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

                            FOR THE TENTH CIRCUIT                             February 5, 2020
                        _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 19-3163
                                                    (D.C. Nos. 6:15-CV-01154-JTM &
 PHILIP ANDRA GRIGSBY,                                   6:12-CR-10174-JTM-1)
                                                                (D. Kan.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
                 _________________________________

       Philip Andra Grigsby, proceeding pro se, seeks a certificate of appealability

(COA) to appeal from the district court’s order treating his Motion to Withdraw Guilty

Plea as a second or successive 28 U.S.C. § 2255 motion and dismissing it for lack of

jurisdiction. We deny Mr. Grigsby’s request for a COA and dismiss this matter.

       In May 2013, Mr. Grigsby pleaded guilty to eight counts of sexual exploitation of

a child in violation of 18 U.S.C. § 2251(a), one count of possession of child pornography

in violation of 18 U.S.C. § 2252(a)(4)(B), and one count of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 260


       
         This order is not binding precedent except under the doctrines of law of the case,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.
years in prison and we upheld his sentence on direct appeal. He then filed a § 2255

motion to collaterally attack his sentence. The district court denied his § 2255 motion,

and we denied his request for a COA.

       In 2019, Mr. Grigsby filed a pro se Motion to Withdraw Guilty Plea. The district

court treated it as an unauthorized second or successive § 2255 motion and dismissed it

for lack of jurisdiction. Mr. Grigsby now seeks a COA to appeal from that decision.

       I. Discussion

       To obtain a COA from the district court’s procedural ruling, Mr. Grigsby must

show both “that jurists of reason would find it debatable whether the petition states 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 v.

McDaniel, 529 U.S. 473, 484 (2000). We need not address the constitutional question if

we conclude that reasonable jurists would not debate the district court’s resolution of the

procedural one. Id. at 485.

       A prisoner may not file a second or successive § 2255 motion unless he first

obtains an order from the circuit court authorizing the district court to consider the

motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district

court lacks jurisdiction to address the merits of a second or successive § 2255 motion.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       In his Motion to Withdraw Guilty Plea, Mr. Grigsby sought to withdraw his plea

“due to recent 18 U.S.C. §922(g) Statute changes made by the United States Supreme



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Court” and cited to Rehaif v. United States, 139 S. Ct. 2191 (2019).1 R., Vol. II at 412.

In its order, the district court explained that “[u]nder Fed.R.Crim.P. 11(e), once a

sentence has been imposed, the court may set aside a plea of guilty only as a consequence

of a direct appeal or collateral attack. Thus, although styled a motion to withdraw his

guilty plea, the defendant’s motion is in effect a request for relief under 28 U.S.C.

§ 2255, and is subject to the jurisdictional constraints on successive requests for relief

under 28 U.S.C. §§ 2244(b)(3) and 2255(h).” Id. at 416-17 (citing United States v.

Williams, 790 F.3d 1059, 1068 (10th Cir. 2015)2). Because Mr. Grigsby had not received

authorization to file a second or successive § 2255 motion, the district court dismissed the

motion for lack of jurisdiction.

       In his COA application, Mr. Grigsby contends he “has not filed a habeas

application” and “the [district] court has misconstrued [his] intention.” COA App. at 1.

He asserts his “motion is based on the [Rehaif decision, which] chang[ed] the

‘knowingly’ element of 18 U.S.C. § 922(g)[.]” COA App. at 1. He argues that “[t]he

district court erred in its understanding of the facts” and the Rehaif decision “has opened

a question of the legality of [his] charge of violating 18 U.S.C. § 922(g), thus requiring

[his] indictment to be reopened[.]” COA App. at 3.



       1
         In Rehaif, the Supreme Court held that “in a prosecution under 18 U.S.C.
§ 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant category of persons
barred from possessing a firearm.” 139 S. Ct. at 2200.
       2
         In Williams, we determined that a motion to withdraw a guilty plea should be
treated as a second or successive § 2255 motion. See 790 F.3d at 1067-68.
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       Mr. Grigsby has failed to show that reasonable jurists could debate the correctness

of the district court’s procedural ruling. We have explained that “[i]t is the relief sought,

not [the] pleading’s title, that determines whether the pleading is a § 2255 motion.”

United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). The district court

properly treated Mr. Grigsby’s Motion to Withdraw Guilty Plea as a second or successive

§ 2255 motion because “it in substance or effect assert[ed] or reassert[ed] a federal basis

for relief from [his] underlying conviction,” Spitznas v. Boone, 464 F.3d 1213, 1215

(10th Cir. 2006). We therefore deny Mr. Grigsby’s request for a COA and dismiss the

matter. We also deny his motion for leave to proceed without prepayment of costs and

fees. Mr. Grigsby is obligated to pay the filing fee in full.


                                               Entered for the Court



                                               CHRISTOPHER M. WOLPERT, Clerk




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