Ivy v. Bolin

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Rashad R. Ivy,
Petitioner,
v.
William Bolin,
Respondent.
Case No. 25-CV-208 (PAM/JFD)
REPORT AND
RECOMMENDATION
Rashad R. Ivy, a state prisoner, seeks federal habeas corpus relief pursuant to 28
U.S.C. § 2254. In 2016, Mr. Ivy was convicted in Ramsey County District Court of ten
offenses including sex trafficking, criminal sexual conduct, and solicitation to practice
prostitution. His convictions were affirmed on appeal, but the Minnesota Court of Appeals
remanded for resentencing three times. Mr. Ivy also filed a petition for postconviction
relief, which was denied. In this federal habeas action, Mr. Ivy challenges the effectiveness
of his trial and appellate counsel. He also raises a constitutional challenge to Minnesota
Statute § 609.322, subdivision 1a, which prohibits sex trafficking and the solicitation of
prostitution. As set forth below, the Court finds that Mr. Ivy’s ineffectiveness-of-trial-
counsel claims and constitutional challenge are procedurally defaulted. The Court further
finds 	that 	Mr. 	Ivy’s 	ineffectiveness-of-appellate-counsel 	claim 	is 	without 	merit.
Accordingly, the Court recommends that Mr. Ivy’s habeas petition be denied.
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I. 	Background
In 2016, a jury found Mr. Ivy guilty of second-degree sex trafficking, conspiracy to
engage in sex trafficking in the second degree, third-degree criminal sexual conduct,
domestic assault by strangulation, and second-degree solicitation to practice prostitution.
State v. Ivy, 902 N.W.2d 652, 655–56, 658 (Minn. Ct. App. 2017) (“Ivy I”). He was
originally sentenced to a total of 700 months in prison. Id. at 658. Mr. Ivy raised several
arguments on direct appeal, including that his trial lawyer had been ineffective. Id. at 655,
667. The Minnesota Court of Appeals found the ineffective-assistance-of-trial-counsel
claim without merit. Id. at 667. The court affirmed the convictions but reversed and
remanded for resentencing. Id. Two more rounds of resentencing and remand followed.
See State v. Ivy, No. A18-1338, 2019 WL 2168772, at *1 (Minn. Ct. App. May 20, 2019)
(“Ivy II”); State v. Ivy, No. A19-1980, 2020 WL 3494345, at *1 (Minn. Ct. App. June 29,
2020) (“Ivy III”). Mr. Ivy’s final sentence was 433 months. See Ivy v. State, No. A22-0406,
2022 WL 16910967, at *1 (Minn. Ct. App. Nov. 3, 2022) (“Ivy IV”).
After the 2020 remand in Ivy III, Mr. Ivy filed a motion to remove the state district
judge. Ivy IV, 2022 WL 16910967, at *1. He also filed a petition for postconviction relief
and a notice of constitutional challenge to Minnesota’s sex-trafficking statute. Id.; Ivy v.
State, No. A23-0809, 2024 WL 2890829, at *1 (Minn. Ct. App. June 10, 2024) (“Ivy V”),
rev. denied (Oct. 15, 2024). The postconviction petition raised claims of judicial bias, a
conflict of interest between Mr. Ivy and his trial counsel, insufficient evidence at trial,
ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. Ivy
V, 2024 WL 2890829, at *1. Before the Ramsey County chief judge could rule on Mr. Ivy’s
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motion to remove the trial judge, the trial judge denied Mr. Ivy’s postconviction petition.
Ivy IV, 2022 WL 16910967, at *1. On appeal, the Minnesota Court of Appeals found the
trial judge erred in ruling on the postconviction petition while the motion to remove was
pending, and reversed and remanded. Id. at *2. On remand, the Ramsey County chief judge
assigned himself to Mr. Ivy’s case. Ivy V, 2024 WL 2890829, at *1. The chief judge denied
the postconviction petition and rejected Mr. Ivy’s constitutional challenge. Id. On appeal,
the Minnesota Court of Appeals found that Mr. Ivy was barred from bringing the
constitutional claim and all but one of the postconviction claims by State v. Knaffla, 243
N.W.2d 737, 741 (Minn. 1976).1 Ivy V, 2024 WL 2890829, at *2. The sole claim that was
not Knaffla-barred was the ineffective-assistance-of-appellate-counsel claim, and the
Minnesota Court of Appeals found that claim without merit. Id. at *3. The Minnesota Court
of Appeals denied review of Ivy V on October 15, 2014, and Mr. Ivy timely filed his federal
habeas petition on January 16, 2025.
