                                                           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

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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




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