USA v. Santiago

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Hector Santiago,
Defendant-Petitioner,
-vs-
United States of America,
Plaintiff-Respondent.
Case No. 1:23-cr-00399
1:25-cv-01306
JUDGE PAMELA A. BARKER
MEMORANDUM OPINION & ORDER
This matter is before the Court upon Defendant-Petitioner Hector Santiago’s (“Santiago” or
“Defendant-Petitioner”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255, filed on June 24, 2025 (the “Motion”). (Doc. No. 47.) On July 24, 2025, the United States of
America (the “Government” or “Plaintiff-Respondent”) filed the Government’s Response in
Opposition to Defendant’s Motion (the “Opposition”). (Doc. No. 48.) Santiago did not file a Reply
in support of his Motion.
Also pending is Santiago’s Motion to Amend 28 U.S.C. § 2255 Motion Pursuant to Rule
15(c)(1)(B), filed on August 28, 2025 (the “Motion to Amend”). (Doc. No. 50.) On September 26,
2025, the Government filed its Response in Opposition to Santiago’s Motion to Amend (the
“Opposition to the Motion to Amend”). (Doc. No. 51.) Santiago did not file a Reply in support of
his Motion to Amend.
For the following reasons, Santiago’s Motion (Doc. No. 47) and Motion to Amend (Doc.
No. 50) are DENIED.
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I. 	Background
On September 7, 2022, Santiago was reported allegedly threatening to fire a black pistol at a
victim in a domestic dispute. 	(Plea Agreement, Doc. No. 23 at PageID# 69.)1 	Because of that
incident, Cuyahoga County Crime Stoppers identified him, and the Ohio Adult Parole Authority
learned that he had a warrant for being a violator at large. (Id.) Federal agents from the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“ATF Agents”) conducted a surveillance at the
intersection of W. 97th Street and Almira Ave., in Cleveland, Ohio, as that is where the September 7
incident had allegedly occurred. (Id.) The ATF Agents were looking for a black BMW registered to
Santiago, which they found illegally parked due to its expired registration tags. (Id.) The ATF Agents
informed the Cleveland Police Department that the black BMW was illegally parked due to its expired
registration tags, at which point CPD arrived to tow the car for the traffic violation. (Id.) Santiago’s
cousin arrived at the scene and received the tow inventory sheet, which he gave to Santiago’s mother,
who had also arrived at the scene. (Id. at PageID# 70.) 	Santiago’s mother began travelling to the
local Bureau of Motor Vehicles (BMV) and Santiago followed on a motorcycle. (Id.) ATF Agents
also followed Santiago’s mother, where they observed her meeting with Santiago outside of the BMV
and handing him the tow sheet. (Id.) Then, they entered the BMV together. (Id.)
The ATF Agents had prepared to arrest Santiago when he left the BMV. (Id.) When he exited
the BMV, the ATF Agents asked him to stop, but Santiago fled. (Id.) During the ensuing chase, the
ATF Agents “saw him repeatedly grab toward his chest and [Santiago] ignored commands to stop.”
(Id.) 	“In a chest pocket of Santiago’s pack,” the ATF Agents found a stolen “Ruger LCPII semi-
automatic pistol, serial no. 380350186, loaded with 5 rounds of .380 ammunition” and in his car they
1 These facts are set forth in the Plea Agreement, signed by Santiago on December 18, 2023.
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found a “Glock 17, 9mm semi-automatic pistol, serial no. AEPK11, loaded with thirty (30) rounds of
9mm ammunition in an extended magazine.” (Id.) Santiago was booked for a parole violation. (Id.)
On July 25, 2023, a Federal Grand Jury indicted Santiago for the crime of Felon in Possession
of Firearm and Ammunition, 18 U.S.C. §§ 922(g)(1) and 924(a)(8). 	(Indictment, Doc. No. 1 at
PageID# 1.) On July 27, 2023, Santiago pled not guilty to the indictment. (Non-Doc. Entry of July
27, 2023.) That same day, the Court appointed Attorney Nancy T. Jamieson as counsel for Santiago.