Mr. Ivy raises six grounds for relief in his habeas petition: (1) that trial counsel had
a conflict of interest that undermined Mr. Ivy’s requests for a continuance of the trial and
for substitution of counsel; (2) that trial counsel failed to investigate and adequately prepare
and present a defense due to medical issues and feelings of being overwhelmed; (3) that
trial counsel did not hire an expert witness and investigator; (4) that trial counsel’s hearing
loss caused him to not object to prejudicial comments and misstatements at trial; (5) that
1 “The Knaffla rule provides that when a petition for postconviction relief follows a direct
appeal of a conviction, all claims raised in the direct appeal and all claims of which the
defendant knew or should have known at the time of the direct appeal are procedurally
barred.” Buckingham v. State, 799 N.W.2d 229, 231 (Minn. 2011).
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Minnesota Statute § 609.322, subdivision 1a, violates the Equal Protection Clause of the
Fourteenth Amendment2; and (6) that appellate counsel was ineffective for not raising the
previous five issues on direct appeal and for not seeking to stay the direct appeal so that he
could pursue interim postconviction relief. (Pet. at 16, 20, 26, 28, 32, 35, Dkt. No. 1.)
II. 	Legal Standards
Federal courts shall entertain a habeas corpus petition on “behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). A federal court will grant habeas relief where the state courts’ adjudication
“resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States,”
or where that adjudication “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1), (2).
A. 	Exhaustion
A federal court cannot grant a writ of habeas corpus to a state prisoner unless the
prisoner has exhausted all available state court remedies for his claims. See 28 U.S.C.
§ 2254(b)(1)(A). To properly exhaust a claim, a state prisoner “must give the state courts
2 “The Equal Protection Clause of the Fourteenth Amendment provides that no state shall
‘deny to any person within its jurisdiction the equal protection of the laws,’ U.S. Const.
amend. XIV, § 1, and it applies to the federal government through the Due Process Clause
of the Fifth Amendment.” New Doe Child #1 v. United States, 901 F.3d 1015, 1027 (8th
Cir. 2018).
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one full opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process” before seeking relief in federal court.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Minnesota, a prisoner’s claims must
be presented to both the Minnesota Court of Appeals and the Minnesota Supreme Court
before 	a 	federal 	court 	may 	entertain 	them. 	Jackson 	v. 	Beltz, 	No. 	20-CV-1978
(PAM/KMM), 2021 WL 1795635, at *3 (D. Minn. Apr. 5, 2021), R. & R. adopted, 2021
WL 1785228 (D. Minn. May 5, 2021) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(“[A] prisoner must ‘fairly present’ his claim in each appropriate state court (including a
state supreme court with powers of discretionary review) . . . .”)).
Proper exhaustion requires a prisoner to fairly present the federal dimension of his
claims to the state courts. See Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per curiam)
(“If state courts are to be given the opportunity to correct alleged violations of prisoners’
federal rights, they must surely be alerted to the fact that the prisoners are asserting claims
under the United States Constitution.”). The petitioner need not have spelled out every
nuance of a federal constitutional claim but must have stated enough to put the state courts
on notice of a federal claim. See McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997)
(stating that a petitioner fairly presents a federal claim in state court if he has “referred to
a specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue in a claim
before the state courts”) (cleaned up). If the petitioner did not fairly present their federal
claims in state court, those claims generally cannot be considered by a federal court
reviewing a habeas petition.
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A federal “habeas claim need not be an ‘exact duplicate’ of the one raised in the
state court proceedings, . . . but the petition must present the same legal and factual bases
to the federal courts that were presented to the state courts.” Ward v. Norris, 577 F.3d 925,
935 (8th Cir. 2009) (quotation omitted). Although a “federal claim cannot contain
‘significant additional facts such that the claim was not fairly presented to the state court,’
. . . closely related claims containing an ‘arguable factual commonality’ may be reviewed.”
Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997) (quotation omitted).
B. 	Procedural Default
When a petitioner’s federal claim was not fairly presented on direct appeal to each
level of the state courts, a federal court sitting in habeas must determine whether a
petitioner could still obtain a decision on the merits of his claim in state court. See McCall,
114 F.3d at 757. If the state’s procedural rules bar a petitioner from requesting a ruling on
the merits of his federal claim, that claim is considered procedurally defaulted. See id.
In Minnesota, state “postconviction courts will not consider claims that were known
at the time of appeal and not raised.” Jackson, 2021 WL 1795635, at *6. Under Minnesota
law, “where direct appeal has once been taken, all matters raised therein, and all claims
known but not raised, will not be considered upon a subsequent petition for postconviction
relief.” Knaffla, 243 N.W.2d at 741.
A federal court may not entertain a habeas petition for a procedurally defaulted
claim unless the petitioner shows cause for the default and actual prejudice caused by the
alleged violation of federal law, or that a fundamental miscarriage of justice would result
if his claim were not considered. See McCall, 114 F.3d at 757. The latter exception “is only
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available to a petitioner who demonstrates that a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Id. (cleaned up).
