Alexander James Ray, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0584

Alexander James Ray, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 27, 2022
Affirmed
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-19-4820

Adam T. Johnson, David R. Lundgren, Lundgren & Johnson, P.S.C., Minneapolis,
Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Gaïtas, Presiding Judge; Segal, Chief Judge; and Kirk,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Alexander James Ray challenges the district court’s denial of his
postconviction petition, filed after we affirmed his conviction for first-degree criminal
sexual conduct on direct appeal. Ray argues that his appellate public defender provided
ineffective assistance of counsel by failing to (1) argue on appeal that the district court
erroneously denied his for-cause challenge of a biased juror and (2) raise a claim of
ineffective assistance of trial counsel. Because the district court did not abuse its discretion
in denying Ray’s postconviction petition, we affirm.
FACTS
In winter 2019, Ray sexually assaulted his then-girlfriend and videorecorded the
encounter.1 Respondent State of Minnesota subsequently charged Ray with first-degree
criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(i) (2018), third-degree criminal
sexual conduct, Minn. Stat. § 609.344, subd. 1(c) (2018), threats of violence, Minn. Stat.
§ 609.713, subd. 1 (2018), and domestic assault by strangulation, Minn. Stat. § 609.2247,
subd. 2 (2018). A jury found Ray guilty of all four offenses. The district court sentenced
Ray to 90 months in prison to be followed by 10 years of conditional release.
2

1 Additional facts can be found in our nonprecedential opinion affirming Ray’s convictions
on direct appeal, State v. Ray, No. A20-0144, 2021 WL 416718, at *1-2 (Minn. App.
Feb. 8, 2021).

2 This sentence is a downward durational departure from the presumptive range of 144 to
187 months for first-degree criminal sexual conduct. See Minn. Sent’g Guidelines 4.B
(2018).
3
Ray, represented by an appellate public defender, filed a direct appeal. In preparing
the appeal, Ray’s appellate public defender requested the transcripts of the trial but
specifically excluded from the request transcripts of jury selection. The appellate public
defender filed a brief with this court arguing that the prosecutor had committed misconduct
during Ray’s trial. We affirmed Ray’s convictions. Ray, 2021 WL 416718, at *4.
Ray subsequently obtained private defense counsel and filed a petition for
postconviction relief. His postconviction petition raised claims of ineffective assistance of
appellate counsel and trial counsel, among other issues that he does not pursue in this
appeal. Of relevance here, Ray’s postconviction petition alleged that his appellate public
defender provided ineffective assistance by not requesting the transcripts of jury selection,
and in turn, by not raising two jury-selection issues on direct appeal. Ray first claimed that
the appellate public defender should have discovered and argued that the district court erred
in denying Ray’s motion to strike a biased juror for cause and in allowing that juror to serve
on Ray’s jury. And Ray argued that the appellate public defender should have argued that
trial counsel was deficient because trial counsel did not personally question the prospective
jurors and allowed three additional biased jurors to serve on the jury.
3

3 Ray filed several exhibits in support of his postconviction petition, including documents
from the appellate public defender’s file. In one of those document s—Ray’s application
for appellate-public-defender representation —Ray complained that he had received
ineffective assistance of trial counsel because his private trial counsel did not represent him
at trial. He stated that, at the request of his retained counsel, another lawyer took over the
case just one day before trial. Ray’s application also stated that his case presented a
possible juror-misconduct issue because a witness had overheard jurors discussing the case
in the hallway. Another document—a letter from the appellate public defender to Ray’s
retained private attorney—inquired whether “anything occurred during voir dire that would
4
The district court concluded that Ray failed to establish that his appellate counsel
and his trial counsel were ineffective. It denied Ray’s postconviction petition without an
evidentiary hearing.4
DECISION
Ray challenges the district court’s denial of his petition for postconviction relief.
Appellate courts “review the denial of a petition for postconviction relief for an abuse of
discretion. A postconviction court abuses its discretion when it has exercised its discretion
in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or
made clearly erroneous factual findings.” Pearson v. State, 891 N.W.2d 590, 596 (Minn.
2017) (quotations and citation omitted).
In his postconviction petition, and now on appeal, Ray argues that his appellate
counsel and his trial counsel provided constitutionally defective representation. Under the
federal and state constitutions, a criminal defendant is entitled to the assistance of counsel.
U.S. Const. amend. VI; Minn. Const. art. I, § 6. This right means “the right to effective
assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis
added).

necessitate” ordering the transcripts. Ray pointed out in his postconviction filings that the
appellate public defender’s file contained no response to that letter.