(Id.) She was terminated as his counsel of record as of August 8, 2023, when Attorney Michael H.
Peterson appeared for Santiago for his Detention Hearing on August 9, 2023. (Non-Doc. Entry of
Aug. 9, 2023.) On December 13, 2023, Attorney Peterson filed a Notice of Intent to Plea on behalf
of Santiago, and the Court set a Change of Plea Hearing for December 19, 2023, which the Court
continued to December 20, 2023 (the “Change of Plea Hearing”). (Doc. No. 22.) At the Change of
Plea Hearing, Santiago pled guilty to Count 1 of the Indictment for violating § 922(g)(1). (Non-Doc.
Entry of Dec. 20, 2023.) On December 18, 2023, Santiago, Attorney Peterson, and Attorney Adam
Joines had executed the Plea Agreement. (Doc. No. 23.) The Plea Agreement includes the following
provision:
Defendant acknowledges having been advised by counsel of Defendant’s rights, in
limited circumstances, to appeal the conviction or sentence in this case, including the
appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence
collaterally through a post-conviction proceeding, including a proceeding under 28
U.S.C. § 2255. 	Defendant expressly and voluntarily waives those rights, except as
specifically reserved below. Defendant reserves the right to appeal: (a) any punishment
in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the
maximum of the sentencing imprisonment range determined under the advisory
Sentencing Guidelines in accordance with the sentencing stipulations and computations
in this agreement, using the Criminal History Category found applicable by the Court.
Nothing in this paragraph shall act as a bar to Defendant perfecting any legal remedies
Defendant may otherwise have on appeal or collateral attack with respect to claims of
ineffective assistance of counsel or prosecutorial misconduct.
(Id. at PageID# 68.)
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On May 15, 2024, Attorney Peterson filed a Motion to Withdraw as counsel for Santiago.
(Doc. No. 32.) 	On May 30, 2024, the Court held a hearing on Attorney Peterson’s Motion to
Withdraw, which the Court granted. (Non-Doc. Entry of May 30, 2024.) That same day, the Court
appointed a Federal Public Defender to represent Santiago, and on May 31, 2024, Attorney David E.
Johnson appeared for Santiago. (Doc. No. 33.)
On September 12, 2024, the Court sentenced Santiago to a term of 71 months of
imprisonment. (Non-Doc. Entry of Sept. 12, 2024.) The Presentence Investigation Report completed
for purposes of the sentencing hearing demonstrated that prior to his conviction in the instant matter,
Santiago had been convicted of the following offenses. In 2007, Santiago was convicted of felonious
assault in the Cuyahoga County Court of Common Pleas. (Presentence Investigation Report, Doc.
No. 41 at PageID# 214.) In 2009, Santiago was convicted of assault in the Marion County Court of
Common Pleas. (Id. at PageID# 215.) 	In 2013, Santiago was convicted of burglary, robbery, and
kidnapping in the Cuyahoga County Court of Common Pleas. (Doc. No. 41 at PageID# 216.)
On June 24, 2025, Santiago filed his Motion on the basis that his conviction under § 922(g)(1)
violated his Second Amendment rights.2 (Doc. No. 47.) On July 24, 2025, the Government filed its
Opposition. (Doc. No. 48.) On August 28, 2025, Santiago filed his Motion to Amend, writing that
his “new claim is ‘Ineffective Assistance of Counsel.’” (Doc. No. 50.) On September 26, 2025, the
Government filed its Opposition to Santiago’s Motion to Amend. (Doc. No. 51.)
II. 	Standard of Review
A. 	Motion to Vacate under 28 U.S.C. § 2255
A federal prisoner may attack the validity of his sentence by filing a motion to vacate, set
aside, or correct the sentence under 28 U.S.C. § 2255 in the district court where he was sentenced.
2 Within the body of his Motion, Santiago claims that he filed his Motion “on or about May 19, 2025” but that is the date
he signed his Motion, not the day he filed it. (Doc. No. 47-1 at PageID# 286.)
