Phipps v. Miller

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 7, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RANDY PHIPPS,

Petitioner - Appellant,

v. No. 18-1396
(D.C. No. 1:17-CV-01833-PAB)
RICK RAEMISCH, Director of the (D. Colo.)
Colorado Department of Corrections;
MICHAEL MILLER, Warden; THE
ATTORNEY GENERAL OF THE STATE
OF COLORADO,

Respondents - Appellees.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________

Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
_________________________________

Randy Phipps, a state prisoner appearing pro se, seeks a certificate of appealability

(COA) to appeal the district court’s denial of his application for habeas relief under

28 U.S.C. § 2254. He also seeks leave to proceed in forma pauperis (“ifp”). Exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny his requests for a COA and to

proceed IFP and dismiss this matter.1


This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Phipps is pro se, we construe his filings liberally, but we do not act
as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
 I. BACKGROUND

A. State Court Proceedings

In 2011, Mr. Phipps pled guilty to sexual assault on a child by a person in a

position of trust and as part of a pattern of sexual abuse. The state court sentenced him to

an indeterminate prison term of seventeen years to life. He did not appeal.

In 2014, Mr. Phipps filed a motion for postconviction relief under Colo. R. Crim.

P. 35(c) asserting multiple ineffective assistance of counsel (“IAC”) claims. The state

district court denied the motion, and Mr. Phipps appealed. The Colorado Court of

Appeals (“CCA”) affirmed after considering Mr. Phipps’s IAC claims on the merits. In

doing so, it summarized the facts and procedural history of Mr. Phipps’s case as follows:2

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
2
In reviewing a § 2254 application, “[w]e presume that the factual findings of the
state courts to be correct” unless the applicant presents clear and convincing evidence to
the contrary. Fairchild v. Workman, 579 F.3d 1134, 1139 (10th Cir. 2009); see 28 U.S.C.
§ 2254(e)(1). Mr. Phipps does not challenge the state court’s determination of the facts
stated above.
2
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.
At the sentencing hearing, Phipps took full 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’s computer, which violated his Fourth
Amendment rights.
...
• 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 misadvised him about the minimum amount of
prison time he would have to serve before being eligible for
parole.

3
 • 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 that Phipps’ claims failed one or both prongs of
Strickland [v. Washington, 466 U.S. 668 (1984)].
People v. Phipps, 411 P.3d 1157, 1160-61 (Colo. App. 2016) (paragraph numbers

omitted) (also available at R. Vol. 2 at 301, 302-06).

The CCA affirmed the trial court’s order denying Mr. Phipps’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.” Id. at 1160. It did not, however, address his

cumulative-error argument. The Colorado Supreme Court denied Mr. Phipps’s

application for certiorari.

B. Federal District Court Proceedings

Mr. Phipps next filed this action challenging his conviction under 28 U.S.C.

§ 2254. He asserted 13 claims. Claims 1-7 each attempted to allege both an IAC claim

and one or more separate but related constitutional claims.3 Claims 8 and 10 alleged state

constitutional errors. Claims 11 and 13 alleged IAC. And Claims 9 and 12 alleged

cumulative error.

After an initial round of briefing by the parties, the district court issued a detailed

order assessing which claims Mr. Phipps had exhausted and whether the unexhausted

3
For example, in Claim 1, Mr. Phipps alleged counsel was ineffective by coercing
his guilty plea, and also alleged violation of equal protection and due process as a result
of the allegedly coerced plea.

4
claims were procedurally barred (“Procedural Order”). The court concluded Mr. Phipps

had failed to exhaust his non-IAC federal constitutional claims, which were asserted as

part of Claims 1-7 and in Claims 8 and 10 of his habeas application. The court further

concluded these claims were procedurally defaulted because they would be procedurally

barred under state law if he attempted to present them to the state court. The district

court therefore dismissed these non-IAC constitutional claims with prejudice. This left

the IAC allegations in Claims 1-7, 11, and 13; and the cumulative error allegations in

Claims 9 and 12.

After receiving additional briefing from the parties, the district court issued a

second lengthy order (“Merits Order”). It reviewed Mr. Phipps’s exhausted claims under

the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d),

except for his cumulative-error claims, which it reviewed de novo. Based on this review,

the court concluded Mr. Phipps was not entitled to habeas relief and dismissed his case

with prejudice. It also denied a COA and denied leave for Mr. Phipps to proceed ifp on

appeal.