4 Although the conclusion section of Ray’s brief to this court states that the district court
erred in denying an evidentiary hearing, he did not brief this issue. We therefore conclude
that Ray forfeited any argument that the district court erred in denying his petition for
postconviction relief without an evidentiary hearing. See State v. Myhre, 875 N.W.2d 799,
806 (Minn. 2016) (stating that failure to brief an issue on appeal may result in forfeiture of
the issue).
5
When a defendant alleges ineffective assistance of counsel, the court applies the
two-prong test set forth in Strickland v. Washington, 466 U.S. 668 , 687 (1984). State v.
Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017) (citing Andersen v. State, 830
N.W.2d 1, 10 (Minn. 2013)). Under that test, a defendant must show that (1) counsel’s
representation was deficient and (2) the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687. “If a claim fails to satisfy one of the Strickland requirements,
[a court] need not consider the other requirement.” State v. Mosley, 895 N.W.2d 585, 591
(Minn. 2017). The ultimate consideration is “whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686.
A petitioner alleging ineffective assistance of counsel must overcome the “strong
presumption that counsel’s performance fell within a wide range of reasonable assistance.”
Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007). An attorney meets the objective
reasonableness standard when the attorney “provides [the] client with the representation of
an attorney exercising the customary skills and diligence that a reasonably competent
attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633
(Minn. 1999) (quotation omitted). Prejudice exists if there was a reasonable probability
that the result of the proceeding would have been different but for counsel’s errors. Id.
Because the Strickland test involves mixed questions of law and fact, an appellate
court reviews a district court’s determinations de novo. State v. Mouelle, 922 N.W.2d 706,
715 (Minn. 2019). “[T]o determine whether [a defendant’s] appellate counsel was
6
ineffective, [a reviewing court] must look to the merits of [the defendant’s] underlying
claims.” Onyelobi v. State, 932 N.W.2d 272, 280 (Minn. 2019).
I. Because the district court did not err in denying trial c ounsel’s motion to
remove a juror for cause, Ray’s appellate public defender did not provide
ineffective assistance of counsel by failing to pursue the issue on direct appeal.

