ORDER ON MOTION FOR CONTINUED RELEASE ON CONDITIONSas to Dejane Reaniece Lattany (1) The… — USA v. Lattany (Dkt. 56)

Record facts

U.S. District Court for the District of Colorado · No. 1:23-cr-00074-NYW · Doc. 56 · 2023-11-29 · Docket on CourtListener

Summary

An Order on Motion for Continued Release on Conditions in United States v. Dejane Reaniece Lattany, No. 1:23-cr-00074-NYW, in the U.S. District Court for the District of Colorado, signed by Judge Nina Y. Wang on November 29, 2023 as Doc. 56. The defendant, sentenced on August 15, 2023 to 48 months' imprisonment, asked to remain released pending her pro se Motion to Vacate under 28 U.S.C. § 2255 (Doc. 46). The Court finds she has not shown a clear case on the merits of her ineffective-assistance claims, citing her statements at the change of plea hearing. It also finds that the difficulty of litigating while incarcerated is not an exceptional circumstance. The order denies the motion (Doc. 55) and orders her to self-surrender on November 30, 2023 by 12:00 p.m. in Denver, Colorado.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

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].   
Case No. 1:23-cr-00074-NYW   Document 56   filed 11/29/23   USDC Colorado   pg 1 of 6

2 
“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”).   
Case No. 1:23-cr-00074-NYW   Document 56   filed 11/29/23   USDC Colorado   pg 2 of 6

3 
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.   
Case No. 1:23-cr-00074-NYW   Document 56   filed 11/29/23   USDC Colorado   pg 3 of 6

4 
[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.   
Case No. 1:23-cr-00074-NYW   Document 56   filed 11/29/23   USDC Colorado   pg 4 of 6

5 
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 
Case No. 1:23-cr-00074-NYW   Document 56   filed 11/29/23   USDC Colorado   pg 5 of 6

6 
(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 
 
 
 
 
 
 
 
 
Case No. 1:23-cr-00074-NYW   Document 56   filed 11/29/23   USDC Colorado   pg 6 of 6

File and source

File

gov.uscourts.cod.223008.56.0.pdf

Size

187,160 bytes

SHA-256

93850b47397534f29798a0b847bcdc3b9e030d7bf1bd2fb17b375dacf0590812

Our copy

gov.uscourts.cod.223008.56.0.pdf

Original

PACER (login required)