Mr. Phipps (1) requests a COA to appeal portions of the Procedural Order4 and the

entirety of the Merits Order; (2) seeks to appeal the district court’s failure to grant his

“Motion to Object, Compel, and Sanction,” which he filed two days before the district

court dismissed the case; and (3) renews his ifp request.

4
Mr. Phipps does not challenge the district court’s ruling that he had failed to
exhaust Claims 8 and 10 and that they must be dismissed as procedurally defaulted.
5
 II. DISCUSSION

A. COA Standard

We must grant a COA to review a district court’s denial of a § 2254 petition.

See 28 U.S.C. § 2253(c)(1)(A). To receive a COA, the petitioner must make “a

substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), and must

show “that reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further,” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted).

Under AEDPA, when a state court has adjudicated the merits of a claim, a federal

district court cannot grant habeas relief on that claim unless the state court’s decision

“was contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2).

When the district court has denied habeas relief because the petitioner failed to

overcome AEDPA, our COA decision requires us to determine whether reasonable jurists

could debate the court’s application of AEDPA to the state court’s decisions. See

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Where, as here, the district court dismissed certain claims in the application on

procedural grounds, we will grant a COA as to those claims only if the applicant can

demonstrate both “that jurists of reason would find it debatable whether the petition states

6
a valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S.

at 484.

B. Analysis of COA Application

Mr. Phipps is not entitled to a COA because reasonable jurists would not debate

whether the district court correctly decided the issues he seeks to appeal.

1. Claims Dismissed as Unexhausted

In his amended § 2254 application, Mr. Phipps asserted an IAC claim and a

non-IAC claim within each of his first seven listed claims. The district court dismissed

each of the non-IAC claims, concluding they were unexhausted because Mr. Phipps had

not fairly presented them to the state courts and also were procedurally barred.5 See R.

Vol. 2 at 182-94, 197-98. Mr. Phipps seeks a COA to challenge this procedural ruling as

to these seven claims.

a. Legal background

Title 28 U.S.C. § 2254(b)(1) states: “An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of a State court shall not be

granted unless . . . the applicant has exhausted the remedies available in the courts of the

State.” To satisfy this exhaustion requirement, a state prisoner must fairly present his or

her claims to the state’s highest court—either by direct review or in a postconviction

5
The district court dismissed Mr. Phipps’s non-IAC constitutional claims with
prejudice upon finding these claims were procedurally barred. Mr. Phipps does not
challenge this finding, but only the district court’s threshold finding that the claims were
unexhausted.
7
attack—before asserting them in federal court. See Fairchild v. Workman,

579 F.3d 1134, 1151 (10th Cir. 2009) (“Exhaustion requires that the claim be fairly

presented to the state court.” (internal quotation marks omitted)); Brown v. Shanks,

185 F.3d 1122, 1124 (10th Cir. 1999) (“The exhaustion requirement is satisfied if the

issues have been properly presented to the highest state court, either by direct review of

the conviction or in a postconviction attack.” (internal quotation marks omitted)).

“Fair presentation of a prisoner’s claim to the state courts means that the substance

of the claim must be raised there.” Patton v. Mullin, 425 F.3d 788, 809 n.7 (10th Cir.

2005) (internal quotation marks omitted). To satisfy the “fair presentation” requirement,

“[t]he prisoner’s allegations and supporting evidence must offer the state courts a fair

opportunity to apply controlling legal principles to the facts bearing upon his

constitutional claim.” Id. (internal quotation marks omitted). The “petitioner bears the

burden of demonstrating that he has exhausted his available state remedies.” McCormick

v. Kline, 572 F.3d 841, 851 (10th Cir. 2009) (internal quotation marks omitted).

When a federal court determines that an applicant’s claims are not exhausted, it

may deny the claims on the merits, see 28 U.S.C. § 2254(b)(2), or dismiss the

unexhausted claims without prejudice to allow the applicant to return to state court to

exhaust the claims, see Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006).

Permitting the applicant to return to state court is not appropriate, however, if the

applicant’s claims are subject to an anticipatory procedural bar. See id.; Frost v. Pryor,

749 F.3d 1212, 1231 (10th Cir. 2014) (“Anticipatory procedural bar occurs when the

federal courts apply procedural bar to an unexhausted claim that would be procedurally

8
barred under state law if the petitioner returned to state court to exhaust it.” (internal

quotation marks omitted)).

When a federal court applies an anticipatory procedural bar to a habeas applicant’s

claims, the applicant’s claims are “considered exhausted and procedurally defaulted for

purposes of federal habeas relief.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir.

