United States v. Lorenzana-Cordon ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal No. 03cr331-13 (CKK)
ELIU ELIXANDER LORENZANA-
CORDON,
Defendant.
MEMORANDUM OPINION
(November 17, 2022)
Presently before the Court is Defendant Eliu Elixander Lorenzana-Cordon’s [1207] pro se
Motion for and or Request for Bail in Relation to Pending Motion Under Title 28 U.S.C. §2255,
pursuant to Title 18 U.S.C. §3143. Defendant requests that he be released on bail during the
pendency of his ongoing proceedings under 28 U.S.C. §2255. After a jury trial, Defendant was
convicted of Conspiracy to Import Five Kilograms or More of Cocaine into the United States and
to Manufacture and Distribute Five Kilograms or More of Cocaine, Intending and Knowing that
the Cocaine will be Unlawfully Imported into the United States, and Aiding and Abetting. See
Verdict Form, ECF No. 800. Defendant was sentenced, on February 22, 2018, to a life term less
six months with credit for time served in Guatemala and the United States. See Judgment, ECF
No. 998. Defendant’s judgment of conviction was affirmed by the United States Court of Appeals
for the District of Columbia (“D.C. Circuit”) on January 31, 2020. See Judgment, ECF No. 1147-
1.
Defendant has moved for bail during the pendency of this Court’s consideration of his
motion brought pursuant to 22 U.S.C. §2255, wherein Defendant alleges that he received
ineffective assistance of appellate counsel and further, that his constitutional rights were violated
through prosecutorial misconduct and false imprisonment. In support of his request for bail,
Defendant relies upon 18 U.S.C. §3143 and Cherek v. United States, 767 F.2d 335 (7th Cir. 1985).
The Court notes preliminarily that Section 3143, which provides for release of defendants pending
sentence or appeal, is not applicable to defendant engaged in federal habeas corpus proceedings,
whether made under Section 2254 or 2255. See e.g., Chernek, 767 F.2d at 337; United States v.
Dansker, 561 F.2d 485, 486-87 (3d Cir. 1977); Ballou v. Massachusetts, 382 F.2d 292, 293 (1st
Cir. 1967). Accordingly, Defendant in the instant case is not entitled to relief on the basis upon
which he has sought it. However, the Court does have inherent authority to grant release to a
habeas petitioner during the pendency of a proceeding, although this power to grant bail in habeas
cases should be used sparingly. See Cherek, 767 F.2d at 337 (“A defendant whose conviction has
been affirmed on appeal . . . is unlikely to have been convicted unjustly; hence the case for bail
pending resolution of his postconviction proceeding is even weaker than the case for bail pending
appeal.”) In United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986), the D.C. Circuit noted
that “[i]n a § 2255 proceeding, the court’s jurisdiction to order release . . . includes an inherent
power to grant bail or release, pending determination of the merits[.]” But a “release request in
such proceedings” requires a “heightened standard requiring a showing of exceptional
circumstances.” Kelly, id. (citing Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969)).
In order to prevail on a motion for release on bail in a habeas case, the habeas petitioner
must make a “greater showing of special reasons for admission to bail pending review” when the
applicant is “incarcerated because he has been tried, convicted, and sentenced by a court of law.”
Aronson v. May, 85 S. Ct. 3, 5 (1964). In this case, after a five-week jury trial, on March 22, 2016,
Defendant was found guilty of one count of conspiracy to manufacture and distribute five
2
kilograms or more of cocaine with the intent to unlawfully import it into the United States.
Thereafter, prior to sentencing, Defendant filed two rounds of post-conviction motions for
acquittal and a new trial, as well as a motion to dismiss. On June 2, 2017, this Court issued an
order and opinion denying all of Defendant’s motions. See ECF Nos. 928, 929. On December 1,
2017, Defendant filed another motion for a new trial, which was subsequently denied by this Court.
See Order, ECF No. 991. Defendant was sentenced on February 22, 2018 to life imprisonment,
and he timely filed a Notice of Appeal. The D.C. Circuit affirmed Defendant’s conviction in
United States v. Lorenzana-Cordon, 949 F.3d 1 (D.C. Cir. 2020), rehearing en banc denied (2020),
and Defendant’s petition for a writ of certiorari was denied in United States v. Lorenzana-Cordon,
141 S. Ct. 2688 (2021). Subsequently, Defendant filed his motion pursuant to 28 U.S.C. § 2255.
Without opinion as to the merits of Defendant’s arguments therein, the Court finds that
Defendant’s chance of success is not readily apparent. Furthermore, Defendant – who is serving
a life sentence for a charge involving an international drug trafficking conspiracy – is not a good
candidate for release on bail.
Accordingly, this Court shall DENY Defendant Eliu Elixander Lorenzana-Cordon’s [1207]
pro se Motion for and or Request for Bail in Relation to Pending Motion Under Title 28 U.S.C.
§2255. A separate Order accompanies this Opinion. This Court notes that an order denying bail
pending the resolution of Defendant’s Section 2255 motion has been treated as appealable as a
collateral order. See, e.g. Grune v. Coughlin, 913 F.2d 41, 42 (2d Cir. 1990); United States v.
Smith, 835 F.2d 1048, 1049-50 (3d Cir. 1987); Cherek, 767 F.2d at 337.
_____________/s/________________
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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