Ray argues that his appellate public defender was ineffective because he did not
request the transcript of jury selection and consequently failed to argue on direct appeal
that the district court erred by denying a for-cause challenge to a biased juror. The juror at
issue—juror 14— was a 61-year-old woman who stated during jury selection that she was
sexually assaulted by a friend’s brother as a teenager. Ray’s trial counsel challenged juror
14 for cause, but the district court denied the motion, and juror 14 was ultimately seated
on Ray’s jury. According to Ray, the district court’s decision to allow a biased juror to
serve on his jury was structural error that violated his constitutional right to an impartial
jury. And, according to Ray, if the appellate public defender had raised this issue on direct
appeal, Ray would have prevailed and received a new trial.
Before turning to Ray’s allegation of ineffective assistance of appellate counsel, we
examine the merits of the underlying claim. A criminal defendant has a constitutional right
to an impartial jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6. “Because the
impartiality of the adjudicator goes to the very integrity of the legal system, . . . the bias of
a single juror violates the defendant’s right to a fair trial.” State v. Evans, 756 N.W.2d 854,
863 (Minn. 2008) (quotations omitted). The presence of a biased juror is a structural error
and requires automatic reversal. Id.
7
An attorney may challenge a juror “for cause” on 11 separate grounds, including
that “[t]he juror’s state of mind—in reference to the case or to either party—satisfies the
court that the juror cannot try the case impartially and without prejudice to the substantial
rights of the challenging party.” Minn. R. Crim. P. 26.02, subd. 5(1). If a party challenges
a prospective juror on this basis—for actual bias—the party “must show that the juror
exhibited strong and deep impressions that would prevent her from laying aside her
impression or opinion and rendering a verdict based on the evidence presented in court.”
State v. Munt, 831 N.W.2d 569, 577 (Minn. 2013) (quotations omitted).
Here, Ray’s trial counsel challenged juror 14 for cause on the ground of actual bias,
and the district court rejected the challenge. To determine whether the district court erred
by seating a challenged juror, the appellate court applies a two-step analysis. State v.
Fraga, 864 N.W.2d 615, 623 (Minn. 2015). The first step is to determine whether the juror
expressed actual bias. Id. In considering this question, the appellate court “must view the
juror’s voir dire answers in context.” Id. “If the juror expressed actual bias, [the appellate
court] must then determine whether the juror was properly rehabilitated.” Id. A juror is
properly rehabilitated when the juror unequivocally agrees to follow the district court’s
instructions, set aside any preconceived judgments, and fairly consider the evidence. Id.
(quoting State v. Prtine, 784 N.W.2d 303, 310 (Minn. 2010)). “If a district court has ruled
on a for-cause challenge to a prospective juror, an appellate court gives great deference to
a district court’s findings of fact regarding juror bias and reviews a district court’s decision
to seat a juror for abuse of discretion.” State v. Geleneau, 873 N.W.2d 373, 379 (Minn.
App. 2015) (quotations omitted), rev denied (Minn. Mar. 29, 2016).
8
Turning to the factual circumstances here, juror 14 initially revealed on her juror
questionnaire that she had been sexually assaulted decades earlier when she was 14 years
old. She stated that “something happened to [her] as far as contact that [she] was unsure
[she] could be impartial” and that the incident “certainly has colored [her] future.” During
questioning outside of the presence of other prospective jurors, the district court asked juror
14 whether she could continue to examine her own biases and “not see [her]self” in the
circumstances alleged in Ray’s case. Juror 14 responded that “it would be [her] hope.”
She stated that she understood her role as a juror “to find the truth.” Ray’s trial counsel
followed up by asking juror 14 whether she could “put aside” her “painful experience.”
Juror 14 stated, “I think of myself as being a person that can look at things objectively, but
it is amazing over—I’ m also 61 years old, and it’s amazing how things still—.” The
prosecutor then asked, “I think what you’re telling us, you’re saying you hope you can set
any sort of bias aside. So then are you saying that you will do your best to set any sort of
bias that you recognize aside and make an objective decision?” Juror 14 responded, “yes.”
After this discussion, Ray’s trial counsel moved the district court, over the state’s
objection, to strike juror 14 for cause. Ray’s counsel argued, “she didn’t say she couldn’t
[be impartial] and she didn’t say she could, but she certainly didn’t say she could.” The
district court denied Ray’s motion, stating:
She was extremely thoughtful about this exact issue,
right. We all like to think that we’re impartial, but we all come
with our stuff. And then she said repeatedly she hopes that
she’d be able to keep her own situation out of it and that she
would set aside her bias and be fair. I think she’s going to be
really conscious of any proclivity she has one way or the other.
9
Interesting. You’re right. She didn’t say she -- she
didn’t flat-out say, I can be impartial. She didn’t flat-out say
she couldn’t be impartial. She’s just super aware of her
inherent biases. But I don’t think there’s enough for cause at
this point, but I’ll keep an eye out for her as she answers the
other questions.

In his postconviction petition and now on appeal, Ray argues that juror 14 exhibited
actual bias and was not sufficiently rehabilitated. Given these circumstances, he argues,
the district court erroneously denied his motion to remove juror 14.
But the district court did not find that juror 14 had actual bias—that she could not
“try the case impartially and without prejudice to the substantial rights of the challenging
party.” Minn. R. Crim. P. 26.02, subd. 5(1). The district court found that juror 14 was
conscious of her own inherent biases, but she did not “flat-out say she couldn’t be
impartial.”
We give great deference to a district court’s findings regarding juror impartiality
because these findings are “based upon determinations of demeanor and credibility.”
Evans, 756 N.W.2d at 870 (quotation omitted). As the Minnesota Supreme Court has
explained:
Our review of the district court’s determination of juror
impartiality is especially deferential. That determination
depends largely on the prospective juror’s demeanor, and
demeanor plays a fundamental role not only in determining
juror credibility, but also in simply understanding what a
potential juror is saying. In contrast to appellate review of a
cold transcript, the district court stands in the best position to
hear the juror’s testimony, observe her demeanor, and evaluate
her ability to be impartial. This is why the United States
Supreme Court has described the deference due to the district
court’s determination of juror impartiality as being at its
pinnacle.
10

