USA v. Lattany

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Criminal Action No. 23-cr-00074-NYW-1
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. 	DEJANE REANIECE LATTANY,
Defendant.
ORDER ON MOTION FOR CONTINUED RELEASE ON CONDITIONS
This matter is before the Court on the Motion for Continued Release on Conditions (the
“Motion” or “Motion for Release”) filed on November 28, 2023 by Defendant Dejane Reaniece
Lattany (“Defendant” or “Ms. Lattany”). [Doc. 55]. On August 15, 2023, this Court sentenced
Defendant to 48 months’ imprisonment, to be followed by three years of supervised release. [Doc.
25 at 2; Doc. 27]. The Court ordered Ms. Lattany to self-surrender to federal custody on September
28, 2023. 	[Doc. 32]. 	Ms. Lattany successfully moved to extend the self-surrender date on two
occasions, see [Doc. 41; Doc. 44], and the Court ordered Ms. Lattany to self-surrender on
November 30, 2023 by 12:00 p.m. See [Doc. 45]; see also [Doc. 53 (this Court permitting Ms.
Lattany to self-surrender in Denver, Colorado)].
On November 13, 2023, Ms. Lattany filed a pro se Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (the “Motion to Vacate”). 	See [Doc. 46]. 	And on
November 28, 2023, Ms. Lattany filed the instant Motion, requesting that she be released on
conditions pending the resolution of her Motion to Vacate. See [Doc. 55].
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“While no Constitutional or statutory right exists, Federal courts have the inherent power
to release a state prisoner on bond, pending [a] decision on a petition for habeas relief.” United
States v. Cook, No. 15-cr-03224-WJ-LF-1, 2022 WL 1604715, at *1 (D.N.M. May 20, 2022)
(citing Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981)). 	However, this authority is to be
exercised “very sparingly.” Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); see also
Datson v. Clark, 900 F.2d 77, 789 (6th Cir. 1990) (explaining that “as a practical matter, the
motions for bail will be denied in most of the habeas proceedings” because “[t]here will be few
occasions where a prisoner will meet this standard”). 	“An inmate seeking federal habeas relief
must, in order to obtain release pending a determination on the merits of [her] petition, make a
showing of exceptional circumstances or demonstrate a clear case on the merits of [her] habeas
petition.” United States v. Palermo, 191 F. App’x 812, 813 (10th Cir. 2006) (citing Pfaff, 648 F.2d
at 693).1
Ms. Lattany contends that she can demonstrate both a clear case on the merits and
exceptional circumstances warranting release. First, she asserts that she “would contend that she
has demonstrated a clear case on the merits,” directing the Court to her Motion to Vacate. [Doc.
55 at 2–3]. 	In the Motion to Vacate, Ms. Lattany argues that she was deprived of effective
assistance of counsel because, among other reasons, her former attorney made “promises and
1 But see Vreeland v. Zupan, 644 F. App’x 812, 813 (10th Cir. 2016) (finding that the petitioner
was required to “show not only a clear case on the merits of the habeas petition, but also
exceptional circumstances” (emphasis added)). 	In Vreeland, the petitioner had filed his habeas
petition nearly eight years into his sentence. See id. The Tenth Circuit specifically noted the “late
stage” of the proceedings in concluding that the petitioner was required to make both showings.
See id. 	The Court finds Vreeland distinguishable and will follow the Palermo court’s directive
that a petitioner is required to show exceptional circumstances or a clear case on the merits. See
Coriz v. Rodriguez, 347 F. Supp. 3d 707, 715 (D.N.M. 2018) (distinguishing Vreeland and
concluding that because “the case [was] in its early stages, as Petitioner filed his habeas petition
within weeks of his conviction and sentencing,” the court would “therefore treat the Pfaff v. Wells
requirements as alternatives”).
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advisement of the law turned out to be untrue”; misinformed her “about legal concepts and
potential outcomes, leading to uninformed and detrimental decisions”; “[c]oerc[ed] [her] to accept
a plea deal against [her] wishes and best interest”; and failed to adequately communicate with her
or prepare her for the various stages of her case. [Doc. 46 at 3–4].2
To succeed on an ineffective-assistance-of-counsel argument, a petitioner must show that
counsel’s 	performance 	was 	deficient, 	i.e., 	that 	it 	“fell 	below 	an 	objective 	standard 	of
reasonableness” and was “outside the wide range of professionally competent assistance.”
Strickland v. Washington, 466 U.S. 668, 690 (1984). The petitioner must also show that counsel’s
deficient performance prejudiced her by showing, in the plea context, a “reasonable probability”
that, but for counsel’s deficient performance, she would not have pleaded guilty and would have
insisted on going to trial. Lee v. United States, 582 U.S. 357, 363 (2017).
Without prejudging the merits of the Motion to Vacate, the Court cannot conclude that Ms.
Lattany has made a sufficient showing of a clearly meritorious post-conviction case. The Seventh
Circuit has explained that
A defendant . . . who waived [her] right of appeal . . . is unlikely to have been
convicted 	unjustly; 	hence 	the 	case 	for 	bail 	pending 	resolution 	of 	[her]
postconviction proceeding is even weaker than the case for bail pending appeal.
And the interest in the finality of criminal proceedings is poorly served by deferring
execution of sentence till long after the defendant has been convicted.
