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Jurisdiction: Court of Appeals for the Tenth Circuit
Decision Date: 3/21/2018



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States v. Grigsby United States v. Grigsby (10th Cir., 2018)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES OF AMERICA, Plaintiff - Appellee,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        PHILIP ANDRA GRIGSBY, Defendant - Appellant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 18-3014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        March 21, 2018

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (D. C. Nos. 6: 12-CR-10174-JTM-1 & 6: 15-CV-01154-JTM)(D. Kan. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER AND JUDGMENT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Before McHUGH KELLY and EID Circuit Judges.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Philip Andra Grigsby pleaded guilty to child-pornography and firearms offenses and was sentenced to 260 years in prison. United States v. Grigsby 749 F. 3d 908 909 (10th Cir. 2014). Several years after being sentenced, Grigsby filed (1) a motion to correct his presentence report (PSR) and (2) a Fed. R. Ci v. P. 60(b)(4) motion alleging that the criminal judgment was void. In a combined order, the district court denied the motion to correct and dismissed the Rule 60(b)(4) motion as an unauthorized second or

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        successive 28 U.S.C. § 2255 motion. The district court further denied a certificate of appealability (COA). Grigsby now appeals from the denial of the motion to correct and seeks a COA to appeal from the dismissal of the Rule 60(b)(4) motion. We affirm the denial of the motion to correct, and we deny a COA and dismiss that portion of the appeal that concerns the Rule 60(b)(4) motion.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. Denial of Motion to Correct

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Grigsby's motion to correct asserted that based on his PSR, Bureau of Prisons psychological personnel had mistakenly concluded in a risk assessment that Grigsby's victim was an acquaintance, not his daughter. Grigsby therefore requested that the PSR be amended to indicate that his victim was his minor daughter. The district court denied relief, holding that the risk assessment "simply sets out the worker's interpretation of the PSR, but offers nothing in the way of any independent information showing that the PSR was erroneous. " R Vol. 1 at 54.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Fed. R. Crim. P. 36 enables a court to "at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission. " Grigsby, however, has not pointed to any factual misinformation in the PSR. Rather, he complains that the PSR omitted certain information that he did not request earlier, but that he now would like to include (namely, that his victim was his minor daughter). As the district court held, Grigsby has failed to show any "error, " much less the clerical type of error that is subject to correction under Rule 36, see United States v. Lonjose 663 F. 3d 1292 1299 n. 7 (10th Cir. 2011); United States v. Blackwell 81 F. 3d 945 948-49 (10th Cir. 1996).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. Dismissal of Rule 60(b)(4) Motion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Grigsby's Rule 60(b)(4) motion alleged the judgment was void because the indictment lacked specificity. The district court held that "although styled as a Rule 60 motion, it is in fact a comprehensive attack on the conviction itself, and thus in reality is a successive 28 U.S.C. § 2255 motion. " R Vol. 1 at 54. Because this court had not authorized the motion, see 28 U.S.C. § 2255(h), the district court dismissed it for lack of jurisdiction, see In re Cline 531 F. 3d 1249 1251-52 (10th Cir. 2008) (per curiam).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        To appeal from this decision, Grigsby must obtain a COA. See United States v. Harper 545 F. 3d 1230 1233 (10th Cir. 2008). That requires him to show "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). Before this court, Grigsby focuses on the merits of his underlying claims. We do not consider the merits, however, because no reasonable jurist could debate the district court's procedural decision to dismiss the Rule 60(b)(4) motion for lack of jurisdiction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        "A § 2255 motion is one 'claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, . . . or is otherwise subject to collateral attack. '" United States v. Nelson 465 F. 3d 1145 1148 (10th Cir. 2006) (quoting 28 U.S.C. § 2255(a)). "It is the relief sought, not the pleading's title, that determines whether the pleading is a § 2255 motion. " Id. at 1149. Because Grigsby's motion alleged the district court lacked jurisdiction over his criminal

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        proceeding, no reasonable jurist could debate the district court's conclusion that it was effectively a § 2255 motion.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Grigsby has already pursued relief under § 2255. See United States v. Grigsby 633 F. App'x 696, 697 (10th Cir. 2016) (denying a COA). He therefore cannot file another § 2255 motion without this court's authorization. 28 U.S.C. § 2255(h). It is undisputed that Grigsby did not obtain such authorization, and without authorization, the district court had no jurisdiction to consider the filing, see Cline 531 F. 3d at 1251. The district court's choices were to dismiss the filing or transfer it to this court for authorization, see id. at 1252, and no reasonable jurist could debate the decision to dismiss.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The denial of the motion to correct the PSR is affirmed. A COA is denied and the portion of the appeal challenging the dismissal of the Rule 60(b)(4) motion is dismissed.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Entered for the Court                Per Curiam



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34. 1(G). The case is therefore ordered submitted without oral argument. This order and judgment 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.


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