United States v. Grigsby , 633 F. App'x 696 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 27, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3281
(D.C. Nos. 6:15-CV-01154-JTM and
PHILIP ANDRA GRIGSBY, 6:12-CR-10174-JTM-1)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before KELLY, LUCERO, and McHUGH, Circuit Judges.
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Philip Grigsby requests a certificate of appealability (“COA”) to appeal the
denial of his 28 U.S.C. § 2255 motion. Because reasonable jurists could not debate
the merits of Grigsby’s claims, we deny a COA and dismiss the appeal.
I
Grigsby pled guilty to multiple counts of sexual exploitation of a minor, one
count of possessing child pornography, and one count of being a felon in possession
of a firearm. He was sentenced to 260 years’ imprisonment, a sentence we affirmed
on direct appeal. United States v. Grigsby, 749 F.3d 908 (10th Cir. 2008). Grigsby
now seeks a COA to appeal the district court's denial of his motion, arguing his plea
*
This order is not binding precedent, except under the doctrines of law of the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.
was not knowing and voluntary, and that his counsel was ineffective at the sentencing
phase.
II
Grisby may not appeal the district court’s denial of his § 2255 motion without
a COA. § 2253(c)(1)(B). When a district court has rejected a constitutional claim on
the merits, a “petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong” for a
COA to be granted. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Construing Grigsby’s pleadings liberally, Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir.1991), he argues there is no proof in the record that his counsel
informed him of the consequences of a guilty plea, and thus his plea was not knowing
or voluntary. “[T]o determine whether a plea is voluntary, a court must assess
whether the defendant fully understood the consequences of the plea.” United States
v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990). We review the voluntariness of a
plea de novo. Id. at 1455.
The thorough work of the district court demonstrates that Grigsby’s plea was
knowing, intelligent, and voluntary. During a lengthy colloquy with Grigsby, the
district court ensured that he understood each of the ten charges to which he was
pleading guilty, reviewed the potential sentence for each count, explained to Grigsby
that he was pleading guilty without any sort of agreement, made sure that Grigsby
had reviewed each of the charges with his attorney, and informed Grigsby that by
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pleading guilty, he was waiving his right to a jury trial. One colloquy is particularly
clear:
THE COURT: You're telling me that you have met at length with [your
attorney], and that you fully understand each of the charges and the
potential penalties?
THE DEFENDANT: Yes, Your Honor, I accept responsibility for them
all.
Moreover, Grigsby’s attorney stated he had reviewed the charges and potential
penalties for each offense carefully with Grigsby, and was satisfied that
Grigsby understood both. Grigsby’s plea was knowing, intelligent, and
voluntary. No reasonable jurist could debate this holding.
Grigsby additionally claims that his attorney was deficient by failing to
argue that the testimony of an expert witness was inadmissible at sentencing.
A defendant’s claim premised on ineffective assistance of counsel must show
“his counsel’s performance was so prejudicial that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” United States v. Ruth, 100 F.3d 111,
113 (10th Cir. 1996). Grigsby argues that the expert’s testimony was outside
the scope of his expertise, but the only evidence Grigsby provides to support
this claim is a civil suit he brought against the expert for fraudulent
misrepresentation and malpractice, which was dismissed. Grisby v. Lemuz,
609 F. App’x 551, 552-53 (10th Cir. 2015) (unpublished). The admission of
the claimed evidence would not alter the outcome of Grigsby’s sentencing
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hearing and thus his claim fails. Reasonable jurists could not debate this
result.
Grigsby separately argues that his attorney was ineffective for failing to
argue for the admission of certain evidence about the sexual and medical
history of one of his victims. But it is unclear why he thinks this evidence is
relevant. To the extent Grigsby asserts the evidence would prove he did not
commit the charged crime, his knowing guilty plea forecloses any collateral
attack on the conviction. See United States v. Broce, 488 U.S. 563, 569
(1989). To the extent he argues such evidence would be relevant at the
sentencing phase, he has not attempted to show that his sentence would be
different if the district court had admitted this evidence during the sentencing
hearing. He thus has not demonstrated any error was prejudicial. See Ruth,
100 F.3d at 113.
III
We DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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