United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND FOR ANSWER AND STATE
A. BRIMMER, United States District Judge
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].
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
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
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
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.
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.
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
• 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