UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

PHILIP ANDRA GRIGSBY, 

 Defendant - Appellant. 

No. 15-3281 

(D.C. Nos. 6:15-CV-01154-JTM and 

6:12-CR-10174-JTM-1) 

(D. Kan.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

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 This order is not binding precedent, except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

January 27, 2016

Elisabeth A. Shumaker 

Clerk of Court
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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