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Phipps v. Raemisch

United States District Court, D. Colorado

September 12, 2018

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



         Applicant, Randy Phipps, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Phipps has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 14]. He is challenging the validity of his conviction and sentence in the District Court for Jefferson County, Colorado, Case Number 11CR961. Respondents have filed an Answer to Petition for Writ of Habeas Corpus [Docket No. 40], and Mr. Phipps filed a Reply to the People's Answer to Applicant's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 41]. After reviewing the Application, Answer, and Reply, along with the state court record, the Court denies relief on the remaining claims.

         I. BACKGROUND

         The relevant factual and procedural background was summarized by the Colorado Court of Appeals as follows:

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 have to 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. 41-1at 2-6; People v. Phipps, 411 P.3d 1157, 1160-61 (Colo.App. 2017).

         In the § 2254 Application, Mr. Phipps asserts the following claims:

• 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 ‘botched' forensic examination.” Id. at 23-24.
• Claim 7: “The district court, and or, the DA, and or, defense counsel conspired to falsify the sentencing transcripts by extracting substantial parts of the hearing of January 12, 2012.” Id. at 24-25.
• Claim 8: “The petitioner claimed that the district court did redact, suppress and ignore the 140 page post-conviction motion factually received by the court on May 14, 2014.” Id. at 25-27.
• Claim 9: “The petitioner claimed that counsel's deliberately lied to him numerous times throughout the proceeding.” Id. at 27-28.
• Claim 10: “The petitioner claimed he was not allowed to raise issues on appeal because of violations of his rights to federal and state due process and equal protection.” Id. at 29.
• Claim 11: “The petitioner claimed 5th, 6th, and 14th Amend. violations in the U.S. Const. and accompanying rights in the Colo. Const. surrounding the sexual history review in the plea agreement.” Id. at 29-30.
• Claim 12: “The petitioner claimed the prejudicial effect of his claims individually and cumulatively regarding IAC and prejudice under the 5th, 6th, and 14th Amend. Rights in the U.S. Const. And accompanying rights in the Colo. Const.” Id. at 30.
• Claim 13: “The petitioner was erroneously advised that he would serve ‘60% or less' before being eligible for parole.” Id.

         The Court previously entered an Order to Dismiss in Part and for Answer and State Court Record, Docket No. 33, dismissing Claims 8 and 10 and any non-ineffective assistance of counsel arguments asserted in Claims 1-7. The Court will review the remaining ineffective assistance of counsel (IAC) claims under the standards set for below.


         The Court must construe the Application and other papers filed by Mr. Phipps liberally 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.

         Title 28 U.S.C. § 2254(d) of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:

(1) 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
(2) 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). Mr. Phipps bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

         A claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. See Harrington v. Richter, 562 U.S. 86, 98-99 (2011). In particular, “determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning.” Id. at 98. Thus, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. Even “[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Id. at 98. In other words, the federal habeas court “owe[s] deference to the state court's result, even if its reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, this Court “must uphold the state court's summary decision unless [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.” Id. at 1178. “[T]his ‘independent review' should be distinguished from a full de novo review of the petitioner's claims.” Id.

         The threshold question the Court must answer under § 2254(d)(1) is whether Mr. Phipps seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision.” Id. at 412. Furthermore,

clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018.

         If a clearly established rule of federal law is implicated, the Court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

A state-court decision is contrary to clearly established federal law if: (a) “the state court applies a rule that contradicts the governing law set forth in Supreme Court cases”; or (b) “the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent.” Maynard [v. Boone], 468 F.3d [665, ] 669 [(10th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405). “The word ‘contrary' is commonly understood to mean ‘diametrically different,' ‘opposite in character or nature,' or ‘mutually opposed.'” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts. Id. at 407 08.

House, 527 F.3d at 1018.

         The Court's inquiry pursuant to the “unreasonable application” clause is an objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A] decision is ‘objectively unreasonable' when most reasonable ...

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