C. 	Ineffective Assistance of Counsel
Under Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner who
claims ineffectiveness of counsel must demonstrate both that counsel’s performance was
deficient and that he was prejudiced by the deficiency. Id. at 692. The proper measure of
attorney performance remains simply reasonableness under prevailing professional norms.
Id. at 688. Reasonableness is “viewed as of the time of counsel’s conduct,” not in hindsight.
Id. at 690. An attorney’s “strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable,” whereas “strategic
choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.” Id. at
690–91. Counsel’s “particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. at 691. But even when an error is professionally unreasonable,
setting aside the judgment is not warranted if the error did not affect the outcome. Id. The
test for prejudice requires the defendant to “show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
The question for this Court, on habeas review, is not whether “the state court’s
determination under the Strickland standard was incorrect but whether the determination
was unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S.
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111, 123 (2009) (cleaned up). “A state court must be granted a deference and latitude that
are not in operation when the case involves review under the Strickland standard itself.”
Harrington v. Richter, 562 U.S. 86, 101 (2011). Thus, in evaluating a Strickland claim
under the § 2254(d)(1) standard, the Court undertakes a “doubly deferential judicial
review.” Knowles, 556 U.S. at 123.
III. 	Discussion
A. 	Ineffectiveness-of-Appellate-Counsel Claim
The 	Court 	begins 	its 	discussion 	with 	the 	ineffective-appellate-counsel 	claim
because its resolution affects the other claims.
On appeal from the denial of his postconviction petition, Mr. Ivy claimed that his
appellate counsel was not effective because he did not “(1) argue prosecutorial misconduct,
(2) move to stay the direct appeal in order to pursue postconviction relief, (3) argue
ineffective assistance of trial counsel, and (4) challenge the constitutionality of the sex-
trafficking statute.” See Ivy V, 2024 WL 2890829, at *3. Mr. Ivy made comparable
arguments in his petition for review to the Minnesota Supreme Court. (See Resp’t’s App’x
at 774–75, 777–78, Dkt. No. 23-1.) The Court finds that these postconviction claims are
factually and legally similar to the habeas claims Mr. Ivy now advances. Respondent
concedes the ineffectiveness-of-appellate-counsel claim was properly exhausted in state
court. (Resp’t’s Mem. at 19, Dkt. No. 20.)
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1. 	Appellate Counsel’s Omission of a Prosecutorial-Misconduct
Argument
Mr. Ivy acknowledges that his appellate counsel raised certain prosecutorial-
misconduct arguments on direct appeal. (Pet. at 35.) Appellate counsel argued that the
prosecutor committed misconduct by referring in the closing argument to inadmissible
evidence about why a certain witness did not testify at trial and by telling the jury, “Snitches
who are bitches totally end up in ditches.” (Id.) Mr. Ivy contends that his appellate counsel
should have also argued that the prosecutor mentioned facts that were not admitted into
evidence and misstated evidence in her closing argument. (Id.)
Mr. Ivy presented this aspect of the prosecutorial-misconduct claim in his petition
for postconviction relief. (Resp’t’s App’x at 499–501, Dkt. No. 22-2.) Ruling on the
petition, the state district court found that appellate counsel made the prosecutorial-
misconduct arguments he found meritorious, in the exercise of his professional judgment,
and Mr. Ivy did not overcome the strong presumption that appellate counsel acted
reasonably. (Resp’t’s App’x at 628, Dkt. No. 23-1.) The Minnesota Court of Appeals
declined to “second-guess appellate counsel’s strategic decisions” and determined that
appellate counsel was not ineffective. Ivy V, 2024 WL 2890829, at *3. The court also
pointed out that appellate counsel had made successful arguments in each of three earlier
appeals that led to a significantly reduced sentence. Id.
Here, in this habeas action, Mr. Ivy has not shown that the state courts unreasonably
applied, or issued a decision contrary to, clearly established federal law. It was not
unreasonable for the state courts to conclude that appellate counsel reasonably exercised
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his professional judgment and made the prosecutorial-misconduct arguments he believed
were meritorious and had the best chance of success. After all, appellate counsel had made
successful arguments in three earlier sentencing appeals on Mr. Ivy’s behalf, and although
those appeals involved sentencing, the three appeals combined did result in a 267-month
reduction in Mr. Ivy’s sentence. Mr. Ivy also has not shown that appellate counsel’s
omission 	of 	his 	preferred 	prosecutorial-misconduct 	argument 	was 	professionally
unreasonable. Indeed, Mr. Ivy could have made the argument in his pro se supplemental
brief on direct appeal, but he did not, thus indicating it was not a meritorious argument.
Finally, Mr. Ivy has not shown that the outcome of the appeal probably would have been
different if his appellate lawyer had argued that the prosecutor mentioned facts that were
not admitted into evidence and misstated evidence in her closing argument. Addressing the
prosecutorial-misconduct arguments that were made in Mr. Ivy’s direct appeal, the
Minnesota Court of Appeals stated that “the evidence against appellant was very strong.
