ORDER Applicant's Motion for Appointment of Counsel [Doc. 47 ] is DENIED without prejudice.… — USA v. Lattany (Dkt. 74)

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U.S. District Court for the District of Colorado · No. 1:23-cr-00074-NYW · Doc. 74 · 2024-07-15 · Docket on CourtListener

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An order dated July 15, 2024 by United States District Judge Nina Y. Wang in United States v. Dejane Reaniece Lattany, No. 1:23-cr-00074-NYW, in the U.S. District Court for the District of Colorado, filed as Doc. 74. It rules on three motions by Ms. Lattany seeking appointed counsel for her pro se motion under 28 U.S.C. § 2255 (Doc. 47, Doc. 68 and Doc. 69). The order recounts that she was charged with wire fraud under 18 U.S.C. § 1343 and sentenced on August 15, 2023 to 48 months' imprisonment. It finds that Rule 8(c) and Rule 6(a) do not require appointment, that the § 2255 Motion is fully briefed, and that exceptional circumstances are not shown. All three motions are denied without prejudice.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO 
Judge Nina Y. Wang 
 
Criminal Case No. 23-cr-00074-NYW-1 
 
UNITED STATES OF AMERICA,  
 
Plaintiff,  
 
v.  
 
1.  
DEJANE REANIECE LATTANY, 
 
Defendant.  
 
ORDER 
 
 
 
This matter comes before the Court on Applicant Dejane Reaniece Lattany’s 
(“Applicant” or “Ms. Lattany”) Motion for Appointment of Counsel, [Doc. 47], filed 
November 13, 2023 (the “First Motion”); Motion for Appointment of Counsel in a Criminal 
Case, [Doc. 68], filed March 14, 2024 (the “Second Motion”); and Motion to Appoint 
Counsel and Address Change Information, [Doc. 69], filed April 29, 2024 (the “Third 
Motion” and together, “Motions to Appoint Counsel”).  For the following reasons, the 
Motions to Appoint Counsel are respectfully DENIED.  
BACKGROUND 
  
On March 3, 2023, Ms. Lattany was charged by Information with one count of wire 
fraud pursuant to 18 U.S.C. § 1343.  [Doc. 1].  The following week, private counsel – 
Jason Flores-Williams (“Mr. Flores-Williams”) – entered an appearance on her behalf and 
filed a Waiver of Indictment.  [Doc. 3; Doc. 5].  The next day, Ms. Lattany, through Mr. 
Flores-Williams, filed a Notice of Disposition.  [Doc. 8].  In advance of her Change of Plea 
hearig, Ms. Lattany executed a Plea Agreement with the United States and a Statement 
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in Advance of Plea of Guilty.  [Doc. 13; Doc. 14].  She appeared before the Court for a 
Change of Plea hearing on April 26, 2023, during which the Court advised her of her 
constitutional rights and the consequences of pleading guilty.  [Doc. 12].   
The Parties agreed, and the Court found, that the applicable guideline calculation 
was 24, with a criminal history category of I, resulting in an advisory sentencing guideline 
range of 51-63 months.  [Doc. 13].  In her Sentencing Memorandum, Ms. Lattany, through 
counsel, advocated for a sentence of incarceration of 45 months.  [Doc 19 at 3].  The 
United States advocated for a sentence of incarceration of 51 months.  On August 15, 
2023, this Court sentenced Ms. Lattany to 48 months’ imprisonment, to be followed by 
three years of supervised release.  [Doc. 25 at 2; Doc. 27].  On August 21, 2023, Mr. 
Flores-Williams moved to withdraw as counsel which the Court granted.  [Doc. 26; Doc. 
29].   
After granting two extensions, see [Doc. 41; Doc. 44], the Court ordered Ms. 
Lattany to self-surrender to federal custody on November 30, 2023.  See [Doc. 45]; see 
also [Doc. 53 (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 (“§ 2255 Motion”).  See [Doc. 46].1  In her § 2255 
Motion, Ms. Lattany contends that Mr. Flores-Williams made “promises and advisement 
of the law turned out to be untrue and resulted in me having a higher criminal history 
score and now being safety valve ineligible.”  [Doc. 46 at 2].  She further contends that 
her former attorney coerced her into accepting a plea deal against her wishes and best 
interest and failed to adequately represent her at critical junctures of the case.  [Id. At 4-
 