2000) (emphases added); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006)

(“In habeas, state-court remedies are described as having been ‘exhausted’ when they are

no longer available, regardless of the reason for their unavailability.”); Coleman v.

Thompson, 501 U.S. 722, 735 n.1 (1991) (noting that “there is a procedural default for

purposes of federal habeas review” if “the petitioner failed to exhaust state remedies and

the court to which the petitioner would be required to present his claims in order to meet

the exhaustion requirement would now find the claims procedurally barred”); Cannon v.

Gibson, 259 F.3d 1253, 1266 n.11 (10th Cir. 2001) (same).

There are two circumstances where a federal court may nevertheless consider

claims subject to an anticipatory procedural bar: (1) if the prisoner has alleged sufficient

“cause” for failing to raise the claim and resulting “prejudice,” Coleman, 501 U.S. at 750,

or (2) if denying review would result in “a fundamental miscarriage of justice,” id.,

because the applicant has made a “credible” showing of actual innocence, McQuiggin v.

Perkins, 569 U.S. 383, 392 (2013). See Frost, 749 F.3d at 1231.

b. Analysis

Mr. Phipps argues he met this burden to show exhaustion because he (1) informed

the state court in his memorandum of law supporting his postconviction motion that

9
“there [were] multiple issues infused into each claim of this motion,” COA Appl. at 6

(quoting St. Ct. R., Doc. 43, at 3 (available on St. Ct. R. CD, Doc. 43, in the district court

docket)); (2) “framed the issues in his IAC motions as United States Constitutional

violations,” id.; and (3) cited “numerous” Supreme Court, Tenth Circuit and other federal

appellate decisions to support the alleged constitutional issues, id.

Mr. Phipps fails to cite to any part of the state court record demonstrating that he

fairly presented a specific non-IAC constitutional claim to the state court. He may not

rely on mere conclusory allegations and must instead support his arguments with

“citations to the authorities and parts of the record on which [he] relies.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir. 2005) (internal quotation

marks omitted). Mr. Phipps’s briefing of the exhaustion issue is deficient under this

standard, which forfeits appellate consideration of this issue. See id. at 841; see also

Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

Even if we were to overlook Mr. Phipps’s deficient briefing, his conclusory

assertions fail to meet his burden of demonstrating exhaustion of his available state

remedies for each non-IAC claim included in Claims 1-7 of his habeas application. Nor

does he offer any reason for jurists to debate the district court’s ruling that his IAC claims

did not fairly present his allegations of separate and analytically distinct constitutional

violations to the state court for decision.6

6
See, e.g., Procedural Order, R. Vol. 2 at 185-86 (citing Kimmelman v. Morrison,
477 U.S. 365, 374-75 (1986) (explaining that applicant’s Sixth Amendment IAC claim
alleging counsel failed to pursue a Fourth Amendment claim was not identical to the

10
 Not only has Mr. Phipps failed to show exhaustion of his non-IAC claims, he has

not even attempted to contest the district court’s determination that they are subject to

anticipatory procedural bar. Further, he has not shown sufficient cause for failure to raise

these claims or shown that he is actually innocent.

We thus deny Mr. Phipps’s request for a COA on the district court’s dismissal of

the non-IAC constitutional claims as unexhausted, subject to anticipatory procedural bar,

and procedurally defaulted.

2. Claims Dismissed on the Merits

The claims that remained after the district court’s exhaustion and procedural

default analysis each alleged Mr. Phipps received ineffective assistance of counsel in

violation of the Sixth Amendment.

a. Legal background—ineffective assistance of counsel

The Supreme Court clearly established the ineffective assistance of counsel

standard in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a

showing of (1) deficient performance that (2) causes prejudice. Id. at 687. The first step

requires showing that defense counsel “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Id. The

defaulted Fourth Amendment claim because the claims are “distinct, both in nature and in
the requisite elements of proof”); White v. Mitchell, 431 F.3d 517, 525-26 (6th Cir. 2005)
(holding claim that counsel was ineffective for failing to raise equal protection challenge
to jury selection did not exhaust related claim that prosecution violated applicant’s right
to equal protection in selecting the jury); Rose v. Palmateer, 395 F.3d 1108, 1110-12
(9th Cir. 2005) (holding claim that counsel was ineffective for failing to seek suppression
of confession did not exhaust claim that confession was involuntary because the claims
are distinct and must be “separately and specifically presented to the state courts”)).
11
performance assessment is “highly deferential.” Id. at 689. Counsel’s actions are

presumed to constitute “sound trial strategy.” Id. (internal quotation marks omitted). At

the second step, Strickland requires a demonstration that counsel’s errors and omissions

resulted in actual prejudice, id. at 687; that is, “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

When coupled with AEDPA, the Strickland standard is doubly deferential. See

Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Knowles v. Mirzayance, 556 U.S. 111,

123 (2009). This is so because “[w]e take a highly deferential look at counsel's

performance,” as required by Strickland, “through the deferential lens of § 2254(d).”

