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Phipps v. Raemisch

United States District Court, D. Colorado

February 26, 2018

RANDY PHIPPS, Applicant,
v.
RICK RAEMISCH, Director of the Colorado Department of Corrections, MICHAEL MILLER, Warden of C.C.C.F., and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER TO DISMISS IN PART AND FOR ANSWER AND STATE COURT RECORD

          PHILIP A. BRIMMER, United States District Judge

         Applicant Randy Phipps is a state prisoner in the custody of the Colorado Department of Corrections. Applicant has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 14] challenging the validity of his judgment of conviction in Jefferson County District Court No. 11CR961. At the Court's instruction, Respondents filed a Pre-Answer Response [Docket No. 20] raising the affirmative defense of exhaustion of state court remedies. Applicant submitted a Reply [Docket No. 24] and a Motion to Supplement His Reply [Docket No. 25].

         The Court must liberally construe Applicant's pleadings because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application in part.

         I. BACKGROUND

         Applicant pleaded guilty to sexual assault on a child by a person in position of trust and as part of a pattern of sexual abuse, and was sentenced to an indeterminate prison term of seventeen years to life. Docket No. 20-1 at 6-7. He did not appeal.

         In 2014, Applicant filed a motion for postconviction relief under Colo. Crim. P. Rule 35(c) asserting ineffective assistance of counsel (“IAC”) claims. Id. at 4; Docket No. 24 at 20-94. The trial court denied the motion on April 8, 2015. Docket No. 20-1 at 3; Docket No. 20-8 at 2-11. On appeal, the Colorado Court of Appeals summarized the relevant facts and procedural history of Applicant's case:

During an investigation to detect child pornography shared over the Internet, the police remotely searched a computer onto which at least two files depicting child pornography had been downloaded. Using that computer's Internet Protocol (IP) address, the police determined that the computer was located in Phipps' home. The police obtained and executed a search warrant of Phipps' home.
Phipps was not home at the time of the search, but an officer spoke with him on the phone during the search and explained why his home was being searched. During that recorded phone call, Phipps admitted that he stored child pornography on his computer and that once the officer searched his computer, “his life was over.” The police seized Phipps' computer, on which they found over thirty videos of children engaged in sexual acts.
One of these videos depicted Phipps' stepdaughter when she was approximately eight or nine years old. She was mostly nude, and the video showed Phipps instructing her to use sex toys as well as Phipps using sex toys on her. In her police interview, Phipps' stepdaughter identified herself and Phipps in the video and stated that Phipps had sexually assaulted her numerous times.
Phipps was charged with sexual assault on a child (position of trust - pattern of abuse) under sections 18-3-405.3(1), (2)(b), C.R.S. 2016; aggravated incest under section 18-6-302(1)(a), C.R.S. 2016; sexual exploitation of a child (inducement) under section 18-6-403(3)(a), C.R.S. 2016; and sexual exploitation of children (possession) under section 18-6-403(3)(b.5). The court found Phipps indigent and appointed counsel to represent him.
A plea agreement was negotiated and Phipps pleaded guilty to the sexual assault charge. In exchange, the district attorney dismissed the remaining charges and promised that the United States Attorney would not prosecute Phipps on child pornography charges.[1]
At the sentencing hearing, Phipps took responsibility for his crimes. He stated that he did not wish to put his family through a “horrific ordeal with a jury trial, ” and that his “remorse, regrets, shame, despair, sadness, and sorrow cannot be measured.” In his motion for postconviction relief, Phipps made numerous claims of ineffective assistance of counsel. The arguments Phipps renews on appeal are:
• His counsel failed to challenge the legality of the initial, remote search of Phipps' computer, which violated his Fourth Amendment rights.
• His counsel's decision to waive the preliminary hearing constituted deficient performance.
• His counsel's failure to request a bond reduction constituted deficient performance.
• His counsel's failure to investigate and challenge the prosecution's forensic computer evidence or hire an expert to do so constituted deficient performance.
• His counsel failed to advise him that, as a condition of his parole eligibility, he might be required to reveal past crimes, exposing him to additional criminal charges.
• His counsel failed to advise him that evidence of his crimes might be destroyed after he pleaded guilty.
• His counsel failed to advise him that he might be ordered to pay restitution to his stepdaughter.
• His counsel misadvised him about the minimum amount of prison time he would serve before being eligible for parole.
• His counsel misled him with regard to whether he was pleading guilty to a crime of violence.
The district court did not hold a hearing, but concluded that the existing record demonstrated Phipps' claims failed one or both prongs of Strickland.

Docket No. 20-6 at 3-7.

         On December 29, 2016, the Colorado Court of Appeals affirmed the trial court's order denying Applicant's claims for postconviction relief because his “allegations were bare and conclusory in nature, directly refuted by the record, and, even if proven true, would have failed to establish one of the prongs of the test prescribed in Strickland v. Washington, 466 U.S. 668 (1984).” Id. at 3, 25. The Colorado Supreme Court denied Applicant's petition for writ of certiorari on June 26, 2017. Docket No. 20-9 at 2.

         On July 27, 2017, Applicant initiated this action. He asserts the following thirteen claims in the Application:

• Claim 1: “The petitioner was coerced and enticed into pleading guilty to a crime of violence in repugnance to his ‘non-negotiable' stance to not pleading guilty to a ‘crime of violence.'” Docket No. 14 at 5, 10-11.
• Claim 2: “The government violated the defendant's 4th Amend. Rights, and attendant rights in the Colo. Const. regarding the right to be free from unreasonable searches and seizures, and or, right to privacy. And his federal and state rights to due process and equal protection.” Id. at 6, 11-15.
• Claim 3: “Law enforcement, and the People, in reckless disregard for the truth, lied on the warrant-less search report and the sworn affidavit in support of a search warrant violating the petitioner's 4th Amend. rights in the U.S. Const. and attendant rights in the Colo. Const., and federal and state due process and equal protection.” Id. at 6, 16-17.
• Claim 4: “Counsel failed to conduct independent investigation.” Id. at 21-22.
• Claim 5: “The prosecutor destroyed evidence in this case, thereby suppressing it, not preserving it, and not presenting it for the defense to review the same original ESI evidence he did.” Id. at 22-23.
• Claim 6: “Counsel was ineffective because he allowed the prosecutor to suppress ESI evidence, and did not compel them to provide the professional report of their ...

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