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Section 2255 sets forth four (4) grounds upon which a federal prisoner may state a claim for relief:
“[1] the sentence was imposed in violation of the Constitution or laws of the United States, or [2] the
court was without jurisdiction to impose such sentence, or [3] the sentence was in excess of the
maximum authorized by law, or [4] [the sentence] is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a).
To warrant relief under § 2255, a petitioner who pleaded guilty “must demonstrate the
existence of an error of constitutional magnitude which had a substantial and injurious effect or
influence on the guilty plea.” 	Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). 	A court may only grant relief if the petitioner
demonstrates “a fundamental defect which inherently results in a complete miscarriage of justice.”
Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). If a factual dispute arises, the “court
must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Turner v. United
States, 183 F.3d 474, 477 (6th Cir. 1999). 	No hearing is required, however, “if the petitioner’s
allegations ‘cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.’” Arredondo v. United States, 178 F.3d 778,
782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)); see also
Napier v. United States, 1993 WL 406795 at *2 (6th Cir. Oct. 8, 1993) (“To be entitled to a hearing,
the prisoner must set forth detailed factual allegations which, if true, would entitle him to relief under
§ 2255.”); cf. Valentine v. United States, 488 F.3d 325, 334 (6th Cir. 2007) (finding that the burden
is met only where the petitioner “offers more than a mere assertion of innocence.”).
B. 	Fed. R. Civ. P. 15 Amendment
The Parties agree that Santiago’s Motion to Amend should be evaluated under Fed. R. Civ. P.
15. (Doc. No. 51 at PageID#s 320-21) (quoting United States v. Clark, 637 Fed. Appx. 206, 208 (6th
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Cir. 2016) (“A motion to amend a § 2255 motion is governed by Federal Rule of Civil Procedure
15(a)[.]”)). Under Federal Rule of Civil Procedure 15(a), a court “should freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Morse v. McWhorter, 290 F.3d 795, 799-
800 (6th Cir. 2002). “Though the decision to grant leave to amend is committed to the trial court’s
discretion, that discretion is limited by Fed. R. Civ. P. 15(a)’s liberal policy of permitting amendments
to ensure the determination of claims on their merits.” Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th
Cir. 1987). However, a motion for leave to amend a pleading “may be denied when the motion is the
product of undue delay, bad faith, or dilatory motive, amendment would cause undue prejudice to the
opposing party, the plaintiff repeatedly failed to cure deficiencies in the complaint with previous
amendments, or amendment of the complaint would be futile.” Springs v. U.S. Dep’t of Treasury,
567 Fed. Appx. 438, 443 (6th Cir. 2014) (citing Riverview Health Inst. LLC v. Med. Mut. of Ohio,
601 F.3d 505, 520 (6th Cir. 2010)).
III. 	Analysis
In Santiago’s Motion, he does not base his habeas claim on ineffective assistance of counsel
and instead only argues that his conviction under § 922(g)(1) was unconstitutional under N.Y. State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In his Motion to Amend, however, he asserts that
his “new claim ‘is ineffective assistance of counsel’” based on Attorney Peterson’s allegedly
ineffective representation. (Doc. No. 50 at PageID# 315.) 	The way the Court reads his Motion to
Amend, he claims Attorney Peterson rendered ineffective assistance by (1) failing to apprise Santiago
of the effect of the waiver provision in the Plea Agreement, and (2) failing to file a motion advancing
the Bruen arguments Santiago set forth in his original Motion. (Id. at PageID#s 315-16.)
This analysis proceeds as follows. First, in Section III.A., the Court addresses Santiago’s two
(2) ineffective assistance of counsel claims and concludes that because they both have no merit, his
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Motion to Amend is futile and must be denied. 	Specifically, in Section III.A.1., the Court first
explains that his first ineffective assistance of counsel claim (based upon his assertion that Attorney
Peterson never adequately apprised Santiago of the effect of his waiver) fails because the record flatly
contradicts Santiago’s contention that he did not understand the implications of his waiver. Second,
in Section III.A.2., the Court addresses the merits of his second claim (that Attorney Peterson failed
to assert the unconstitutionality of § 922(g)(1) under Bruen). 	There, the Court concludes that
Attorney Peterson could not have provided ineffective assistance by declining to advance Santiago’s
Bruen argument because (1) Santiago’s Bruen argument itself lacks merit in that he is “dangerous,”
and (2) even if Attorney Peterson had rendered ineffective assistance by failing to make the Bruen
argument, Santiago has not shown how Attorney Peterson’s failure was prejudicial.