Cullen, 563 U.S. at 190 (internal quotation marks omitted).

b. Analysis of the claims

i. Causing Mr. Phipps to plead guilty to a crime of violence

In Claim 1 of his habeas application, Mr. Phipps asserted his counsel misled and

coerced him into pleading guilty to a crime of violence. He alleged that he would have

gone to trial rather than “plead[] guilty to a crime of violence, or a crime associated with

violence in any way.” R. Vol. 1 at 255 (internal quotation marks omitted).

The CCA held this claim failed both prongs of the Strickland standard. It found

counsel’s performance was not deficient because (1) he reasonably construed his client’s

position to be that he would never plead guilty to a crime that involved violence;

(2) counsel informed the court at the plea hearing that Mr. Phipps denied using or

12
threatening violence when he sexually assaulted his step-daughter; and (3) the crime to

which Mr. Phipps pled guilty, sexual assault on a child by a person in a position of trust

as part of a pattern of sexual abuse, see Colo. Rev. Stat. § 18-3-405.3(1), (2)(b), is neither

defined as a crime of violence nor includes the use or threat of violence as one of its

elements. See Phipps, 411 P.3d at 1166. On the prejudice prong, the CCA concluded

Mr. Phipps’s own statement of reasons to the court for pleading guilty—that he wanted to

take full responsibility for his crime and not put the victim and his family through the

ordeal of a jury trial—established there was no reasonable probability that he would have

proceeded to trial but for his counsel’s allegedly deficient performance on this issue. See

id.

Mr. Phipps argued in his habeas application that the CCA erred in concluding he

had not pled guilty to a crime of violence because his non-violent crime was treated as a

crime of violence for sentencing and thus was considered a “per se” crime of violence

under Colorado law. Chavez v. People, 359 P.3d 1040, 1043 (Colo. 2015). But

Mr. Phipps has not shown to be erroneous the CCA’s factual findings that his counsel

reasonably understood his client would not plead guilty to a crime that involved violent

conduct and that he and Mr. Phipps both informed the state court of this position.7 Under

AEDPA, these factual findings are presumed correct unless the habeas applicant rebuts

them by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

7
Mr. Phipps declares in his COA application that the “crime of violence” issue is
separate from the “violent crime” issue. COA Appl. at 10. To the extent he intended this
as a challenge to the district court’s assessment of the CCA’s decision on this issue, he
failed to explain the basis for this challenge or support it with citations to the record.
13
 The only evidence Mr. Phipps mentions is “material evidence in letters not yet

allowed in the record.” COA Appl. at 10. But AEDPA limits review of a state court

decision to the record that was before the state court. See Cullen, 563 U.S. at 181

(limiting review under § 2254(d)(1) to “the record that was before the state court that

adjudicated the claim on the merits”); 28 U.S.C. § 2254(d)(2) (limiting review “to the

evidence presented in the State court proceeding”).8 As a result, Mr. Phipps has not

overcome the presumption that these state court findings are correct.

The district court concluded Mr. Phipps had failed to demonstrate that the CCA’s

rejection of this IAC claim was contrary to or involved an unreasonable application of

clearly established federal law or was based on an unreasonable determination of the

8
At some points in his COA application, Mr. Phipps appears to argue that the
district court erred by not holding an evidentiary hearing that would have allowed him to
present evidence that was not considered by the Colorado courts. But AEDPA limits the
availability of a federal evidentiary hearing in habeas proceedings, providing a hearing
shall not be held unless the applicant makes certain showings. See 28 U.S.C.
§ 2254(e)(2); Milton v. Miller, 744 F.3d 660, 672-73 (10th Cir. 2014). Mr. Phipps has
not attempted to demonstrate that he complied with AEDPA’s requirements for obtaining
an evidentiary hearing. In particular, he has not shown that the evidence he would
present in a hearing could not have been discovered and presented to the state court
through the exercise of due diligence. See Milton, 744 F.3d at 672-73 (stating that
“where a state habeas petitioner has failed to develop the factual basis of a claim in State
court proceedings,” he “must show that he made a reasonable attempt, in light of the
information available at the time, to investigate and pursue claims in state court in the
manner prescribed by state law” (internal quotation marks omitted)). Under these
circumstances, the district court did not abuse its discretion in failing to hold an
evidentiary hearing. See Fairchild, 579 F.3d at 1147 (applying abuse of discretion
standard to denial of evidentiary hearing). Mr. Phipps is not entitled to a COA on this
issue because reasonable jurists would not debate the district court’s denial of an
evidentiary hearing. Even if a COA were not required, see Harbison v. Bell, 556 U.S.
180, 183 (2009), the foregoing discussion shows no error.