Munt, 831 N.W.2d at 576 (quotations and citations omitted).
Here, the district court was in the best position to evaluate whether juror 14
exhibited actual bias. Deferring to the district court’s determination on this issue, we see
no abuse of discretion in the district court’s denial of Ray’s motion to remove juror 14. See
Fraga, 864 N.W.2d at 623. Based on our review of the record, juror 14 did not express
“strong and deep impressions that would prevent her from laying aside her impression or
opinion and rendering a verdict based on the evidence presented in court.” Munt, 831
N.W.2d at 577 (quotations omitted). Moreover, “being the victim of a crime does not,
standing alone, create ‘preconceived bias in the mind of the prospective juror.’” Holt v.
State, 772 N.W.2d 470, 477 (Minn. 2009) (quoting State v. Roan, 532 N.W.2d 563, 568
(Minn. 1995)). We also observe that, in denying Ray’s motion, the district court left open
the possibility that juror 14 might reveal actual bias later in the jury-selection process. But
juror 14 expressed no additional concerns about her ability to be impartial, and Ray’s trial
counsel never renewed the motion to remove juror 14 for cause. Thus, the district court
did not abuse its discretion in denying Ray’s for-cause challenge.
In his effort to convince us otherwise, Ray cites two of our nonprecedential
decisions where we reversed based on a juror’s actual bias. 5 See State v. Danberry, No.
A19-1676, 2020 WL 6846376 at *1 (Minn. App. Nov. 23, 2020); State v. Bergendahl, No.
A19-1450, 2020 WL 5626091 at *1 (Minn. App. Sept. 21, 2020). Neither case changes

5 Nonprecedential opinions are not binding authority but may be cited for their persuasive
value. Minn. R. Civ. App. P. 136.01, subd. 1(c).
11
our analysis here, however, because they both involved jurors who expressed actual bias
and were not sufficiently rehabilitated. In Danberry, where the defendant was accused of
repeated sexual abuse of a middle-school child, the juror’s child had been repeatedly
sexually abused by a neighbor. 2020 WL 6846376 at *1. The juror stated, “I honestly
don’t know that I can be not prejudiced in this kind of case.” Id. at *2. When asked if she
believed her child’s abuse would “creep into [her] consciousness” during trial, the juror
replied, “[m]y thought is that if it was anything sounding familiar, yes, it would.” Id. And
in Bergendahl, also a sexual assault case, the juror—whose daughter had been physically
and sexually abused by a boyfriend —repeatedly questioned her ability to be impartial,
stating that “she just didn’t know.” 2020 WL 5626091 at *1. While our decisions in
Danberry and Bergendahl were based on the second step of the applicable analysis —
whether there was adequate juror rehabilitation—the district court’s denial of Ray’s motion
was based on the first step. Thus, Danberry and Bergendahl do not advance Ray’s position
here.
Based on our determination that the district court did not abuse its discretion in
denying Ray’s motion to strike juror 14, we also conclude that the district court did not err
in rejecting Ray’s postconviction claim of ineffective assistance of appellate counsel.
Because we conclude, applying de novo review, that there is no reasonable possibility that
challenging the denial of Ray’s motion on direct appeal would have changed the outcome
of the appeal , Ray cannot establish the second prong of the Strickland analysis—that he
was prejudiced by the appellate public defender’s failure to raise the issue. See Onyelobi,
12
932 N.W.2d at 280. Therefore, the district court did not abuse its discretion in denying
Ray’s petition for postconviction relief on this basis.
II. Because the record does not reveal that Ray’s trial counsel provided ineffective
assistance of counsel during jury selection, Ray’s appellate public defender was
not ineffective for failing to pursue this issue.

