United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS
A. BRIMMER UNITED STATES DISTRICT JUDGE.
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.
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
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.”
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
• 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).
§ 2254 Application, Mr. Phipps asserts the following
• 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
‘botched' forensic examination.” Id.
• 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.
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.
STANDARDS OF REVIEW
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
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;
(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).
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.”
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.
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.
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
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.
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