Casey v. United States

Decision Date30 March 2021
Docket NumberCivil No. 18-1049 (ADC),Related to Crim. No. 05-277-1 (ADC)
Citation530 F.Supp.3d 176
Parties Leshaun CASEY, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — District of Puerto Rico

Lashaun Casey, Waymart, PA, Pro Se.

Mariana E. Bauza, Thomas F. Klumper, United States Attorneys Office, San Juan, PR, for Respondent.


AIDA M. DELGADO-COLÓN, United States District Judge

Lashaun Casey ("Casey") moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 1 . The government responded. ECF No. 6. Petitioner replied. ECF No. 10. For the reasons set forth below, petitioner's § 2255 motion is DENIED .


In 2005, the Puerto Rico Police Department ("PRPD") assigned Agent Jesús Lizardi-Espada ("Lizardi") to investigate Casey in an undercover role. On August 1, 2005, Lizardi arranged to take a ferry to Culebra with Casey to purchase four pounds of marijuana from drug supplier Alexander Hernández ("Alexander"). A PRPD team travelled to Culebra by plane to await Lizardi and Casey's arrival. Lizardi and Casey, however, did not arrive on the ferry as planned and a search for the pair ensued. Later that day, agent José Agosto-Rivera ("Agosto") found Casey at his workplace, a Holiday Inn hotel, and recognized Lizardi's grey Ford pickup truck in the hotel parking lot. After agents witnessed Casey leave the hotel in Lizardi's truck, Casey was arrested and taken to PRPD general headquarters where he was read his rights, signed a Miranda waiver, and began being questioned at about 12:50 a.m. on August 2nd by PRPD agent Diana Marrero ("Marrero"). Over the next few hours, Casey indicated his willingness to help officers in their search for Lizardi, leading officers to the homes of individuals in the drug trafficking world. These leads, however, produced no results.

At about 6:00 a.m. on August 2nd, Casey was brought to another PRPD station in Canóvanas, where the FBI assumed jurisdiction. At this point, Casey indicated to agent Marrero that he no longer wished to speak with law enforcement and asked to see his grandfather. Casey's grandfather, with whom Casey lived, arrived at the station and gave consent for the agents to search Casey's bedroom at their home. Shortly after 12:00 p.m. on August 2nd, FBI agents transported Casey to its premises in Ceiba. Upon arrival, FBI agent Luis Moulier ("Moulier") read Casey his Miranda rights again and he exercised his right to remain silent.

No further questioning ensued until around 2:00 p.m. when agent Marrero approached Casey without repeating his Miranda rights and confronted him with the evidence that was found in his bedroom.2 Casey responded with the statements: "maybe he is alive, maybe he is dead" and that he was "sunk with the evidence." Agent Marrero then pressed for Casey to reveal more details but he refused and, at some point in the exchange, Casey asserted his right to an attorney. Around 4:00 p.m., agents allowed Casey's wife into the interview room to speak with him while a PRPD agent remained in close proximity. The agent overheard Casey make statements including "killing a cop is a federal case," and "they seized a lot of evidence at the house but they don't have the body, anyway, he was an undercover cop and he knew he was on his way to do a drug deal with me and could come out dead or alive." Casey made his initial appearance before a U.S. Magistrate Judge on August 3, 2005. A few days later, following further investigation, Lizardi's deceased body was found in a wooded area behind an abandoned structure in Luquillo with two gunshot wounds in his head.

In February 2007, a grand jury indicted Casey on three counts: (1) carjacking with the intent to cause death or serious bodily injury under 18 U.S.C. § 2119(3) ; (2) possession, use, discharge carrying of firearms during a crime of violence resulting in another's death under 18 U.S.C. § 924(j) ; and (3) being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). In July 2007, the government filed its notice to seek the death penalty and pretrial proceedings took place over the next six years. In 2011, Casey moved to suppress all statements elicited from him while in police custody as well as the contents of the overheard conversation he had with his wife allegedly in violation of his Miranda rights. Casey's counsel, however, did not address the so-called Mosley concern that arose during his time in custody as Casey initially invoked his right to remain silent while in custody at Canóvanas and that right was not "scrupulously honored" while he was in custody at Ceiba. See Michigan v. Mosley , 423 U.S. at 104, 96 S.Ct. 321.

