UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

VISITH NY, 

 Plaintiff - Appellant, 

v. 

RANDY LIND; THE ATTORNEY 

GENERAL OF THE STATE OF 

COLORADO, 

 Defendants - Appellees. 

No. 15-1194 

(D.C. No. 1:15-CV-00697-LTB) 

(D. Colo.) 

_________________________________ 

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 

FILED 

United States Court of Appeals

Tenth Circuit 

November 10, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
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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. 
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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