14
facts in light of the evidence presented in the state court. R. Vol. 2 at 359-61. Mr. Phipps

has not demonstrated that reasonable jurists would debate the district court’s conclusion.

We therefore deny a COA on this claim.

ii. Failing to raise a Fourth Amendment challenge to the search of his
home computer9

In Claims 2 and 3 of his § 2254 application, Mr. Phipps alleged his counsel was

ineffective because he failed (1) to raise a Fourth Amendment challenge to the police’s

initial remote warrantless search of his home computer and (2) to investigate and prove

that law enforcement lied about the software on his computer in the affidavit supporting

the search warrant for the computer. The CCA rejected both claims, holding counsel’s

inaction, even if it constituted deficient performance, did not prejudice Mr. Phipps

because both the initial remote search and the search warrant were lawful. See Phipps,

411 P.3d at 1163.

On the remote search, the CCA held that Mr. Phipps, having downloaded a

peer-to-peer sharing software, did not have a legitimate expectation of privacy in the

home computer files. See id. at 1162-63. The warrantless search thus did not violate the

Fourth Amendment. In reaching this conclusion, the CCA considered and rejected as

9
The Supreme Court has held that defendants may not bring Fourth Amendment
challenges in habeas proceedings when they could have raised the same challenges in
pretrial proceedings. Stone v. Powell, 428 U.S. 465, 494 (1976). But a habeas petitioner
may allege counsel was ineffective for failure to move to suppress. In Kimmelman v.
Morrison, 477 U.S. 365, 382-83 (1986), the Supreme Court held that although habeas
petitioners may not raise Fourth Amendment arguments, they may allege counsel’s
ineffectiveness for failing to file a timely motion to suppress evidence allegedly obtained
in violation of the Fourth Amendment.

15
immaterial Mr. Phipps’s argument that the remote search was unlawful because the

police improperly identified the peer-to-peer sharing software he had downloaded as

LimeWire, when in fact he had downloaded LimeWire’s sister program, FrostWire. See

id. at 1162 n.3. The CCA also rejected Mr. Phipps’s argument that he retained a

reasonable expectation of privacy in his home computer files because he intended to keep

them private and was not aware that they were publicly available through the peer-to-peer

sharing software he had installed. See id. at 1163. The CCA further concluded that

because the initial remote search of Mr. Phipps’s computer was lawful and discovered

unlawful child pornography, the resulting issuance of the search warrant also was lawful.

See id.

In his habeas application, Mr. Phipps renewed his claims that the remote search

and search warrant were unlawful because the police and the state courts misidentified

the peer-to-peer sharing software he used as LimeWire and he subjectively had intended

to keep his home computer files private. The district court rejected the first contention

because he had not presented clear and convincing evidence to overcome the CCA’s key

factual finding that police had discovered child pornography on Mr. Phipps’s computer

because he had installed peer-to-peer sharing software. See R. Vol. 2 at 364-65. It

further found the CCA had correctly relied upon relevant Fourth Amendment authority in

concluding Mr. Phipps had no reasonable expectation of privacy in the files downloaded

to a publicly accessible folder through file sharing software. See id. at 365-66. As a

result, Mr. Phipps had not shown that his counsel’s failure to raise a Fourth Amendment

challenge to the computer searches was objectively unreasonable or that he was

16
prejudiced by his counsel’s inaction. The district court therefore concluded that the

CCA’s denial of these IAC claims was not contrary to or involved an unreasonable

application of clearly established federal law or was based on an unreasonable

determination of the facts. See id. at 366-67.

Mr. Phipps does not address the district court’s conclusions under AEDPA in his

COA application or address the legal authority on which the CCA relied in deciding the

computer searches were lawful. He thus has not demonstrated that reasonable jurists

would debate the district court’s denial of habeas relief on these claims. We deny a COA

on them.

iii. Computer evidence and the state’s forensic procedures

1) Claims 4, 5, 6

In Claims 4, 5 and 6, Mr. Phipps asserted his counsel failed to investigate or hire

an expert to review the computer evidence against him or the state’s forensic procedures.

