September 10, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF… v. Philip Andra Grigsby

FILED
United States Court of Appeals
Tenth Circuit
September 10, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP ANDRA GRIGSBY,
Defendant - Appellant.
No. 21-3014
(D.C. No. 6:12-CR-10174-JTM-1)
(D. Kan.)
ORDER AND JUDGMENT*
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
In 2012, Appellant Philip Andra Grigsby pleaded guilty to eight 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. United States v. Grigsby,
749 F.3d 908, 909 (10th Cir. 2014). In addition to receiving a sentence of 260
years’ imprisonment, Grigsby was ordered to pay restitution to the victim and her
mother. United States v. Grigsby, 630 F. Appx. 838, 839 (10th Cir. 2015).
*This order and judgment is not binding precedent except under the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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On January 8, 2021, Grigsby filed a motion with the district court seeking
modification of the restitution order. Specifically, he sought an order requiring
that restitution payments owed to the victim now be made directly to the victim,
who has reached the age of majority. The district court struck Grigsby’s motion,
concluding he lacked standing. In the instant appeal, Grigsby challenges the
district court’s judgment, asserting that (1) he and the victim are being denied due
process and (2) the victim is being denied her right to restitution.
There was no reversible error in the district court’s disposition of Grigsby’s
motion. “Article III standing requires the plaintiff to have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial decision.” Baker v. USD
229 Blue Valley, 979 F.3d 866, 871 (10th Cir. 2020) (quotation omitted). Grigsby
has not met these requirements. To the contrary, the bulk of his opening brief
focuses on the rights of the victim, not his own rights. He concedes the victim is
entitled to restitution and wholly fails to explain how the granting of his motion
would provide him with relief from any injury in fact.
Grigsby attempts to remedy this failure in his reply brief by asserting his
due process rights are being violated because the restitution payments are not
being made directly to the person to whom he owes the obligation. This argument
is unavailing because Grigsby fails to identify the source of any alleged right he
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has to make restitution payments directly to the victim when she reaches the age
of majority.1 To the extent Grigsby argues his standing to protect the rights of the
victim flows from the Fourteenth Amendment’s right to familial association, his
briefing is deficient and he has failed to direct this court to any precedent holding
a parent has such rights with respect to a competent adult child.
For the first time on appeal, Grigsby also argues the district court was
biased against him. Because Grigsby did not request that the district court judge
recuse himself, we review the question of whether his due process rights were
violated because of judicial bias only for plain error. See United States v. Nickl,
427 F.3d 1286, 1297–98 (10th Cir. 2005). Grigsby supports his assertion of error
by arguing the district court incorrectly adjudicated his claims. Because adverse
rulings “do not in themselves support a bias charge,” Grigsby has failed to show
error. Id. at 1298.
Grigsby also alleges for the first time on appeal that the Assistant United
States Attorney engaged in prosecutorial misconduct during this appeal. Even
assuming a prosecutorial misconduct claim can be raised in a matter like the one
before this court, we have reviewed the entire appellate record and can find no
support for Grigsby’s allegations.
1No such right flows from the Child Pornography Restitution statute. See
18 U.S.C. § 2259.
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The judgment of the district court striking Grigsby’s motion is affirmed.
Grigsby’s motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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