govinfo:USCOURTS-ksd-6_12-cr-10174-19

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
 
  
UNITED STATES OF AMERICA, 
  Plaintiff,  
 
 vs.       No. 12-10174-JTM 
 
PHILIP ANDRA GRIGSBY,  
  Defendant. 
 
 
 
 
MEMORANDUM AND ORDER 
 
 Defendant 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 several motions  related to the no -contact 
order which was made a part of the judgment in the present matter. Th ese motions 
reflect the latest effort by Grigsby to vacate the order prohibiting him from contacting 
his former wife and two children. The denial of these prior motions has been 
consistently upheld by the Tenth Circuit. See United States v. Grigsby , 630 F.  App'x 838, 
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842 (10th Cir. 2015) ; United  States  v.  Grigsby ,  700  F.  App'x  880  (10th  Cir.  2017);  
United  States  v.  Grigsby,  737  F.  App'x  375,  378  (10th  Cir.  2018). 
 In response to the present series of motions, t he government argues that  the 
court should deny relief because the court lacks jurisdiction, as Gri gsby is challenging 
an aspect of his sentence, and thus effectively presenting yet another successive 28 
U.S.C. § 2255 challenge . If the court does consider the matter as a request f or relief 
under Rule 60(b), the government argues that it is untimely, as it was filed some six 
years after the judgment, and made without any showing of why the time limit s of Rule 
60(b) should be tolled. The government argues that the court had the inher ent and 
independent power to impose such an order, and that  after the passage of the victim’s 
rights act, only a party protected by such an order — not the defendant — may petition 
for its removal. See 18 U.S.C. § 3771(e)(2)(B).  
 The court first determines that it should resolve the pending motions as requests 
for relief under Rule 60(b). The government’s argument that the motions are actually 
attacks on the judgment itself does find some support in that document. Immediately 
after imposing the sentence of  260 years imprisonment , and still under the heading of 
“IMPRISONMENT,” the Judgment provides:  “The  Court  orders  that  the  defendant  
does  not  have  any  contact  with  the  victim  and/or  her  family  members  to  include  
her  mother and brother.” (Judgment, at 3). The court separately provide d, as one of the 
Special Conditions of Supervision , that defendant:  “Comply with prohibitions on 
contact with victim(s) of the offense,” (id. at 6), but this restriction only applies when 
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Grigsby is on Supervision, which will occur “(u)pon release from imprisonment.” ( Id. at 
4).   
 The government recognizes that i n its most recent decision, the Tenth Circuit 
addressed the issue and determined the no -contact order “is a civil injunction pursuant 
to its ancillary jurisdiction—not a part of Grigsby’s sentence that he must attack under § 
2255.” However, the government argues that this characterization is dicta, as the court 
proceeded to uphold the denial of the challenge to the order . Further, the government  
notes that other courts have uph eld no -contact orders as part of an original sentence 
(United States v. Morris , 259 F.3d 894, 900 (7th Cir. 2001 ); Capozzi v. United States , 2014 
WL 1572714 at *4–5 (D. Mass. Apr. 16,  2014)), and that the Tenth Circuit itself rejected a 
series of attacks by the defendant, including a challenge to the no -contact order by 
stating: 
To begin, the conditions of Mr. Grigsby's supervised release are not part of 
the restitution judgment but part of his sentence . However, when he appealed 
his sentence, Mr. Grigsby failed to contest the conditions of his supervised 
release, including the special condition prohibiting him from contacting 
the minor child. While Federal Rule of Criminal Procedure 32.1(b) allows 
a def endant to file for modification of a special condition of supervised 
release while still incarcerated, see United States v. Pugliese , 960 F.2d 913, 
914–15 (10th Cir.1992), Mr. Grigsby's motion is woefully premature, given 
he only began serving his 260 –year sentence in 2013, and he has not 
provided any legitimate change in circumstance to support modifying the 
prohibition of his contacting the minor victim, against whom he 
committed a multitude of abhorrent sexually -abusive acts, or any minor 
child for that matter. 
 
