FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3275 (D.C. No. 6:12-CR-10174-JTM-1) PHILIP ANDRA GRIGSBY, (D. Kan.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Philip Grigsby, a federal prisoner proceeding pro se,1 appeals the district
court’s order denying his request to modify an order prohibiting him from contacting
his children. We conclude that the district court acted well within its discretion.
Accordingly, we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings, but we won’t act as Grigsby’s advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Background
Grigsby pleaded guilty in 2013 to nine charges related to the production and
possession of child pornography and one charge of being a felon in possession of a
firearm. The district court sentenced Grigsby to 260 years in prison. At the request of
their mother, the district court included two separate provisions in its judgment
prohibiting Grigsby from contacting his two children—one of whom was a victim of
Grigsby’s crimes. The district court imposed one of these provisions as a special
condition of supervised release and the other as a standalone order accompanying
Grigsby’s prison sentence.
On direct appeal, Grigsby only challenged the substantive reasonableness of
his sentence. We affirmed. See United States v. Grigsby, 749 F.3d 908, 908–09 (10th
Cir. 2014). Grigsby has since unsuccessfully filed multiple 28 U.S.C. § 2255 motions
to vacate his sentence. See United States v. Grigsby, 715 F. App’x 868, 869 (10th
Cir. 2018) (unpublished). Late last year, Grigsby filed a motion in district court
requesting that it modify the order preventing him from contacting his children while
in prison. Grigsby explained that he was five years into his sentence and had
completed a number of psychological, vocational, and religious programs. In light of
his progress, he asked the district court to modify the order to allow him to
communicate with his children under the Bureau of Prison’s supervision.
The district court commended Grigsby on his progress but concluded that it
wasn’t “appropriate to remove the no[-]contact order.” R. 94. The district court
elaborated that Grigsby didn’t “present any evidence that his participation in the
2 programs [was] to the point where his treatment providers [were] recommending
contact with his children.” Id. Moreover, it explained that Grigsby didn’t “present
any information showing that contact with his children would be in their best
interest.” Id. Grigsby appeals.
Analysis
Initially, to ensure that the district court had jurisdiction to hear Grigsby’s
motion to modify, we must resolve how to classify that motion. The district court
didn’t specify how it interpreted the motion, but the parties treat it as a motion to
modify Grigsby’s conditions of supervised release. See 18 U.S.C. § 3583(e). Yet
Grigsby makes clear in his motion and his briefing on appeal that he’s challenging
the district court’s order that he not contact his children while in custody—that is,
he’s challenging the district court’s standalone order instead of the condition of
supervised release. And because the plain language of § 3583 deals only with
conditions of “supervised release after imprisonment,” it doesn’t govern the no-
contact order that Grigsby challenges. § 3583 (emphasis added).
As this is not a § 3583 motion, it must be one of two things: (1) a second or
successive § 2255 motion, or (2) a Federal Rule of Civil Procedure 60(b) motion
seeking relief from a civil judgment. We conclude that Grigsby’s motion is the latter.
The district court’s no-contact order is a civil injunction pursuant to its ancillary
jurisdiction—not a part of Grigsby’s sentence that he must attack under § 2255.2 See
2 If the motion were the former, then the district court would have lacked jurisdiction to rule on it because Grigsby didn’t seek our permission to file a second
3 United States v. Morris, 259 F.3d 894, 900–01 (7th Cir. 2001) (upholding order
forbidding defendant from contacting child victim as exercise of district court’s
inherent power to protect administration of justice in criminal matters); cf. United
States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir. 1987) (explaining that district
courts exercising criminal jurisdiction have ancillary jurisdiction over the “case or
controversy in its entirety”). Accordingly, we read Grigsby’s motion as a motion for
relief from judgment pursuant to Rule 60(b)(5), which allows relief from a judgment
when “applying it prospectively is no longer equitable.” See United States v.
Holland, 214 F.3d 523, 526 (4th Cir. 2000) (explaining ancillary motion in criminal
case should be treated as civil if it concerns private injury instead of guilt and
punishment); cf. United States v. Morales, 807 F.3d 717, 722 (5th Cir. 2015) (treating
criminal defendant’s post-conviction motion to modify discovery protection order as
civil motion for purpose of Federal Rule of Appellate Procedure 4).
