                                                                                 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.
                      _________________________________

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         This order is not binding precedent, except under the doctrines of law of the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



                                           -2-
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


                                            -3-
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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