UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ROBERT LEE VERGE, 

 Petitioner - Appellant, 

v. 

TOMMY WILLIAMS, 

 Respondent - Appellee. 

No. 23-3166 

(D.C. No. 5:23-CV-03200-JWL) 

(D. Kan.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before PHILLIPS, EID, and CARSON, Circuit Judges. 

_________________________________ 

Robert Lee Verge is confined in a Kansas prison for crimes committed in 1997. 

In 2006 he challenged his convictions in an unsuccessful 28 U.S.C. § 2254 habeas 

application. Earlier this year, he filed another § 2254 application. The district court 

concluded that the new application was an unauthorized second or successive one, and so 

it dismissed the application for lack of jurisdiction. Mr. Verge wishes to appeal the 

dismissal. But he can appeal only if we grant him a certificate of appealability. See 

28 U.S.C. § 2253(c)(1)(A). We deny his request for one. 

*

 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 30, 2024

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 23-3166 Document: 010110992032 Date Filed: 01/30/2024 Page: 1
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We may grant a certificate of appealability only if “jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling.” Slack v. 

McDaniel, 529 U.S. 473, 478 (2000). A district court lacks jurisdiction over the merits of 

a second or successive § 2254 application unless the appropriate court of appeals has 

authorized the applicant to file it. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). 

Mr. Verge does not claim to have received authorization to file the underlying § 2254 

application, so the question becomes whether it was indeed second or successive. 

Mr. Verge argues (under a liberal reading of his papers)1

 that the application was 

not second or successive because it is the first to challenge a new judgment. He relies on 

Magwood v. Patterson, a decision holding 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 another application challenging an earlier judgment in the same case, see 

561 U.S. 320, 331–33 (2010). And he identifies a 2022 postconviction decision by the 

Kansas Supreme Court as the judgment challenged in the underlying application. 

This argument misunderstands what § 2254 and Magwood mean when they refer 

to a judgment. They mean the judgment causing the habeas applicant’s confinement, not 

merely any decision in the applicant’s case. See § 2254(a), (b)(1); Magwood, 561 U.S. 

at 332. The judgment causing Mr. Verge’s confinement is the Kansas district court’s 

judgment from 2002. He has already challenged the 2002 judgment in a § 2254 

application. Later state-court decisions leaving the 2002 judgment undisturbed—such as 

1

 Mr. Verge represents himself, so we construe his filings liberally. See Hall v. 

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

Appellate Case: 23-3166 Document: 010110992032 Date Filed: 01/30/2024 Page: 2
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the 2022 Kansas Supreme Court decision—do not amount to new judgments under 

Magwood that would allow Mr. Verge to file another § 2254 application without prior 

authorization from this court. 

Mr. Verge’s underlying § 2254 application was both unauthorized and second or 

successive. For that reason, the district court lacked jurisdiction to adjudicate the 

application. And so reasonable jurists could not debate the decision to dismiss it. We 

therefore deny Mr. Verge’s application for a certificate of appealability. We grant his 

motion to proceed without prepaying costs or fees. We dismiss this matter. 

Entered for the Court 

CHRISTOPHER M. WOLPERT, Clerk 

Appellate Case: 23-3166 Document: 010110992032 Date Filed: 01/30/2024 Page: 3