He also alleged that his counsel did not ensure that the state preserved the computer

evidence and the results of its “botched” forensic examination. R. Vol. 1 at 267; see id.

at 266-69.

The CCA rejected these claims because Mr. Phipps appeared to assert that the

computer evidence, if properly investigated, would have shown that he never shared

pornographic material on the internet. The CCA held this assertion was irrelevant to the

crime of sexual assault on a child, the only charge to which Mr. Phipps pled guilty, or the

other charged crimes. See Phipps, 411 P.3d at 1164. Further, the CCA held, even if his

counsel’s performance was deficient as alleged, Mr. Phipps could not establish prejudice

17
because he “admitted that he possessed numerous files containing child pornography on

his computer, and that he had produced a video of him sexually assaulting his underage

stepdaughter.” Id.

The district court denied habeas relief on these claims. It determined that

Mr. Phipps had not demonstrated that the CCA’s decision was contrary to or was an

unreasonable application of clearly established federal law or was based on an

unreasonable determination of the facts in light of the evidence before the state court.

See R. Vol. 2 at 368-69.

In his COA application, Mr. Phipps does not address the district court’s

conclusions. He instead insists the computer evidence, if properly investigated and

preserved, would have (1) substantiated his Fourth Amendment claims relating to the

searches of his home computer, and (2) been essential to his defense in other unexplained

ways. He also asserts he would not have pled guilty to sexual assault on a child if he had

known his counsel had not addressed the computer evidence to his satisfaction.

These arguments are conclusory and unsupported by record citations or authority.

Mr. Phipps fails to explain how investigation and preservation of the computer evidence

or the state’s forensic examination pertained to his crime of sexual assault on a child or

his decision to plead guilty to this crime. Most important, these arguments fail to show

that reasonable jurists would debate the district court’s denial of habeas relief on these

claims under AEDPA’s strict standards.

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 2) Claim 7

Mr. Phipps raised a related claim in Claim 7. He alleged that his counsel was

ineffective because he did not inform him that the state had “wiped” or destroyed the

hard drive on his home computer after examining it and that he would not have pleaded

guilty if he had known this had happened.

The CCA rejected this claim, concluding the record demonstrated Mr. Phipps’s

counsel had advised him this evidence might not be preserved. See Phipps, 411 P.3d

at 1165. The CCA said Mr. Phipps also had not shown prejudice because, in view of his

own admissions and “the overwhelming evidence of his guilt, there is no reasonable

likelihood that Phipps would have changed his decision to plead guilty merely because

evidence of his crimes might be destroyed.” Id.10

The district court found Mr. Phipps’s conclusory allegations in his habeas

application failed to demonstrate the CCA court ruling was contrary to or involved an

unreasonable application of clearly established law or was based on an unreasonable

determination of the facts. See R. Vol. 2 at 369-71. Mr. Phipps does not squarely

address this conclusion in his COA application or put forward any reason that reasonable

jurists might debate it. We deny a COA on this issue.

10
For example, Mr. Phipps admitted to sexually assaulting his step-daughter
during his allocution at the sentencing hearing and later in a motion for reconsideration of
his sentence.
19
 iv. Falsifying transcripts

In Claim 7, Mr. Phipps contends his counsel conspired with the state to falsify the

transcript of his sentencing hearing. He alleged this transcript was altered to omit the

prosecutor’s statements about wiping the hard drives on Mr. Phipps computer and not

conducting a professional forensic examination of the computer evidence.

The CCA rejected this claim, finding there was “no evidence whatsoever on this

record that the sentencing transcript was altered” and that Mr. Phipps had not identified

how he was prejudiced by the alleged alteration. Phipps, 411 P.3d at 1166. The district

court denied habeas relief after concluding Mr. Phipps had not demonstrated the CCA’s

ruling was contrary to or involved an unreasonable application of clearly established

federal law or was based on an unreasonable determination of the facts in light of the

state court record. See R. Vol. 2 at 369-71.

Mr. Phipps’s arguments on this issue in his COA application are conclusory,

unsupported, and do not address the CCA’s and district court’s holdings that he had

failed to show any prejudice from his counsel’s participation in allegedly altering the

transcript. Reasonable jurists would not debate the district court’s denial of relief on this

claim, and we therefore deny a COA.

v. Sexual history interview required by plea agreement

Mr. Phipps argues in Claim 11 that his counsel failed to advise him that the sexual

history interview to which Mr. Phipps agreed in his plea agreement “may carry the risk of

20
prosecution” if he revealed past sexual crimes during the interview. R. Vol. 1 at 274.11

The CCA denied this claim because the record showed Mr. Phipps agreed to participate

in this review, “which would reasonably include past sexual crimes.” Phipps, 411 P.3d

at 1165.