Cherek, 767 F.2d at 337. The Court first notes that, other than directing the Court to her Motion
to Vacate, Ms. Lattany does not explain how she has demonstrated a clear case on the merits. See
2 Ms. Lattany’s Motion to Vacate also suggests that the Government failed to comply with its
obligations under Brady v. Maryland. 	See [Doc. 46 at 4–5]. 	However, Ms. Lattany does not
reference these assertions in her Motion for Release or argue that these assertions constitute a clear
case on the merits. See generally [Doc. 55]. Accordingly, Ms. Lattany has not demonstrated that
these assertions form the basis of a clear case on the merits and the Court does not address these
allegations at this juncture.
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[Doc. 55 at 2–3]. Furthermore, in her Motion to Vacate, Ms. Lattany does not expressly argue that
absent counsel’s deficient performance she would have not pleaded guilty and would have instead
gone to trial, as required to demonstrate the prejudice prong of the Strickland test. See generally
[Doc. 46].
In addition, at the change of plea hearing, the Court confirmed that Ms. Lattany understood
the plea agreement, agreed that the facts in the plea agreement were true, and had signed the plea
agreement. Ms. Lattany also confirmed that she believed she was guilty of the crime charged and
that she understood the consequences of entering a guilty plea, including the maximum possible
sentence. The Court asked Ms. Lattany whether she had discussed the charges against her and the
plea agreement with her attorney and whether her attorney had answered all of her questions to
her satisfaction; Ms. Lattany answered affirmatively. The Court also asked Ms. Lattany whether
she was satisfied with her attorney’s representation and whether she believed she had been fully
advised about her case; she answered affirmatively. These “[s]olemn declarations in open court
carry a strong presumption of verity,” Blackledge v. Allison, 431 U.S. 63, 74 (1977), and “the
Tenth Circuit has refused to credit conclusory claims of ineffective assistance of counsel where
the defendant expresses satisfaction with counsel during the plea colloquy,” United States v. Been,
No. 4:21-cr-00493-GKF-3, 2023 WL 6847573, at *3 (N.D. Okla. Oct. 17, 2023) (collecting cases);
see also United States v. Snisky, 725 F. App’x 666, 670 (10th Cir. 2018).
For these reasons, the Court cannot conclude at this time that Ms. Lattany has demonstrated
a “clear case on the merits” warranting release pending the resolution of her Motion to Vacate.
However, the Court emphasizes that it will fully consider all of Ms. Lattany’s arguments raised in
the Motion to Vacate, as well as the Government’s anticipated response and any reply filed by Ms.
Lattany, when it rules on the Motion to Vacate.
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In the alternative, Ms. Lattany argues that she has demonstrated exceptional circumstances
warranting continued release pending the resolution of her Motion to Vacate. [Doc. 55 at 3]. She
contends that incarceration would “present[] a substantial impediment to accessing necessary
resources to substantiate the assertions made” in her Motion to Vacate, “thereby potentially
thwarting the administration of justice.” [Id.]. She also notes that is not represented with respect
to her Motion to Vacate. [Id.].
The Court respectfully concludes that Ms. Lattany has not demonstrated exceptional
circumstances warranting continued release pending the resolution of her Motion to Vacate. “The
Court must strictly enforce the ‘exceptional circumstances’ limitations to avoid opening the
floodgates for requests for release regardless of the intrinsic merits of a habeas motion.” Cook,
2022 WL 1604715, at *2 (citing United States v. Dansker, 561 F.2d 485, 487 (2d Cir. 1977)).
While the Court understands and acknowledges the inherent difficulties in litigating a case while
incarcerated, those difficulties are unfortunately not unique or exceptional, and to demonstrate
extraordinary circumstances justifying release, the petitioner must “demonstrate that [her] case is
distinguishable from other habeas cases.” 	United States v. Bankhead, No. 2:18-cr-20784-PDB-
APP, 2020 WL 673861, at *3 (E.D. Mich. Jan. 7, 2020), report and recommendation adopted, WL
628480 (E.D. Mich. Feb. 10, 2020) (quotation omitted). 	In its independent research, the Court
could locate no case in which a court found exceptional circumstances based on the mere fact that
the petitioner was incarcerated. 	In fact, “a petitioner’s continued confinement during habeas
review is normally not considered an extraordinary circumstance entitling [her] to bail.” United
States v. Callahan, No. 2:13-cr-00453-GRB-AKT-1, 2019 WL 3457987, at *3 (E.D.N.Y. July 31,
2019), aff’d sub nom. United States v. Manson, 788 F. App’x 30 (2d Cir. 2019); cf. Lewis v. Casey,
518 U.S. 343, 355 (1996) (“Impairment of . . . litigating capacity is simply one of the incidental
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(and perfectly constitutional) consequences of conviction and incarceration.”). 	Furthermore,
although Ms. Lattany proceeds in the post-conviction proceedings pro se, there is no constitutional
right to counsel in proceedings under § 2255. United States v. Ellick, 3 F. App’x 870, 871 (10th
Cir. 2001). Accordingly, the Court concludes that Ms. Lattany has not demonstrated exceptional
circumstances warranting release pending the resolution of the Motion to Vacate.
For all of these reasons, the Motion for Release is respectfully DENIED.
CONCLUSION
For the reasons set forth herein, it is ORDERED that:
(1) 	The Motion for Continued Release on Conditions [Doc. 55] is DENIED; and
(2) 	Defendant Dejane Reaniece Lattany is ORDERED to SELF-SURRENDER on
November 30, 2023 by 12:00 p.m. to the United States Marshals Service in
Denver, Colorado. Failure to do so may place Defendant in absconsion status.
DATED: November 29, 2023 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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