Victim after victim testified that appellant lured her into a sexual relationship before
convincing her to prostitute for him.” Ivy I, 902 N.W.2d at 663. Other witnesses “testified
consistently with the victims about how appellant masterminded his sex-trafficking
scheme.” Id. at 664. Mr. Ivy has not shown a reasonable probability that the Minnesota
Court of Appeals would have decided otherwise if only his appellate counsel had made one
more prosecutorial-misconduct argument.
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2. 	Appellate Counsel’s Omission of Ineffective-Assistance-of-Trial-
Counsel Arguments
Mr. Ivy argues that his appellate counsel was ineffective because he did not argue
that Mr. Ivy’s trial counsel was ineffective. Mr. Ivy asserts that his appellate counsel should
have made the following arguments about trial counsel: (1) that trial counsel had a conflict
of interest that undermined Mr. Ivy’s request for a continuance and for substitution of
counsel; (2) that trial counsel failed to investigate and adequately prepare and present a
defense, due to counsel’s medical issues and feelings of being overwhelmed; (3) that trial
counsel did not hire an expert witness or an investigator; and (4) that trial counsel’s hearing
loss caused him to not object to prejudicial comments and misstatements at trial. (Pet. at
16, 20, 26, 28.)
Mr. 	Ivy 	presented 	these 	ineffective-trial-counsel 	issues 	in 	his 	petition 	for
postconviction relief, as well as the argument that appellate counsel was ineffective for not
raising them on appeal. (Resp’t’s App’x at 457–79, Dkt. No. 22-1; Resp’t’s App’x at 499–
502, Dkt. No. 22-2.) The state district court found the ineffective-trial-counsel issues barred
by Knaffla because Mr. Ivy could have raised them on direct appeal; the court also found
the claims without merit. (Resp’t’s App’x at 616–24, Dkt. No. 23-1.) The state district court
found the ineffective-appellate-counsel claim meritless because in order to show that
appellate counsel’s performance was deficient in this particular respect Mr. Ivy had to first
show that trial counsel’s performance was deficient, and he could not do so because the
ineffective-trial-counsel claims were barred by Knaffla. (Resp’t’s App’x at 626, Dkt. No.
23-1.) The Minnesota Court of Appeals agreed that the ineffective-trial-counsel claims
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were barred by Knaffla and pointed out that Mr. Ivy had challenged the effectiveness of his
trial counsel in his pro se supplemental brief on direct appeal. Ivy V, 2024 WL 2890829, at
*2. As to Mr. Ivy’s appellate counsel, the Minnesota Court of Appeals agreed with the
district court that, where a postconviction petitioner fails to show that trial counsel was
ineffective, then a claim of ineffectiveness of appellate counsel based on a failure to assert
that trial counsel was ineffective also fails. Id. at *3. And even if Mr. Ivy’s ineffective-
trial-counsel claims were not barred, the appellate court found his appellate counsel
properly exercised his independent judgment in deciding which claims to pursue. Id.
Mr. Ivy has not shown that the state courts unreasonably applied, or issued a
decision contrary to, clearly established federal law with respect to this aspect of his
ineffective-appellate-counsel claim. Some of Mr. Ivy’s ineffective-trial-counsel claims
were barred by Knaffla because he could have raised them on direct appeal, and he did not.
In Mr. Ivy’s pro se supplemental brief filed in the Minnesota Court of Appeals on direct
appeal, he argued that his trial counsel was ineffective because counsel failed to identify
issues and authorities, did not obtain witnesses or evidence on Mr. Ivy’s behalf, did not
challenge the sufficiency of the evidence presented to “aggravate the sentence,” and did
not answer Mr. Ivy’s notarized letters. (Resp’t’s App’x at 104, Dkt. No. 21-1.) The
Minnesota Court of Appeals found these arguments without merit. Ivy I, 902 N.W.2d at
667. The state postconviction courts’ determination that Mr. Ivy’s other ineffective-trial-
counsel claims were barred by Knaffla because they also could have been raised on direct
appeal in Mr. Ivy’s pro se supplemental brief was not contrary to, or an unreasonable
application of, any clearly established federal law. The state courts’ determination that the
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ineffective-trial-counsel claims Mr. Ivy did raise were also barred by Knaffla was not
contrary to, or an unreasonable application of, any clearly established federal law, because
Mr. Ivy did not fairly present those claims to the Minnesota Supreme Court.
The state courts’ determination that Mr. Ivy was barred from showing that trial
counsel was ineffective meant that he was foreclosed from showing that his appellate
counsel was ineffective for failing to assert his trial counsel was ineffective. Mr. Ivy has
not shown this was contrary to, or an unreasonable application of, any clearly established
federal law.