The district court held Mr. Phipps had failed to demonstrate that the CCA’s

decision was contrary to or based on an unreasonable application of clearly established

federal law or was based on an unreasonable determination of the facts as required to

obtain habeas relief under AEDPA. See R. Vol. 2 at 371-73. In his COA application,

Mr. Phipps does not address the district court’s conclusion or its examination of this

claim under AEDPA. At no time has Mr. Phipps identified clearly established Supreme

Court law on this issue. Reasonable jurists would not debate that Mr. Phipps failed to

show he is entitled to habeas relief on this claim.

vi. Parole eligibility

In Claim 13, Mr. Phipps asserted his counsel erroneously advised him that he

would be eligible for parole after serving “60% or less” of his prison sentence. R. Vol. 1

at 275. Instead, he claimed he is not eligible for parole until he serves 100 percent of his

sentence, and that he would not have pled guilty if he had known this.

The CCA denied this claim upon finding Mr. Phipps acknowledged in his plea

agreement that he understood he would be eligible for parole only “upon completion of

the minimum incarceration specified in the indeterminate sentence.” Phipps, 411 P.3d

11
Mr. Phipps does not assert that either possibility, self-incrimination or
prosecution, has come to pass.
21
at 1165 (internal quotation marks and emphasis omitted). The court also held that even if

the advice Mr. Phipps received from counsel conflicted with the plea agreement,

Mr. Phipps could not seek postconviction relief on this basis because he had not asked the

state court to clarify the issue when given an opportunity to do so at the plea hearing. See

id. The district court denied habeas relief on this claim because Mr. Phipps had not

rebutted the presumption that the CCA’s factual finding regarding Mr. Phipps’s

knowledge of the parole requirements was correct or had not shown that the CCA’s

denial of the claim was contrary to or an unreasonable application of clearly established

federal law. See R. Vol. 2 at 374-75.

In his COA application, Mr. Phipps again fails to squarely address the basis for the

district court’s decision. Also, he makes the conclusory assertion that he would not have

pled guilty but for his counsel’s inaccurate advice on this issue because “he had nothing

to loose [sic] by insisting on trial.” COA Appl. at 50. But this statement conflicts with

the CCA’s finding, based on Mr. Phipps’s own statements at the sentencing hearing, that

he decided to plead guilty because it was “[t]he only right and proper choice” and that he

wished to take “full responsibility” for what he had done and to spare the victim and his

family “the horrific ordeal” of a jury trial. Phipps, 411 P.3d at 1166 (internal quotation

marks omitted). Reasonable jurists would not debate that the district court properly

denied this claim.

* * * *

As to each of his IAC claims, Mr. Phipps fails to address the AEDPA standards he

must meet to obtain habeas relief, and therefore fails to show that reasonable jurists could

22
debate the district court’s rejection of these claims. We find no basis on which to grant a

COA.

3. Cumulative-Error Claims

In Claims 9 and 12 of his habeas application, Mr. Phipps asserted that his

counsel’s deficient performance and deliberate lies to him “throughout the [state]

proceeding,” R. Vol. 1 at 272, resulted in cumulative error that prejudiced him. The

district court reviewed these claims without reference to AEDPA’s deferential standards

because Mr. Phipps asserted cumulative error in his state postconviction briefs and the

CCA did not address it. See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003)

(holding AEDPA standards do not apply when state courts have not denied claim on the

merits).

The district court held Mr. Phipps was not entitled to habeas relief on his

cumulative-error theory because the court had “not found two or more constitutional

errors during Mr. Phipps’s criminal proceedings that would warrant a cumulative-error

analysis.” R. Vol. 2 at 375; see Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir.

2013) (holding “the only otherwise harmless errors that can be aggregated [under the

cumulative-error doctrine] are federal constitutional errors” (internal quotation marks

omitted)). In his COA application, Mr. Phipps disagrees with the district court’s

conclusion that he failed to demonstrate constitutional errors, but offers no argument

casting doubt on this conclusion. He has not demonstrated a basis for reasonable jurists

to debate the district court’s denial of his cumulative-error claims.