Ray argues that his appellate public defender was ineffective for not pursuing a
claim of ineffective assistance of trial counsel based on trial counsel’s performance during
jury selection. He contends that trial counsel was ineffective because trial counsel did not
question the prospective jurors and did not peremptorily remove three additional jurors
who expressed bias. Because the record does not establish that trial counsel’s performance
during jury selection was deficient, the district court did not abuse its discretion in denying
Ray’s postconviction claim of ineffective assistance of appellate counsel on this ground.
“When an ineffective assistance of appellate counsel claim is based on appellate
counsel’s failure to raise an ineffective assistance of trial counsel claim, the appellant must
first show that trial counsel was ineffective.” Fields v. State, 733 N.W.2d 465, 468 (Minn.
2007). And, as noted, a petitioner bears the burden of proof on an ineffective-assistance-
of-counsel claim. State v. Cram, 718 N.W.2d 898, 907 (Minn. 2006).
An attorney’s tactical decisions are within the discretion of counsel and will not be
reviewed for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999); see also
Onyelobi, 932 N.W.2d at 280 (“[W]e generally do not second-guess matters of trial
strategy.”). “The deference that courts give to an attorney’s strategic decisions is especially
strong in matters of jury selection, which “depends heavily on counsel’s experience,
perception of and rapport with prospective jurors.” Geleneau, 873 N.W.2d at 382 (quoting
13
Jama v. State, 756 N.W.2d 107, 114 (Minn. App. 2008)). “Attorneys must make tactical
decisions during jury selection, and a claim of ineffective assistance of counsel cannot be
established by merely complaining about counsel’s failure to challenge certain jurors or his
failure to make proper objections.” Id. (quotations omitted).
Ray argues that his trial counsel was ineffective because he passed on the
opportunity to question jurors and was unengaged in the process . In denying Ray’s
postconviction petition, the district court disagreed, stating:
[Trial counsel] had access to juror questionnaires and the
benefit of the Court’s individual and group questioning of all
jurors. In this case, [trial counsel] was actively engaged in voir
dire, agreeing to dismiss jurors for cause, unsuccessfully
challenging a juror for cause, and successfully challenging
another juror for cause. [Trial counsel] individually questioned
several jurors after the Court’s questioning. He did not
individually question all the prospective jurors, but he did
actively participate in jury selection. [Trial counsel] exercised
all his peremptory strikes. [Trial counsel] was attentive and
engaged in jury selection.

The record supports the district court’s findings. Because we do not second-guess the
tactical decisions that an attorney makes during jury selection, Geleneau, 873 N.W.2d at
382, we cannot conclude that the performance of Ray’s trial counsel was deficient, see
Onyelobi, 932 N.W.2d at 280.
Ray also argues that trial counsel was ineffective in failing to exercise peremptory
strikes against three jurors who exhibited bias. The district court’s order denying
postconviction relief states:
The jurors at issue in this petition all had previous exposure to
sexual abuse in some form. They were forthright in their
potential biases. All were questioned by the Court about
14
concerns relating to possible partiality. In response to
questions from the Court, each juror affirmatively expressed an
ability to listen and act impartially. No juror who served on
Petitioner’s panel expressed bias so ‘strong or unequivocal that
no plausible countervailing subjective preference could justify
failure to remove [them].’ Jama, 756 N.W.2d at 114.

The record supports these findings. Moreover, as the state points out, trial counsel
appropriately exercised peremptory strikes to remove other prospective jurors who may
not have been a good fit for Ray’s jury. Because a claim of ineffective assistance of counsel
cannot be based solely on disagreement with an attorney’s failure to challenge certain
jurors, Geleneau, 873 N.W.2d at 382, we agree with the district court that Ray failed to
establish that his trial counsel’s performance was deficient.
In turn, because Ray failed to establish during the postconviction proceedings that
his trial counsel’s representation was unreasonable, his claim of ineffective assistance of
appellate counsel also fails. See Fields, 733 N.W.2d at 468. His appellate public defender
was not deficient for not pursuing a meritless issue. And the district court did not abuse its
discretion by denying Ray’s postconviction claim on this basis.
Affirmed.