1 On February 5, 2024, Ms. Lattany filed an “Amended 28 U.S.C. § 2255 [Motion]” 
[Doc. 62], which this Court construes as a supplement to the § 2255 Motion.   
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5].  After the Court denied Ms. Lattany’s request for continued release pending resolution 
of the § 2255 Motion, see [Doc. 55; Doc. 56], Ms. Lattany surrendered to federal custody 
on November 30, 2023.  Ms. Lattany remains in the custody of the federal Bureau of 
Prisons (“BOP”).   
Presently before this court are Applicant’s First, Second, and Third Motions 
requesting the appointment of pro bono counsel to represent her in her § 2255 
proceeding.  See [Doc. 47; Doc. 68; Doc. 69].   
LEGAL STANDARD 
There is no constitutional right to counsel to litigate a § 2255 motion.  See 
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Swazo v. Wyo. Dep’t of Corr., 23 F.3d 
332, 333 (10th Cir. 1994).  But there are certain situations where the appointment of 
counsel in a § 2255 action is required by statute or rule.  Specifically, Rule 8(c) of the 
Rules Governing Section 2255 Proceedings for the United States District Courts states 
that “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to 
represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 
3006A [statute governing appointment of counsel for financially eligible individuals].”  Rule 
6(a) contains a similar requirement, providing that a court must appoint counsel for a § 
3006A-qualified moving party “[i]f necessary for effective discovery.”  Rule 6(a) also 
provides that authorization to conduct such discovery is discretionary with the court upon 
a showing of good cause. 
Absent one of these mandatory grounds, the governing statute provides that a 
court “may” appoint counsel when “the interests of justice so require” for a movant seeking 
relief under § 2255 who is “financially unable to obtain adequate representation.”  
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18 U.S.C. § 3006A(a)(2)(B).  A defendant who satisfies in forma pauperis requirements 
necessarily satisfies § 3006A’s “financially unable” requirement.  United States v. 
Maxwell, 184 F. App’x 708, 710 (10th Cir. 2006). 
Although § 2255 motions are filed in the same criminal case as the conviction from 
which the motion seeks relief,4 they are generally considered to be civil in nature. See, 
e.g., Heflin v. United States, 358 U.S. 415, 418 n.7 (1959); United States v. Johnston, 
258 F.3d 361, 364 (5th Cir. 2001); Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 
1992).  But see Wall v. Kholi, 562 U.S. 545, 560 n.7 (2011) (noting confusion over proper 
classification of § 2255 proceedings); United States v. Bergman, 746 F.3d 1128, 1131 
(10th Cir. 2014) (discussing confusion over the “enigmatic character” of § 2255 
proceedings); United States v. Cruz, 774 F.3d 1278, 1283 (10th Cir. 2014) (referring to § 
2255 proceedings as “hybrid”); United States v. Cook, 997 F.2d 1312, 1315 n.1, 1319 
(10th Cir. 1993) (referring to § 2255 proceedings as criminal). 
Regardless of the whether § 2255 motions are considered civil, criminal, or hybrid, 
the same “interest of justice” standard governs the discretionary appointment of counsel, 
and courts evaluating whether the “interests of justice” require appointment have applied 
much the same framework as governs appointment of counsel in a civil case.  See, e.g., 
United States v. Jordan, No. 04-cr-00229-LTB, 2010 WL 11570628, at *1 (D. Colo. 2010); 
United States v. Smith, No. 01-20031-JWL, 2003 WL 22300180, at *1 (D. Kan. 2003); 
United States v. Dixon, No. 07-40124-JAR, 2012 WL 1658904, at *1 (D. Kan. 2012).  This 
inquiry is often somewhat abbreviated as § 2255 motions that do not qualify for an 
evidentiary hearing or for appointment of counsel under Rule 6(a) are often considered 
straightforward by courts.  See, e.g., Dixon, 2012 WL 1658904, at *1 (denying 
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appointment of counsel on the basis that the record “conclusively demonstrated” movant 
was not entitled to relief); Smith, 2003 WL 22300180, at *1 (denying appointment of 
counsel on the basis that the facts were of “a relatively simple nature” and the applicable 
law was “straightforward”). 
The determination of whether to appoint counsel in a civil case is left to the sound 
discretion of the trial court.  Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).  In 
deciding whether to request counsel for a civil litigant, the district court should evaluate 
“the merits of a [litigant’s] claims, the nature and complexity of the factual issues, and the 
[litigant’s] ability to investigate the facts and present his claims.” Hill v. Smithkline 
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted).  Under Local 
Attorney Rule 15(f), this court also considers the following factors in reviewing a motion 
for appointment of counsel in a civil action: (1) the nature and complexity of the case; (2) 
the potential merit of the pro se party’s claims; (3) the demonstrated inability of the 
unrepresented party to retain an attorney by other means; and (4) the degree to which 
the interests of justice will be served by appointment of counsel, including the benefit the 
court may derive from the assistance of the appointed counsel.  D.C.COLO.LAttyR 15(f).  
“The burden is on the applicant to convince the court that there is sufficient merit to his 
claim to warrant the appointment of counsel.”  Hill, 393 F.3d at 1115 (citation omitted).  
“Only in those extreme cases where the lack of counsel results in fundamental unfairness 
will the district court’s decision be overturned.”  Id. 
ANALYSIS 
As an initial matter, the present circumstances do not mandate the appointment of 
counsel.  The Court has made no determination regarding whether an evidentiary hearing 
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is warranted in this action.  No discovery has been requested or authorized by the Court.  
Thus, Rule 8(c) and Rule 6(a) of the Rules Governing Section 2255 Proceedings for the 
United States District Courts do not require appointment of counsel at this juncture, and 
the Court exercises its discretion in considering the Motions.   
Furthermore, the Court is not persuaded that appointment of counsel is necessary 
in the interests of justice.  There is no indication that Applicant requires the assistance of 
counsel to identify the specific facts or set forth coherent arguments in support of her 
claims that Mr. Flores-Williams did not adequately represent her.  Ms. Lattany is a well-
educated person, though lacking in legal training, can identify facts to support her claim 
that Mr. Flores-Williams was ineffective in representing her. Rather, throughout these 
proceedings, Ms. Lattany has demonstrated an ability to present articulate, sophisticated, 
and well-reasoned arguments and respond to issues raised by the Court.   
The Court also is unpersuaded that the nature and complexity of the § 2255 Motion 
supports appointment.  The § 2255 Motion is fully briefed at this stage; Ms. Lattany filed 
and supplemented it without the assistance of counsel [Doc. 46; Doc. 62], the United 
States responded [Doc. 61], and Ms. Lattany replied [Doc. 65].  Indeed, on February 27, 
2024, Ms. Lattany submitted a detailed “Response to Prosecution’s Rebuttal / 2255 / 
Ineffective Counsel” [Doc. 65], which the Court construes as Applicant’s Reply in support 
of her § 2255 Motion.  The Reply demonstrates that Ms. Lattany can conduct legal 
research, identify relevant facts, and craft arguments.2  See generally [id. (Ms. Lattany’s 
 
