the subject of the exchange. That B.H. may have
created her own Backpage ads before she reconnected with Gardner does not show that any of
this testimony is false, so it’s not clear how defense counsel could have used these ads to suggest
to the jury that B.H. was lying.
Perhaps the August Backpage ads would have had some impeachment value if, for
example, they had been substantially similar to those B.H. later claimed Gardner had composed
and posted. But the district court found that the language and “content of these advertisements is
quite different from the later ones listing [Gardner’s] phone number as the number to contact.”
R. 130 Dct. Ct. Op. & Order, PageID 2399. The August Backpage ads do not contradict B.H.’s
testimony, which, consistent with Rule 412, was focused on the time after she reconnected with
Gardner. See Mack, 808 F.3d at 1084. As a result, counsel was not deficient for failing to
confront B.H. with them.
B.
We next consider whether Gardner is entitled to an evidentiary hearing. We review a
district court’s denial of an evidentiary hearing in a habeas petition for abuse of discretion.
Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004).
An “evidentiary hearing is required to determine the truth” of a petitioner’s claims
“[w]hen a factual dispute arises in a § 2255 proceeding.” Ray v. United States, 721 F.3d 758,
761 (6th Cir. 2013) (quotation marks and citation omitted). But “bare conclusions or assertions
of innocence” do not warrant an evidentiary hearing. Wallace v. United States, 43 F.4th 595,
607 (6th Cir. 2022) (quotation marks and citation omitted). To establish a need for a hearing, the

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dispute “must concern a legally important fact.” Carson v. United States, 88 F.4th 633, 642 (6th
Cir. 2023) (quotation marks and citation omitted). If a favorable finding for the petitioner would
still not warrant relief, the court need not conduct a hearing. Id.; see also 28 U.S.C. § 2255.
Gardner argues that he is entitled to an evidentiary hearing for several reasons. First, he
wishes to question his trial counsel so that he can understand why counsel did not impeach B.H.
with the Backpage ads. But we are unconvinced of the impeachment value of these ads. So
there is no need to explore counsel’s reasoning; regardless of the evidentiary hearing’s finding,
Gardner would be “entitled to no relief.” 28 U.S.C. § 2255(b).
Gardner next seeks an evidentiary hearing to clarify “some uncertainty as to the specifics
of the evidence” available during discovery and admitted at trial. Appellant Br. at 41. What
specifics he seeks to determine, we do not know. Gardner points to no dispute of fact—let alone
a legally material one. This “[b]ald assertion[] . . . do[es] not provide sufficient ground . . . to
require an evidentiary hearing.” Thomas v. United States, 849 F.3d 669, 681 (6th Cir. 2017).
Finally, Gardner requests an evidentiary hearing to obtain his phone’s data. But this
request is, in effect, a request for discovery pursuant to Rule 6(a) of the Rules Governing § 2255
Proceedings. See id. at 680. The certificate of appealability did not authorize an appeal of any
discovery request, so we do not entertain Gardner’s appeal of that issue here.
* * *
Gardner’s counsel did not commit ineffective assistance by failing to introduce the
August Backpage ads and confront B.H. with them. And Gardner offers only conclusory
statements as to why he otherwise deserves an evidentiary hearing. The district court did not err
by denying Gardner an evidentiary hearing or by denying his § 2255 petition. We AFFIRM.

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