Habeas corpus; Ineffective assistance of counsel; Failure to introduce the minor victim’s prior advertisements for sex work as exculpatory or impeachment evidence; FRE 412; Sex trafficking a minor in violation of 18 USC §§ 1591(a)(1) & (b)(1); Whether petitioner was entitled to an evidentiary hearing

[This appeal was from the ED-MI.] The court held that petitioner-Gardner’s trial counsel was not ineffective for failing to introduce evidence of the sex-trafficked minor’s (B.H.) prior prostitution ads because it made no difference to the charge against Gardner. Further, under FRE 412, “ads showing that B.H. voluntarily prostituted herself before reuniting with Gardner would not 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.” Thus, the court affirmed the district court’s denial of habeas relief. A jury convicted Gardner of sex trafficking a minor and production of child pornography for prostituting B.H., his 17-year-old girlfriend, and recording himself having sex with her. “‘§ 1591(a)(1) 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.’ . . . Gardner’s indictment alleged both theories” and the jury found him guilty of each. He argued his trial counsel was ineffective for failing to introduce into evidence ads B.H. allegedly placed on a website during the period when the two were out of touch. He argued that the evidence “would have ‘negated’ the causation element of” the trafficking a minor charge and could have been used to impeach B.H. But a “minor cannot consent, so apparent consent by a minor is no defense.” Gardner admitted he knew B.H. was a minor; thus, “so long as Gardner knowingly engaged in a trafficking act with respect to B.H. . . . which he knew would facilitate her participation in a commercial sex act, he is guilty.” The ads were irrelevant, and trial counsel was not ineffective for not introducing irrelevant evidence. As for the other trafficking theory, the government had to show 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.’” It did not have to prove that he convinced her to be a sex worker, only that at certain times, he coerced her to engage in commercial sex. Gardner also claimed that the ads could have been used on cross-examination for impeachment purposes. But the court found that the “ads do not contradict B.H.’s testimony, which, consistent with Rule 412, was focused on the time after she reconnected with Gardner. . . . As a result, counsel was not deficient for failing to confront B.H. with them.” Lastly, the court found that he was not entitled to an evidentiary hearing.