Opinion
23-3169
10-16-2023
In re: ROBERT LEE VERGE, Movant.
(D.C. No. 5:23-CV-03200-JWL) (D. Kan.)
Before TYMKOVICH, KELLY, and MATHESON, Circuit Judges.
ORDER
In 1998, a Kansas jury convicted Robert Lee Verge of murder and other crimes. A few years later, the state trial court resentenced him following his direct appeal. And a few years after that, he unsuccessfully challenged his convictions and sentence in a habeas application under 28 U.S.C. § 2254. He now moves for authorization to file another § 2254 application. See 28 U.S.C. § 2244(b)(3)(A). His new application would claim that his trial attorney provided ineffective assistance by failing to argue that the Kansas trial court lacked jurisdiction to convict and sentence him because he is from a different state (Missouri).
Mr. Verge represents himself, so we construe his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
We may authorize a second or successive § 2254 claim only if Mr. Verge shows that one of these two circumstances exists:
1. His "claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
2. The "factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "the facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."§ 2244(b)(2), (b)(3)(C).
Mr. Verge has not shown that his claim relies on a new rule of constitutional law. He suggests that his claim relies on Magwood v. Patterson, 561 U.S. 320 (2010). But it does not. Magwood addresses when a § 2254 application should be considered a second or successive one; it does not address a state's jurisdiction to prosecute residents of other states. See 561 U.S. at 330-33.
To the extent Mr. Verge argues that his new application would not be a second or successive one under Magwood, he is incorrect. Magwood says that a § 2254 application may not be considered second or successive if it is the first to challenge a particular judgment, even if it comes after other applications challenging earlier judgments in the same case. See 561 U.S. at 331-33. Although the trial court resentenced Mr. Verge after his direct appeal, he has already filed a § 2254 application since the resentencing. In other words, he has already filed a § 2254 application challenging the current judgment against him.
Nor has Mr. Verge shown that the factual predicate of his claim could not have been discovered earlier. He says that his "newly discovered evidence is lack of jurisdiction." Mot. for Authorization at 15. But his allegation that the trial court lacked jurisdiction is not evidence at all; it is a legal conclusion. As far as we can tell, the factual predicate of Mr. Verge's new claim is that he is from Missouri. Surely that information could have been discovered long before he filed his first § 2254 application.
We deny Mr. Verge's motion for authorization to file a new § 2254 application. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E).