We review the denial of a Rule 60(b) motion for abuse of discretion and
reverse only “if a definite, clear[,] or unmistakable error occurred below.” Jackson v.
Los Lunas Cmty. Program, 880 F.3d 1176, 1191 (10th Cir. 2018) (quoting Zurich N.
Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)). Grigsby first argues
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3275 (D.C. No. 6:12-CR-10174-JTM-1) PHILIP ANDRA GRIGSBY, (D. Kan.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Philip Grigsby, a federal prisoner proceeding pro se,1 appeals the district
court’s order denying his request to modify an order prohibiting him from contacting
his children. We conclude that the district court acted well within its discretion.
Accordingly, we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se pleadings, but we won’t act as Grigsby’s advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Background
Grigsby pleaded guilty in 2013 to nine charges related to the production and
possession of child pornography and one charge of being a felon in possession of a
firearm. The district court sentenced Grigsby to 260 years in prison. At the request of
their mother, the district court included two separate provisions in its judgment
prohibiting Grigsby from contacting his two children—one of whom was a victim of
Grigsby’s crimes. The district court imposed one of these provisions as a special
condition of supervised release and the other as a standalone order accompanying
Grigsby’s prison sentence.
On direct appeal, Grigsby only challenged the substantive reasonableness of
his sentence. We affirmed. See United States v. Grigsby, 749 F.3d 908, 908–09 (10th
Cir. 2014). Grigsby has since unsuccessfully filed multiple 28 U.S.C. § 2255 motions
to vacate his sentence. See United States v. Grigsby, 715 F. App’x 868, 869 (10th
Cir. 2018) (unpublished). Late last year, Grigsby filed a motion in district court
requesting that it modify the order preventing him from contacting his children while
in prison. Grigsby explained that he was five years into his sentence and had
completed a number of psychological, vocational, and religious programs. In light of
his progress, he asked the district court to modify the order to allow him to
communicate with his children under the Bureau of Prison’s supervision.
The district court commended Grigsby on his progress but concluded that it
wasn’t “appropriate to remove the no[-]contact order.” R. 94. The district court
elaborated that Grigsby didn’t “present any evidence that his participation in the
2 programs [was] to the point where his treatment providers [were] recommending
contact with his children.” Id. Moreover, it explained that Grigsby didn’t “present
any information showing that contact with his children would be in their best
interest.” Id. Grigsby appeals.
Analysis
Initially, to ensure that the district court had jurisdiction to hear Grigsby’s
motion to modify, we must resolve how to classify that motion. The district court
didn’t specify how it interpreted the motion, but the parties treat it as a motion to
modify Grigsby’s conditions of supervised release. See 18 U.S.C. § 3583(e). Yet
Grigsby makes clear in his motion and his briefing on appeal that he’s challenging
the district court’s order that he not contact his children while in custody—that is,
he’s challenging the district court’s standalone order instead of the condition of
supervised release. And because the plain language of § 3583 deals only with
conditions of “supervised release after imprisonment,” it doesn’t govern the no-
contact order that Grigsby challenges. § 3583 (emphasis added).
As this is not a § 3583 motion, it must be one of two things: (1) a second or
successive § 2255 motion, or (2) a Federal Rule of Civil Procedure 60(b) motion
seeking relief from a civil judgment. We conclude that Grigsby’s motion is the latter.
The district court’s no-contact order is a civil injunction pursuant to its ancillary
jurisdiction—not a part of Grigsby’s sentence that he must attack under § 2255.2 See
2 If the motion were the former, then the district court would have lacked jurisdiction to rule on it because Grigsby didn’t seek our permission to file a second
3 United States v. Morris, 259 F.3d 894, 900–01 (7th Cir. 2001) (upholding order
forbidding defendant from contacting child victim as exercise of district court’s
inherent power to protect administration of justice in criminal matters); cf. United
States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir. 1987) (explaining that district
courts exercising criminal jurisdiction have ancillary jurisdiction over the “case or
controversy in its entirety”). Accordingly, we read Grigsby’s motion as a motion for
relief from judgment pursuant to Rule 60(b)(5), which allows relief from a judgment
when “applying it prospectively is no longer equitable.” See United States v.