In 2013, this Court denied his motion apart from certain statements he made after invoking his Miranda protections in the 2:00 p.m. encounter at Ceiba.3 See United States v. Casey , No. 3:05-cr-00277-ADC-1, ECF No. 793 (D.P.R. Jan. 23, 2013) (Delgado, J., Opinion and Order). Later, on the eve of trial, the government designated two DNA reports authored by Carna Meyer and a third authored by Brendan Shea. The government then called Meyer to testify to introduce all three reports. Casey's trial counsel made no objection to the reports nor did he object to Meyer's endorsement of Shea's report despite her lack of involvement in the report's preparation.

Following a nine-day trial, a jury convicted Casey of all counts but rejected the death penalty. Crim. No. 05-277-1, ECF No. 965 . On June 13, 2013, Casey was sentenced to life in prison. Crim. No. 05-277-1, ECF No. 1093 . Casey then filed a timely direct appeal in the First Circuit challenging a wide array of the district court's decisions made before and during his trial. Crim. No. 05-277-1, ECF No. 1096 . On June 3, 2016, the court of appeals affirmed his conviction. United States v. Casey , 825 F.3d 1 (1st Cir. 2016). On January 23, 2017, the Supreme Court denied certiorari. See id. , cert. denied , ––– U.S. ––––, 137 S. Ct. 839, 197 L.Ed.2d 77 (2017). The parties do not dispute that Casey's § 2255 petition was timely filed.


" Section 2255 is not a surrogate for a direct appeal." David v. United States , 134 F.3d 470, 474 (1st Cir. 1998). "Rather, the statute provides for post-conviction relief in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." Id. The "catch-all" fourth category includes only errors that reveal "fundamental defects" which, if uncorrected, will "result in a complete miscarriage of justice." Id. (quoting Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ). Accordingly, the burden is on the petitioner to make out a case for § 2255 relief because his claim "must reveal exceptional circumstances that make the need for redress evident." Id. To this end, we may deny Casey's petition without an evidentiary hearing if the "motion and the files and records of the case do not conclusively show that [he] is entitled to relief." United States v. Giardino , 797 F.2d 30, 32 (1st Cir. 1986) (internal citation and quotations omitted).

The Sixth Amendment's guarantee of the right to counsel "is the right to effective assistance of counsel." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate both: (1) "that his counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." Rossetti v. United States , 773 F.3d 322, 327 (1st Cir. 2014) (quoting Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. 2052 ). Under the first prong, "we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, finding deficiency only ‘where, given the facts known to counsel at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it.’ " Rossetti , 773 F.3d at 327 (quoting Knight v. Spencer , 447 F.3d 6, 15 (1st Cir. 2006) ). Under the prejudice prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).


Casey brings a host of ineffective assistance of counsel claims.4 His petition challenges his counsel's conduct before and during trial on three main grounds: (1) that his counsel failed to object to the testimony of a surrogate witness who testified to introduce three DNA reports; (2) that his counsel failed to argue, under Michigan v. Mosley , 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), that certain statements he made while in police custody should be suppressed; and (3) that his counsel failed to argue that all statements he made while in police custody should have been suppressed as they were obtained in violation of the prompt presentment rule. ECF No. 1 .

A. Surrogate Witness Testimony

Casey claims that he received ineffective assistance because counsel failed to object to the introduction of forensic evidence reports through Carna Meyer, a purported "surrogate witness." It is well-established that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, is "testimonial" for Confrontation Clause purposes. See Meléndez-Díaz v. Massachusetts , 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). "Absent stipulation ... the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report's statements." Bullcoming v. New Mexico , 564 U.S. 647, 651, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming , the Court found that the scientist who certifies a forensic report...

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