Ny v. Lind , 622 F. App'x 760 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 10, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
VISITH NY,
Plaintiff - Appellant,
v. No. 15-1194
(D.C. No. 1:15-CV-00697-LTB)
RANDY LIND; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Defendants - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Mr. Visith Ny was convicted of two counts of first degree extreme
indifference murder under Colorado state law. The conviction became final
in 2003, and Mr. Ny had one year to file a federal habeas petition. 28
U.S.C. § 2244(d)(1) (2012). He filed a federal habeas petition, but not until
2015. Because Mr. Ny did not file the habeas petition within one year, the
district court dismissed the action as untimely.
Mr. Ny has applied for a certificate of appealability in order to
appeal the dismissal of his habeas petition. See 28 U.S.C. § 2253(c)(1)(A)
(2012). We can issue the certificate only if reasonable jurists would find
the district court’s procedural determination reasonably debatable. See
Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (holding that when
the district court denies a habeas corpus petition based on timeliness, the
court of appeals can issue a certificate of appealability only if the district
court’s decision on timeliness is at least reasonably debatable). Because
Mr. Ny has not presented a reasonably debatable argument on timeliness,
we dismiss the appeal.
I. The One-Year Deadline
The limitations period ordinarily begins when the conviction became
final. 28 U.S.C. § 2244(d)(1)(A) (2012). Because the conviction became
final in June 2003, he ordinarily would have had to file a federal habeas
petition by June 2004. Because he did not file a federal habeas petition
until 2015, the action would generally be considered time-barred.
We liberally construe the habeas petition and Mr. Ny’s appellate
filings. Davis v. McCollum, 798 F.3d 1317, 1319 n.2 (10th Cir. 2015). Mr.
Ny contends he was unable to timely file the federal habeas petition
because his post-conviction counsel was ineffective. Through counsel, Mr.
Ny filed a state post-conviction motion in July 2008, long after the federal
habeas deadline had passed. The motion was denied and the appeals were
ultimately unsuccessful.
Mr. Ny asserts that post-conviction counsel not only failed to inform
him of the federal habeas one-year filing deadline, but also told him not to
worry about the timing. But Mr. Ny did not raise this issue in the district
2
court, so “we consider the argument forfeited.” Hancock v. Trammell, 798
F.3d 1002, 1011 (10th Cir. 2015) (internal quotation marks omitted).
Even if Mr. Ny had raised the issue in district court, he could not
prevail. Mr. Ny “cannot successfully assert that his counsel was
constitutionally ineffective at the post-conviction stage because there is no
constitutional right to an attorney in state post-conviction proceedings.”
Smallwood v. Gibson, 191 F.3d 1257, 1266 n.4 (10th Cir. 1999) (brackets
and internal quotation marks omitted).
We conclude that any reasonable jurist would regard the habeas
action as untimely. As a result, we decline to issue a certificate of
appealability on that ground. Therefore, we need not address Mr. Ny’s
remaining arguments.
II. In Forma Pauperis Status
Mr. Ny seeks leave to proceed in forma pauperis. The district court
denied leave to proceed in forma pauperis in the appeal. We agree with the
district court that this appeal was not taken in good faith, for Mr. Ny
lacked a good faith basis to challenge the decision on timeliness. Thus, we
deny Mr. Ny’s request for leave to proceed in forma pauperis. Based on
this determination, we remind Mr. Ny that he remains liable for his
appellate fees.
3
III. Conclusion
We deny Mr. Ny’s motion to proceed in forma pauperis and dismiss
the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4