Mr. Ivy also has not shown that appellate counsel’s performance was deficient or
that the outcome of the appeal would have been different if appellate counsel had
challenged the effectiveness of trial counsel. Even though the state district court found the
ineffective-trial-counsel claims barred by Knaffla, the court found in the alternative that
Mr. Ivy did not satisfy Strickland or show a Sixth Amendment violation. (See Resp’t’s
App’x at 616, 618, Dkt. No. 23-1.) With respect to the alleged conflict-of-interest
argument, the court found that Mr. Ivy had not identified an actual conflict, only differences
in litigation strategy. (Resp’t’s App’x at 617–18, Dkt. No. 23-1.) Thus, the court found that
Mr. Ivy established neither a Sixth Amendment violation nor ineffectiveness of trial
counsel. Mr. Ivy has not shown that conclusion to be contrary to, or an unreasonable
application of, clearly established federal law or based on an unreasonable determination
of fact.
As to matters such as the investigation of evidence and defenses, the failure to hire
an expert witness or investigator, the extent of counsel’s preparation, and counsel’s medical
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issues and hearing loss, the postconviction court found that Mr. Ivy did not show that his
counsel’s performance fell below an objective standard of reasonableness or that a
reasonable probability of a different outcome existed but for counsel’s performance.
(Resp’t’s App’x at 619–24, Dkt. No. 23-1.) The court explained that Mr. Ivy’s preferred
trial strategies, including hiring an expert and pointing out inconsistencies in witness
testimony, would not have resulted in a different outcome. (Id. at 620–21.) Trial counsel
gave opening and closing statements, cross-examined every prosecution witness, moved
for a judgment of acquittal after the state rested, and asked the jury to find Mr. Ivy not
guilty. (Id. at 621.) Mr. Ivy did not identify any exculpatory evidence that counsel failed to
introduce. (Id.) Trial counsel’s adjustment of his hearing aid or request for something to be
repeated did not mean he did not hear the evidence at trial. (Id. at 620.) With respect to the
expert, the State presented no scientific evidence or expert testimony; rather, the case was
presented through multiple victims’ testimony about how they were recruited into Mr. Ivy’s
prostitution scheme. (Id. at 622.) Mr. Ivy did not show that a defense expert would have
affected the outcome of the case. (Id.) The postconviction court also found false Mr. Ivy’s
assertion that trial counsel did not have the initial police statement from one of the victims,
pointing out that counsel used it at trial. (Id. at 623.) Trial counsel was also aware of and
challenged inconsistent statements made by witnesses. (Id.)
The postconviction court’s conclusions about the effectiveness of trial counsel were
not contrary to or an unreasonable application of Strickland or Sixth Amendment
jurisprudence, nor did the court make an unreasonable determination of fact. Therefore,
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Mr. Ivy is not entitled to habeas relief on the ground that appellate counsel was ineffective
for not arguing that Mr. Ivy’s trial counsel was ineffective.
3. 	Appellate Counsel’s Failure to Argue that Minnesota Statute
§ 609.322, Subdivision 1a, Is Unconstitutional
Mr. Ivy argues that his appellate counsel was ineffective because he did not
challenge the constitutionality of Minnesota Statute § 609.322, subdivision 1a. Mr. Ivy
presented this issue in his petition for postconviction relief. (Resp’t’s App’x at 499, 501,
Dkt. No. 22-2.) The state district court found that Mr. Ivy could have challenged the
constitutionality of the statute before he was convicted or during his direct appeal, but he
did not. (Resp’t’s App’x at 572, Dkt. No. 23.) The court also determined that the
constitutional challenge was meritless and that appellate counsel chose to present only the
most meritorious claims on appeal. (Resp’t’s App’x at 627, Dkt. No. 23-1.) The Minnesota
Court of Appeals agreed that the constitutional challenge was meritless, that appellate
counsel’s decision not to challenge the statute was based on a reasonable conclusion that
the argument would not succeed, and that counsel’s decision did not prejudice Mr. Ivy. Ivy
V, 2024 WL 2890829, at *3.
Mr. Ivy has not shown that the state courts unreasonably applied, or issued a
decision contrary to, clearly established federal law as to this aspect of his ineffective-
appellate-counsel claim. In his postconviction petition, Mr. Ivy based his constitutional
challenge 	on 	the 	argument 	that 	Minnesota 	Statute 	§ 	609.322, 	subdivision 	1a,
“disproportionately impacts African-Americans and other racial minorities.” (Resp’t’s
App’x at 496, Dkt. No. 22-2.) Upon finding that appellate counsel could have reasonably
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concluded that the constitutional challenge was meritless, the state district court pointed
out that the Minnesota Court of Appeals had rejected a similar challenge to a similar
subdivision of Minnesota Statute § 609.322: subdivision 1(a)(2). (Resp’t’s App’x at 627
(citing Ward v. State, A12-1894, 2013 WL 2372177 (Minn. Ct. App. June 3, 2013).)3 Ward
found that Minnesota Statute § 609.322, subdivision 1(a)(2), did not violate equal
protection because “the statute does not classify persons based on race, and Ward has
presented no statistical data or other evidence to support his assertion that the statute
disproportionately impacts African Americans or other racial minorities.” Ward, 2013 WL
2372177, at *2.