2 The Court further observes that, pursuant to Rule 8(c) of the Rules Governing Section 
2255 Proceedings for the United States District Courts, counsel will be appointed should 
the Court determine that an evidentiary hearing is warranted.   
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notably sophisticated Reply)].  Thus, the § 2255 Motion is fully briefed and ripe for a 
decision on the merits, which will be issued by the Court in due course.  
Finally, the Court respectfully concludes that Ms. Lattany has not demonstrated 
exceptional circumstances warranting the appointment of counsel at this juncture of her 
post-conviction proceedings.  Ms. Lattany requests counsel immediately because, in BOP 
custody, she has been relocated several times and “continue[s] to face challenges, along 
with [her] pregnancy and health concerns, that are impeding [her] ability to comply with 
the Court’s directives, along with properly exhausting [her] administrative remedies in the 
BOP system.”  [Doc. 69 at 3].  In a letter dated June 11, 2024, Ms. Lattany also alleges 
hardships she has endured while in BOP custody.  See generally [Doc. 72].   
Insofar as Ms. Lattany asserts that her pregnancy and/or health concerns impede 
her ability to litigate this case, the Court declines to consider this argument absent 
additional information explaining how her health has impacted her ability to proceed pro 
se.  And while the Court understands and acknowledges the inherent difficulties in 
litigating a case while incarcerated, those difficulties are—unfortunately—neither unique 
nor exceptional, and there is no constitutional right to counsel in post-conviction 
proceedings under § 2255.  See Swazo, 23 F.3d at 333.  Accordingly, the Court concludes 
that Ms. Lattany has not demonstrated exceptional circumstances warranting the 
appointment of counsel at this stage of the proceedings.  See Toevs v. Reid, 685 F.3d 
903, 916 (10th Cir. 2012) (explaining appointment of counsel is appropriate in “extreme 
case[s] where the lack of counsel results in fundamental unfairness.”).   
For all of these reasons, the Motions for Appointment of Counsel are respectfully 
DENIED. 
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CONCLUSION 
Accordingly, IT IS ORDERED that:  
(1) 
Applicant’s Motion for Appointment of Counsel [Doc. 47] is DENIED without 
prejudice;  
 
(2) 
Applicant’s Motion for Appointment of Counsel in a Criminal Case [Doc. 68] 
is DENIED without prejudice;  
 
(3) 
Applicant’s Motion to Appoint Counsel and Address Change Information 
[Doc. 69] is DENIED without prejudice; and  
  
(4) 
A copy of this Order shall be sent to:3  
 
Dejane Reaniece Lattany  
Inmate No. 51090-510 
P.O. Box 27137 
Federal Medical Center  
Fort Worth, Texas 76127 
 
DATED:  July 15, 2024 
 
 
 
BY THE COURT:  
 
 
 
 
 
 
 
 
________________________  
 
 
 
 
 
 
 
Nina Y. Wang 
 
 
 
 
 
 
 
United States District Judge 
 
 
3 In light of the address information provided by Ms. Lattany in the Motion to Appoint 
Counsel and Address Change Information, [Doc. 72], the Clerk of Court is DIRECTED to 
update Ms. Lattany’s address on the docket to the address set forth above.     
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