Holland, 214 F.3d 523, 526 (4th Cir. 2000) (explaining ancillary motion in criminal
case should be treated as civil if it concerns private injury instead of guilt and
punishment); cf. United States v. Morales, 807 F.3d 717, 722 (5th Cir. 2015) (treating
criminal defendant’s post-conviction motion to modify discovery protection order as
civil motion for purpose of Federal Rule of Appellate Procedure 4).
We review the denial of a Rule 60(b) motion for abuse of discretion and
reverse only “if a definite, clear[,] or unmistakable error occurred below.” Jackson v.
Los Lunas Cmty. Program, 880 F.3d 1176, 1191 (10th Cir. 2018) (quoting Zurich N.
Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)). Grigsby first argues
that the district court should have granted him relief because he has made substantial
progress towards his rehabilitation in prison. We cannot conclude that the district
or successive § 2255 motion. See § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to address the merits of a second or successive § 2255 . . . claim until this court has granted the required authorization.”).
4 court unmistakably erred when it determined that Grigsby’s progress doesn’t warrant
modifying the no-contact order. Given the severity of Grigsby’s crimes,3 it was
reasonable for the district court to require more concrete evidence that contact
between Grigsby and his children would be in the children’s best interest before
modifying the no-contact order.4
Grigsby next argues that the no-contact order is an unconstitutional restraint
on his right to familial association. But Rule 60(b) affords him no relief on that
ground. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)
(explaining that Rule 60(b) relief may not be granted on arguments and supporting
facts available at time of judgment). Grigsby should have raised this argument on
direct appeal. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000) (“A Rule 60(b) motion is not intended to be a substitute for a direct appeal.”).5
Grigsby also argues that his mother has been prevented from seeing his
children (her grandchildren). But the district court didn’t unmistakably err by
3 In affirming Grigsby’s sentence on direct appeal, “[w]e decline[d] to recount the heinous facts underlying [his] convictions.” Grigsby, 749 F.3d at 909 n.2. We likewise decline to do so here. But we note that the district court gave Grigsby the statutory maximum prison sentence “because, among other things, his crimes involved (1) a family member who had not attained the age of twelve years and (2) material that portrayed sadistic or masochistic conduct or other depictions of violence.” Id. at 909 & n.2. 4 Even if we interpreted this as a § 3583(e) motion, we would agree with the government that the district court didn’t abuse its discretion and reach the same conclusion. See United States v. Begay, 631 F.3d 1168, 1170 (10th Cir. 2011) (reviewing § 3583(e) motion for abuse of discretion). 5 As the government argues, Grigsby also couldn’t raise this argument in a § 3583(e) motion. See United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997) (holding that legality of condition of supervised release may only be challenged on direct appeal or as collateral attack under § 2255).
5 declining to amend the no-contact order on these grounds. The no-contact order only
applies to Grigsby—not his mother. Thus, this alleged inequity doesn’t stem from the
district court’s order, and modifying the order wouldn’t alleviate it. Accordingly, we
affirm the district court’s order denying Grigsby’s request to modify the no-contact
order.
As a final matter, Grigsby asks us in his reply brief to strike the government’s
brief because it includes a statement of the issues, a statement of the case, and a
statement of the standard of review, all of which Grigsby says are unnecessary under
Federal Rule of Appellate Procedure 28. See Fed. R. App. P. 28(b) (specifying that
appellees’ briefs need not contain statements of issues, case, or standard of review
“unless the appellee is dissatisfied with the appellant’s statement”). We interpret
Grigsby’s reply brief as a motion to strike, which we deny. Rule 28(b) merely
clarifies that appellees aren’t required to include these statements in their briefs; it
doesn’t forbid them from doing so.
Entered for the Court
Nancy L. Moritz Circuit Judge