Mr. Ivy argues that, unlike Mr. Ward, he has statistical evidence that subdivision
1(a) has a disproportionate impact, and his appellate attorney should have investigated and
discovered that evidence for himself. Mr. Ivy provides monitoring data from the Minnesota
Sentencing Guidelines Commission for convictions of sex trafficking in the second degree
under Minnesota Statute § 609.322, subdivision 1a, which shows that Black offenders
accounted for 73% of offenders sentenced under that subdivision between 2011 and 2019.
(Pet. Ex. E3, Dkt. No. 7.) However, even accepting this data at face value, “disparate
impact alone is insufficient to show an equal protection violation; instead, proof of
discriminatory intent or purpose is required.” United States v. Ronning, 6 F.4th 851, 853
3 The defendant in Ward was convicted of violating subdivision 1(a)(2), which prohibits
promoting the prostitution of an individual under the age of 18 years. Minn. Stat.
§ 609.322, subd. 1(a)(2). Mr. Ivy was convicted of violating subdivision 1a(1), which
prohibits the solicitation or inducement of an individual to practice prostitution, and 1a(4),
which prohibits engaging in the sex trafficking of an individual. Minn. Stat. § 609.322,
subd. 1a(1), (4).
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(8th Cir. 2021) (citing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979);
Washington v. Davis, 426 U.S. 229 (1976); City of Cuyahoga Falls v. Buckeye Cmty. Hope
Found., 538 U.S. 188, 194 (2003)). Mr. Ivy has not presented evidence of a discriminatory
intent or purpose in the enactment of Minnesota Statute § 609.322, subdivision 1a, such
that his appellate counsel should have found a constitutional challenge meritorious.
Therefore, Mr. Ivy has not shown that the state district court’s conclusion that the
constitutional challenge lacked merit violated clearly established federal law. Nor has he
shown that appellate counsel’s performance was objectively unreasonable because counsel
did not challenge the constitutionality of Minnesota Statute § 609.322, subdivision 1a.
The Minnesota Court of Appeals added to the state district court’s analysis that Mr.
Ivy had “not overcome the presumption that the sex-trafficking statute is constitutionally
sound” by 	demonstrating “‘beyond a reasonable doubt’ that 	the statute violates a
constitutional provision.” Ivy V, 2024 WL 2890829, at *3. Mr. Ivy has not shown that the
appellate court’s reliance on the presumption of constitutionality or finding that he had not
established a constitutional violation was contrary to clearly established federal law.
4. 	Appellate Counsel’s Failure to Stay the Direct Appeal and
Pursue Interim Postconviction Relief
Mr. Ivy argues that his appellate counsel was ineffective because he did not stay Mr.
Ivy’s direct appeal and pursue interim postconviction relief concerning the ineffectiveness
of trial counsel. Mr. Ivy presented this issue in his petition for postconviction relief.
(Resp’t’s App’x at 499, Dkt. No. 22-2.) The state district court noted that Mr. Ivy raised
some aspects of the ineffective-trial-counsel claim in his direct appeal, and they were found
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meritless by the Minnesota Court of Appeals. (Resp’t’s App’x at 626, Dkt. No. 23-1.) In
addition, Mr. Ivy’s ineffective-appellate-counsel claim failed on the merits because it was
barred by Knaffla. (Id.) Thus, the court found, appellate counsel was not ineffective for
failing to stay the direct appeal. The Minnesota Court of Appeals agreed, determining that
the ineffective-trial-counsel claims were procedurally barred and that appellate counsel
properly exercised his professional judgment in deciding which claims to pursue on appeal.
Ivy V, 2024 WL 2890829, at *3.
Mr. Ivy has not shown that the state courts unreasonably applied, or issued a
decision contrary to, clearly established federal law with respect to his argument that
appellate counsel should have stayed the direct appeal and pursued interim postconviction
relief. Appellate counsel’s decision not to pursue ineffective-trial-counsel claims that he
concluded were not meritorious was objectively reasonable for the reasons discussed in
Part III.A.2.
B. 	Ineffectiveness-of-Trial-Counsel Claims
As determined above, Mr. Ivy did not exhaust any of his ineffectiveness-of-trial-
counsel claims in state court. In Mr. Ivy’s pro se supplemental brief filed in the Minnesota
Court of Appeals on direct appeal, Mr. Ivy argued that his trial counsel was ineffective
because he failed to identify issues and authorities, did not obtain witnesses or evidence on
Mr. Ivy’s behalf, did not challenge the sufficiency of the evidence presented to “aggravate
the sentence,” and did not answer Mr. Ivy’s notarized letters. (Resp’t’s App’x at 104, Dkt.
