United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK,
Applicant, Visith Ny, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Ny has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and a Memorandum in Support of Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2254 for Points and Authorities (ECF No. 4). Mr. Ny is challenging the validity of his conviction in Denver District Court case number 99CR4640.
On April 7, 2015, Magistrate Judge Gordon P. Gallagher ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this action. On April 27, 2015, Respondents filed their Pre-Answer Response (ECF No. 10) arguing that the application is untimely and that some of Mr. Ny’s claims are unexhausted and procedurally defaulted. On May 15, 2015, Mr. Ny filed his Reply to Pre-Answer Response (ECF No. 11).
The Court must construe the application and other papers filed by Mr. Ny liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as untimely.
A jury found Mr. Ny guilty of two counts of first degree extreme indifference murder and the trial court sentenced him to concurrent terms of life in prison without the possibility of parole. The Colorado Court of Appeals described the factual background as follows:
Defendant was involved in an ongoing dispute with two brothers. The brothers accused defendant of burglarizing their home and both of them threatened defendant’s life. Defendant believed that the brothers had stolen his car in retaliation, and he was aware that they were members of a gang.
At a night club, one of the brothers confronted defendant and asked him to go outside. According to defendant, once outside, the brother admitted to stealing defendant’s car, and defendant punched him in the face. A fight ensued but was quickly broken up by off-duty police officers working at the club. Defendant was told to leave.
Defendant’s friends had joined him outside, and as the three of them were going to the car they noticed a large group of people following them. Defendant hid inside his friend’s car. The group, which included the other brother, surrounded the car and yelled threats and insults at defendant. When the brother opened the car door, defendant pointed a gun at him. The group did not disperse, but instead continued to threaten and insult defendant.
A fight then ensued between the group and defendant’s friends. Defendant fired five shots, fatally wounding two members of the crowd. Both the victims were associates of the brothers and were gang members.
People v. Ny, No. 09CA2167, slip op. at 2-3 (Colo.App. June 6, 2013) (ECF No. 10-9 at 3-4). The Colorado Court of Appeals affirmed the judgment of conviction on direct appeal. See People v. Ny, No. 00CA0863 (Colo.App. June 20, 2002) (ECF No. 4 at 30-40). On March 17, 2003, the Colorado Supreme Court denied Mr. Ny’s petition for writ of certiorari on direct appeal. (See ECF No. 4 at 55.)
On July 28, 2008, Mr. Ny filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 10-1 at 12.) Mr. Ny claimed in the Rule 35(c) motion “that he received ineffective assistance of counsel and that counsel had a conflict of interest.” (ECF No. 10-9 at 2.)
Following a five-day evidentiary hearing, the trial court held that defendant had received constitutionally effective representation and that he had not demonstrated an actual conflict of interest on the part of trial counsel.
This division affirmed the order denying defendant’s Crim. P. 35(c) motion based on alleged ineffective assistance of counsel. People v. Ny, (Colo.App. No. 09CA2167, Dec. 15, 2011) (not published pursuant to C.A.R. 35(f)).
On January 7, 2012, the supreme court granted defendant’s petition for writ of certiorari, vacated this division’s judgment, and remanded the case to this court for reconsideration in ...