In Section III.B., the Court then briefly addresses the merits of Santiago’s underlying Motion.
The Court concludes that his Motion must be denied because (1) Santiago waived his right to
collaterally attack that conviction in the Plea Agreement, and (2) as set forth in the preceding section,
Santiago’s Bruen argument lacks merit because he is “dangerous.”
A. 	Santiago’s Motion to Amend based on ineffective assistance of counsel is denied
as futile.
“In the habeas corpus context, ‘amendments are futile where they seek to add claims that are
time-barred, procedurally defaulted, or lack merit.’” Cunningham v. Warden, Madison Corr. Inst.,
2025 WL 562876 at *9 (S.D. Ohio Feb. 20, 2025) (quoting Rouse v. Delbaso, 2021 WL 11511516 at
*1 n.1 (E.D. Pa. Mar. 15, 2021)) (collecting cases). 	For the reasons below, the Court finds that
Santiago’s two (2) proposed ineffective assistance of counsel claims lack merit.
A petitioner may challenge a sentence “imposed in violation of the Constitution or laws of the
United States.” 	28 U.S.C. § 2255(a). 	The Sixth Amendment establishes that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
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U.S. Const., amend. VI. “[T]he right to counsel is the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970)).
A petitioner’s claim for constitutionally ineffective assistance of counsel has two elements:
(1) the petitioner’s counsel performed deficiently, and (2) that deficiency prejudiced the defendant.
See Wiggins v. Smith, 539 U.S. 510, 521 (2003). 	A petitioner “must prove his allegation that his
lawyers were constitutionally ineffective by a preponderance of the evidence.” 	Pough v. United
States, 442 F.3d 959, 964 (6th Cir. 2006). First, “[t]o establish deficient performance, a petitioner
must demonstrate that counsel’s representation ‘fell below an objective standard of reasonableness.’”
Id. (quoting Strickland, 466 U.S. at 688). “Counsel’s performance is objectively unreasonable only
where ‘the identified acts or omissions were outside the wide range of professionally competent
assistance, as determined by ‘prevailing professional norms.’” United States v. Munoz, 605 F.3d 359,
376 (6th Cir. 2010) (quoting Strickland, 466 U.S. at 689)).
Second, “the defendant then must show prejudice: ‘that there is a reasonable probability that,
but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the 	proceeding 	would 	have 	been
different.’” Carson v. United States, 88 F.4th 633, 638 (6th Cir. 2023) (quoting Strickland, 466 U.S.
at 694)). “The likelihood of a different result must be substantial, not just conceivable.” Harrington
v. Richter, 562 U.S. 86, 112, (2011). “To satisfy the prejudice prong in the context of a guilty plea,”
the defendant is “required to ‘show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Shakir v. United States,
2021 WL 7210370 at *3 (6th Cir. Sept. 20, 2021) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985));
Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003) (same); United States v. Steele, 2025 WL
2799418 at *5 (N.D. Ohio Oct. 1, 2025).
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Additionally, “[g]iven the prejudice requirement, ‘counsel cannot be ineffective for a failure
to raise an issue that lacks merit.’” Sutton v. Bell, 645 F.3d 752, 755 (6th Cir. 2011) (quoting Greer
v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). “[C]ounsel’s failure to raise futile objections and
arguments does not amount to constitutionally deficient performance.” Lyons v. Caruso, 1999 WL
1252916 at *3 (6th Cir. Dec. 14, 1999). “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be followed.” 	Baze v. Parker, 371 F.3d
310, 321 (6th Cir. 2004) (cleaned up).
1. 	Attorney Peterson did not fail to adequately apprise Santiago of the effect
of the waiver provision in the Plea Agreement.