No. 21-1.) Mr. Ivy also argued that he was denied counsel of his choice when he attempted
to fire his lawyer and the trial judge said he would have to proceed pro se. (Id.) These
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arguments are closely related to the claims in Mr. Ivy’s habeas petition concerning his trial
counsel. The only claim in the habeas petition that is not closely related to the issues raised
in the supplemental pro se brief is Mr. Ivy’s claim that counsel was ineffective due to
hearing loss. (See id.)
The hearing-loss claim was not fairly presented to the Minnesota Court of Appeals
or to the Minnesota Supreme Court. The other ineffective-trial-counsel claims were not
fairly presented to the Minnesota Supreme Court in Mr. Ivy’s petition for review. (See
Resp’t’s App’x at 139–49, Dkt. No. 21-1). Thus, the claims are non-exhausted.
No state-court remedies remain for Mr. Ivy’s unexhausted trial-counsel claims,
however, because the claims are also procedurally defaulted. Mr. Ivy would be barred
under Knaffla from bringing the hearing-loss claim in a postconviction proceeding now,
and he would be barred by Minnesota Rule of Criminal Procedure 29.04 (among others)
from filing a petition for the Minnesota Supreme Court to review the trial-counsel claims
presented to the Minnesota Court of Appeals on direct appeal. Therefore, Mr. Ivy’s
ineffective-trial-counsel claims are procedurally defaulted.
The Court proceeds to whether Mr. Ivy has shown cause for the default. Mr. Ivy
argues that cause exists to excuse the procedural default because his appellate counsel was
ineffective. The Court has found otherwise in Part III.A above. The effectiveness of
appellate counsel does not provide cause to excuse the default.
Mr. Ivy also argues that cause exists because he did not discover “material
statements from Schaefer’s[] report number[] 15-099942 or Pflepsen complaint number
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13075280 (page 4 of 7) until 2021.” (Pet’r’s Mem. Supp. Opp’n at 3,4 Dkt. No. 26.) Julia
Schaefer was one of Mr. Ivy’s alleged victims. Mr. Ivy detailed in his postconviction
petition inconsistencies between Ms. Schaefer’s trial testimony and her initial statement to
police. (Resp’t’s App’x at 492–93, Dkt. No. 22-2.) In the State’s response to the
postconviction petition, the State pointed out that Mr. Ivy’s trial counsel did cross-examine
Ms. Schaefer about inconsistencies between her initial statement and her trial testimony.
(Resp’t’s App’x at 607–08, Dkt. No. 23.) Thus, trial counsel knew about the initial
statement and the inconsistencies in time to use them at trial, and his use of them at trial
was a matter of trial strategy. The Court finds that Mr. Ivy has not shown that this aspect
of counsel’s performance was so deficient that it would constitute cause to excuse a
procedural default.
With respect to the Pflepsen complaint, Mr. Ivy represented in his postconviction
petition that Alexandria Pflepsen was with Danika Johnson5 when Ms. Johnson was
arrested for prostitution. (Resp’t’s App’x at 464, Dkt. No. 22-1.) Mr. Ivy argued that his
trial counsel knew about Ms. Pflepsen from a police report but did not interview her,
despite her alleged involvement in another sex trafficking case and her testimony in another
trial that she had a history of prostitution. (Id.) Mr. Ivy surmises that Ms. Pflepsen could
4 For citations to this document, the Court uses the CM/ECF pagination.
5 Danika Johnson was Mr. Ivy’s “main girl.” Ivy I, 902 N.W.2d at 656. She testified at his
trial that she gave him money she earned prostituting and helped other women who had
been recruited by him to become prostitutes. Id.
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have testified about whether she introduced Ms. Johnson to prostitution and that Ms.
Pflepsen did not know Mr. Ivy. (Id. at 470.)
The Court finds that Ms. Pflepsen’s possible testimony does not provide cause for
Mr. Ivy’s default. Trial counsel’s decision not to interview Ms. Pflepsen falls well within
the range of reasonable assistance by an attorney, and her possible testimony is speculative
and relatively insignificant in light of the evidence presented at trial. Thus, trial counsel’s
failure to interview Ms. Pflepsen does not provide cause for the default.
Mr. Ivy also has not shown actual prejudice caused by the alleged ineffectiveness
of trial counsel. As the Minnesota Court of Appeals said on direct review, the evidence
against Mr. Ivy was very strong, and numerous victims testified that he lured them into his
prostitution 	scheme. 	Mr. 	Ivy 	has 	not 	shown 	that 	trial 	counsel 	pointing 	out 	other
inconsistencies between Ms. Shaefer’s report and her trial testimony would have negated
the strong evidence of his guilt. The same is true of Ms. Pflepsen’s possible testimony.
