United States District Court, D. Kansas
MEMORANDUM AND ORDER
Philip Andra Grigsby pled guilty to eight counts of sexual
exploitation of a child, one count of possession of child
pornography, and one count of felon in possession of a
firearm, and was sentenced to a lengthy term of imprisonment.
(Dkt. 78). Grigsby subsequently challenged his conviction
both on direct appeal (Dkt. 80) and in a subsequent
collateral attack under 28 U.S.C. § 2255. (Dkt.
173). The matter is now before the court on the
defendant's Motion to Withdraw Guilty Plea. (Dkt. 314).
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). See United States v.
Williams, 790 F.3d 1059, 1068 (10th Cir. 2015) (motion
to withdraw guilty plea treated as second or successive
petition); United States v. Mata-Soto, 2018 WL
1877468, *2-3 (D. Kan. April 19, 2018) (finding motion to
withdraw plea was barred as a successive collateral attack as
an attack on defendant's underlying conviction).
the successive nature of Grigsby's collateral motion,
this court may dismiss the motion, or transfer it to the
Tenth Circuit if it determines that it is in the interest of
justice pursuant to 28 U.S.C. § 1631. See In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Dismissal
rather than transfer may be appropriate where the
defendant's claim would not meet the authorization
standards of 28 U.S.C. § 2255(b). Phillips v.
Seiter, 173 F.3d 609, 610 (7th Cir. 1999). That
provision authorizes a successive collateral motion where
there is newly discovered evidence that if proven and viewed
in light of the evidence as a whole would establish by clear
and convincing evidence that no reasonable factfinder would
have found defendant guilty of the offense; or where there is
a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
court declines to transfer the motion to the Tenth Circuit
for the determination of whether to authorize a successive
§ 2255 motion. Here, Grigsby cites no newly discovered
evidence, and argues instead that his plea was invalid
because he did not “know” he was a felon in
possession of a firearm, citing United States v.
Rehaif, 139 S.Ct. 2191 (2019), in which the Supreme
Court interpreted the “knowingly” requirement of
§ 922(g). But Rehaif presented a question of
statutory interpretation rather than constitutional rights,
see United States v. Class, 2019 WL 3242381, *7
(D.C. Cir. July 19, 2019), and moreover has not been made
retroactively applicable to cases on collateral review.
See United States v. Shobe, 2019 WL 3029111, *2
(N.D. Okla. July 11, 2019) (dismissing for lack of
jurisdiction § 2255 claim premised in part on
court declines to issue a certificate of appealability under
Rule 11 of the Rules Governing Section 2255 Proceedings. A
certificate of appealability may issue only if the applicant
has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). Such a
certificate may issue where “reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Saiz v.
Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting
Tennard v. Dretke, 542 U.S. 274, 282 (2004)). For
reasons stated above, the Court finds that defendant has not
satisfied this standard. The Court therefore denies a
certificate of appealability as to its ruling on
defendant's Section 2255 motion.
the court declines defendant's request for appointment of
counsel, as such appointment would in no way avoid the
conclusions otherwise reached herein.
ACCORDINGLY ORDERED this day of July, 2019, that
defendant's Motion to Withdraw Guilty Plea and for
Appointment (Dkt. 314), which the court construes as a second
or successive motion to vacate sentence under 28 U.S.C.
§ 2255, is DISMISSED for lack of jurisdiction, and that
a certificate of appealability as to the ruling on
defendant's Section 2255 motion is DENIED.
 The Tenth Circuit has denied
defendant's reqeusts for authorization for successive
§ 2255 motions in 2017 (Dkt. 255) and ...