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4. Denial of Motion to Compel

Finally, Mr. Phipps challenges the district court’s alleged failure to address his

“Motion to Object, Compel, and Sanction.” Mr. Phipps filed this motion on

September 10, 2018, months after the parties completed briefing on his § 2254

application and two days before the district court entered the Merits Decision dismissing

it. In the motion, Mr. Phipps accused the Respondents of defying the district court’s

standard order requiring them to file with the district court “a copy of the complete record

of [Mr. Phipps’s] state court proceedings . . ., including physical evidence that is relevant

to the asserted claims.” See R. Vol. 2 at 199. In his COA application, Mr. Phipps argues

the Respondents violated this order by not producing any physical evidence and that the

district court abused its discretion in dismissing this case without compelling

Respondents to do so.

Although the district court did not expressly rule on the motion, it effectively

denied it when it dismissed Mr. Phipps’s § 2254 application at the conclusion of the

Merits Order and entered judgment against him the next day. See Drake v. City of

Ft. Collins, 927 F.2d 1156, 1163 (10th Cir. 1991) (concluding district court’s order

dismissing plaintiff’s complaint impliedly denied pending motions). Mr. Phipps has not

shown the district court abused its discretion in doing so. See Norton v. City of Marietta,

432 F.3d 1145, 1156 (10th Cir. 2005) (applying abuse of discretion standard).

First, Mr. Phipps fails to demonstrate that the Respondents violated the district

court’s order regarding production of physical evidence. The order required only that

they include in the record “physical evidence [in the state court files] that is relevant to

24
the asserted claims.” R. Vol. 2 at 199. Mr. Phipps does not describe in his COA

application what allegedly relevant physical evidence the Respondents failed to produce.

It appears from the motion that he was referring primarily to the hard drives and other

computer-related evidence seized from his home. The state court records show that this

and other physical evidence from his home was destroyed or wiped clean and returned to

his family under to the “Evidence Disposition Agreement” that Mr. Phipps signed on the

same day as his sentencing hearing. See St. Ct. R., Doc. 15, at 62-67. These items

therefore would not have been in the state files for the Respondents to produce.

Mr. Phipps also acknowledged in his habeas application that the computer

evidence was not preserved because he alleged he received ineffective assistance of

counsel based on its destruction. To the extent Mr. Phipps asserts the Respondents

should have produced other physical evidence in response to the district court’s order, his

allegations are vague and conclusory and are therefore inadequate. See Garrett, 425 F.3d

at 840-41.12

12
Mr. Phipps was not diligent in seeking to compel disclosure of any allegedly
relevant physical evidence. He first raised the issue in a motion filed with the district
court on April 13, 2018, before Respondents filed their answer to his application. The
district court denied this motion, holding it was premature and that Mr. Phipps had not
shown a specific need for the evidence, but also stated Mr. Phipps could renew the
motion after the Respondents answered “if he can demonstrate that specific portions of
the record are necessary to establish that he is entitled to federal habeas relief.” R. Vol. 2
at 219. But Mr. Phipps did not renew this request until September 10, 2018, four and half
months after the Respondents filed their answer and more than three months after
Mr. Phipps filed his reply. If Mr. Phipps believed specific physical evidence was in the
state court file and was necessary to establish his entitlement to habeas relief, he should
have renewed his motion before briefing was completed on his habeas application.
25
 Finally, even assuming the district court abused its discretion in failing to grant the

motion, this error is harmless if it did not affect Mr. Phipps’s substantial rights.

See Fed. R. Civ. P. 61 (“At every stage of the proceeding, the court must disregard all

errors and defects that do not affect any party’s substantial rights.”). Based on our review

of the motion and Mr. Phipps’s argument we conclude the district court’s error, if any,

was harmless under this standard. Mr. Phipps is not entitled to a COA on this issue

because reasonable jurists would not debate the district court’s denial of his motion to

compel. Further, even if a COA were not required, see Harbison v. Bell, 556 U.S. 180,

183 (2009), the foregoing discussion shows no error.

III. CONCLUSION

Mr. Phipps has failed to show that reasonable jurists would find the district court’s

thorough and well-reasoned assessment of his § 2254 application debatable or wrong.

Nor is there any basis for reasonable jurists to debate the district court’s denial of

Mr. Phipps’s late-filed motion regarding the state court record. We therefore deny his

application for a COA and dismiss this matter. And because Mr. Phipps has not

presented “a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal,” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (internal

quotation marks omitted), we deny leave to proceed IFP and order him to pay the balance

of the appellate filing fees.

Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge

26