Finally, Petitioner has not shown that a fundamental miscarriage of justice would
occur if the Court does not consider his ineffective-trial-counsel claim. He makes a litany
of arguments of “fundamental unfairness”: that the postconviction court denied him
transcripts; that the jury did not see 97,936 images, 111 videos, and 26 CDs of evidence;
that the postconviction court denied his constitutional challenge before ruling on the
postconviction petition; that the Minnesota Court of Appeals mischaracterized when he
first raised the constitutional challenge; that the Minnesota Court of Appeals said five
claims were raised in the postconviction petition when he had actually raised nine; that the
state courts did not address his Brady argument; that trial counsel failed to object to
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testimony; that the prosecutor committed misconduct; that Mr. Ivy was not allowed to
confront a non-testifying alleged victim; and that he is actually innocent of criminal sexual
conduct involving Ms. Schaefer. (Pet’r’s Mem. Supp. Opp’n at 8–12, Dkt. No. 26.) All but
the last argument are issues the Court has already addressed and rejected or complaints
about the appeal and postconviction process that do not show “that a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” See
McCall, 114 F.3d at 758. In any event, Mr. Ivy has not presented or identified evidence of
his innocence sufficient to undermine confidence in the outcome of his trial—including for
his claim of actual innocence of the criminal sexual conduct involving Ms. Schaefer. To
open the gateway for habeas review of his defaulted claims, the Court “must be persuaded
that, in light of all the evidence, ‘it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.’” See Washington v. Delo, 51 F.3d
756, 761 (8th Cir. 1995) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). The Court is
not 	persuaded. 	Consequently, 	the 	Court 	may 	not 	review 	the 	merits 	of 	Mr. 	Ivy’s
procedurally defaulted ineffective-trial-counsel claims.
C. 	Constitutional Challenge to Minnesota Statute § 609.322, Subdivision 1a
Mr. Ivy did not present his constitutional challenge to Minnesota Statute § 609.322,
subdivision 1a, to the state courts on direct appeal. See Ivy V, 2024 WL 2890829, at *2. He
raised the issue for the first time in a motion filed in state district court after his direct
appeal had concluded. See id. The Minnesota Court of Appeals determined that the motion,
made “long after his convictions and direct appeal,” was not authorized by any rule or
statute. Id. To the extent the motion sought postconviction relief, the court held it was
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barred by Knaffla because Mr. Ivy could have raised the constitutional challenge during
his direct appeal but did not. Id.
Mr. Ivy’s constitutional challenge to Minnesota Statute § 609.322, subdivision 1a,
is procedurally defaulted. The Minnesota Court of Appeals held in Ivy V that the claim was
both barred by Knaffla and not authorized by any state procedural rule or law. Ivy V, 2024
WL 2890829, at *2.
As cause for the default, Mr. Ivy asserts that his appellate counsel advised him that
the constitutional challenge should be brought in a postconviction proceeding. (Pet’r’s
Mem. at 6, Dkt. No. 26.) Ineffective assistance of appellate counsel can constitute cause to
excuse the procedural default of another claim. Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir.
1996). To show cause, Mr. Ivy must demonstrate “that his attorney’s performance was
professionally unreasonable and that, but for his deficient performance, the outcome of the
proceeding would have likely been different.” Id. As discussed above in Part III.A, Mr. Ivy
has not shown that his appellate counsel’s performance was professionally unreasonable
or that the outcome of his appeal would have been different.
Mr. Ivy makes the same “fundamental unfairness” arguments to attempt to excuse
the procedural default of his constitutional claim. Those arguments are rejected for the
reasons set forth above in Part III.B. Accordingly, Mr. Ivy has not shown cause for the
default, actual prejudice caused by a violation of federal law, or that a fundamental
miscarriage of justice would result if the Court does not consider his constitutional claim.
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D. 	Certificate of Appealability
A § 2254 petitioner cannot appeal an adverse ruling on his petition unless he is
granted a certificate of appealability. See 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
When a § 2254 petition is dismissed on procedural grounds, a certificate of appealability
should be issued only if reasonable jurists could debate both (1) whether the petition states
a valid constitutional claim and (2) whether the procedural ruling is correct. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When a petition is dismissed on the merits, a
petitioner must show “that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Id. On the present record, the Court finds
that no reasonable jurist would dispute the correctness of the Court’s recommended
procedural rulings or the Court’s assessment of the ineffective-assistance-of-appellate-
counsel claim. Consequently, no certificate of appealability should be issued.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. 	Petitioner Rashad R. Ivy’s Petition for Writ of Habeas Corpus (Dkt. No. 1) be
DENIED;
2. 	This action be DISMISSED; and
3. 	No certificate of appealability be issued.
Dated: November 14, 2025 	s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
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NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations within 14 days
after being served a copy” of the Report and Recommendation. A party may respond to
those objections within 14 days after being served a copy of the objections. See D. Minn.
LR 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c).
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