United States v. Grigsby, 579 F. App'x 680, 686 (10th Cir. 2014) (emphasis added). 
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 The court finds no substantial conflict. The first portion of the 2014 decision 
addressed Grigsby’s attack on various aspects of the restitution judgment, and the cited 
passage simply differentiates the restitution aspect of the judgment from the sentencing 
portion. Even if the language of the 2018 decision might be viewed as dicta, is  directly 
applicable and the court finds to reason to reach a different conclusion . The no -contact 
order is grounded on the court’s ancillary civil jurisdiction, and may be addressed by a 
Rule 60(b) motion; it is not a successive § 2255 motion. 
 The court considers defendant’s motion as presented pursuant to Rule 60(b), and 
denies it on the merits.1 The defendant previously sought the removal of the no -contact 
order because “he has made substantial progress toward rehabilitation in prison.” 737 
Fed.Appx. at 378. The Tenth Circuit determined in 2018 that this was insufficient to 
require removal of the no-contact order. In reaching this decision, the court noted the 
particularly heinous nature of the defendant’s offense, and noted that the court might 
reasonably require some objective evidence before modifying the order. Id. 
 The only thing different now is that this is 2020 rather than 2018. The particularly 
heinous nature of the underlying offenses has not changed. Again, Grigsby supports his 
motion for relief with generic and unconvincing subjective claims of rehabilitation.  
 The evidence presented in conjunction with Grigsby’s voluntary plea of guilt 
establishes not only the incredible severity of the offenses, but that he accomplished 
                                                 
1 Because the court finds that the motions should be denied on the merits, the court need not address the 
government’s additional arguments that the motions are untimely under Rule 60(b), and barred by 
Section 3771 as an attack on a victim protection order.  
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these offenses though ruthlessness, deceit, and manipulation. After the conviction, the 
court modified the restitution judgment to include substantial assets which Grigsby 
tried to hide from the court. The government has supplied evidence showing that 
Grigsby has attempted to circumvent the no-contact order by Facebook posts. While the 
defendant claims this account was one maintained by his mother, the screenshots and 
other materials presented to the court establish convincingly that Grigsby was using the 
account to violate the order of the court. 
 The government argues (Dkt. 326) that the Faceboo k posts by themselves should 
be sanctioned by den ying defendant’s challenge to the no -contact order, and further 
asks that the court prohibit defendant from filing additional challenges without leave of 
the court.  
 Grigsby has separately filed a request f or sanctions against the Assistant United 
States Attorney (AUSA) assigned to his case for “possible misconduct.” (Dkt. 310, at 2). 
The motion is denied, as Grigsby provides no evidence or reasonable basis for even 
suggesting that the AUSA’s contact with th e Bureau of Prisons was anything other than 
a good faith effort to determine whether and to what extent Grigsby attempted to evade 
the no -contact order. Grigsby again merely offers his flat denial of the attempted 
circumvention, and a one -page excerpt from a BOP Disciplinary Report, which rejected 
his defense that the Facebook page actually belonged to his mother, f inding he lacked 
credibility.  
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 The court finds that it has jurisdiction to address the challenge to the no -contact 
order, but denies this motion on the merits. As a sanction, the court hereby restricts and 
bars defendant from filing , without prior authorization by the court,  any further 
pleadings challenging the no -contact order for a period of two -years from the date of 
this Order. 
 In addition, Grigsby asks (Dkt. 320) for reconsideration of the court’s Order (Dkt. 
316) denying his motion to vacate and for appointment of counsel. The court dismissed 
Grigsby’s § 2255 motion, determining that it was a successive collateral attack on his 
conviction, and thus the court lacked jurisdiction. The court also declined to transfer the 
motion to the Tenth Circuit, determining under the circumstances that a transfer was 
not justified. The defendant’s present motion merely repeats or adds to arguments in 
support of his original motion. Accordingly, the motion for reconsideration is denied. 
 Defendant’s motion (Dkt. 321) for leave to file an appeal in forma pauperis is 
denied as moot.  Grigsby independently filed a notice of appeal (Dkt. 317), and the 
Tenth Circu it recently addressed the issue and denied leave to proceed without 
payment of costs. (Dkt. 332). The court also denied a leave for certificate of appealability 
on the issue.  
 IT IS ACCORDINGLY ORDERED this day of March, 2020, that the defendant’s 
Motions for Removal (Dkt. 310), for Reconsideration (Dkt. 320), for Leave to Proceed 
(Dkt. 321), for Leave to Amend (Dkt. 323), for Order (Dkt. 327), and for Sanctions (Dkt. 
330) are all hereby denied. The government’s Sealed Request for Sanctions (Dkt. 326) is 
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granted as p rovided herein, and the Clerk of the Court shall give effect to the filing 
limitation set forth herein. 
 
 
   
 
 
      J. Thomas Marten 
      J. Thomas Marten, Judge 
 
 
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