As noted above, in Santiago’s Motion, he initially only challenges the constitutionality of his
conviction pursuant to Bruen, but does not raise ineffective assistance of counsel as the basis for his
Motion. (Doc. No. 47.) In its Opposition, the Government responds that Santiago waived his right
to file his Motion by signing the Plea Agreement and that he acknowledged that he understood the
waiver. (Doc. No. 48 at PageID#s 294-95.) Then, in his Motion to Amend, Santiago moves pursuant
to Fed. R. Civ. P. 15(c)(1)(B) to amend his original Motion, arguing that his “new claim ‘is ineffective
assistance of counsel.’” (Doc. No. 50 at PageID# 315.) Therein, he asserts that
Mr. Peterson was ineffective when he failed to explain to him exactly what rights he
was waiving, how waiving those rights could effect [sic] him in future and helping him
or giving him the proper legal advise [sic] to understand what he was agreeing to
relinquish in exchange for promises made by the united states in the plea agreement.
(Id.) In the Government’s Opposition to Santiago’s Motion to Amend, the Government argues that
Santiago “cannot show that his attorney made a mistake in failing to advise him of any rights because
he received a second attorney at his own request.” 	(Doc. No. 51 at PageID# 324). 	Although he
pleaded gulty, the Government notes that Santiago
could have, and presumably did, explore options with his new attorney related to his
Bruen claim. He could have discussed whether he could seek to withdraw his plea, file
his Bruen claim, or seek to appeal. Santiago was afforded additional counsel prior to
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sentencing. 	He cannot now claim his intital attorney’s actions were a mistake he later
discovered after conviction.
(Id.)
The Court agrees with the Government and holds that Attorney Peterson did not provide
ineffective assistance of counsel because the relevant circumstances surrounding Santiago’s guilty
plea show that he entered into the Plea Agreement knowingly and voluntarily.
It is well-established that criminal defendants may waive their right to appeal or collaterally
attack their sentence as part of a plea agreement. See United States v. Hollins-Johnson, 6 F.4th 682,
683 (6th Cir. 2021) (quoting United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004)) (“Criminal
defendants may waive their right to appeal as part of a plea agreement so long as the waiver is made
knowingly and voluntarily[.]”); Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999) (“[W]e
find that Watson’s relinquished his right to collaterally attack his sentence through a § 2255 motion
by executing a valid waiver of this right in his plea agreement.”).
Therefore, “[t]he waiver may be challenged on the grounds that the defendant’s guilty plea or
waiver was not knowing or voluntary or that the waiver was the product of ineffective assistance of
counsel.” 	Shakir v. United States, 2021 WL 7210370 at *2 (6th Cir. Sept. 20, 2021) (citing In re
Acosta, 480 F.3d 421, 422 (6th Cir. 2007). To determine whether the guily plea or waiver was made
“knowingly and voluntarily[,]” the Court “‘consider[s] all of the relevant circumstances surrounding’
the plea or waiver.” Fitzpatrick v. Robinson, 723 F.3d 624, 639 (6th Cir. 2013) (quoting Brady v.
United States, 397 U.S. 742, 748 (1970)).
In Fitzpatrick, the court held that the “Petitioner’s jury waiver and guilty plea were entered
knowingly, voluntarily, and intelligently” because “[b]efore accepting Petitioner’s jury waiver, the
trial court reviewed the written waiver form with Petitioner, asked whether Petitioner had any
questions about the form, ensured that Petitioner signed the form voluntarily, and confirmed that
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Petitioner’s trial counsel had discussed the form and its consequences with Petitioner.” Id. at 639-
40. This Court did the same during Santiago’s Change of Plea Hearing on December 20, 2023:
The Court: Now, Mr. Santiago, you’ve reviewed the entire plea agreement, correct?
The Defendant: Yes, Ma’am.
The Court: 	And again, it consists of 12 pages. 	You signed this after reviewing the
change with your counsel on Monday, and then you signed it on the last page, correct?
The Defendant: Yes.
***
The Court: . . . Now, one other question or a couple more, Mr. Santiago. Do you need
any more time to consult with your lawyer, Mr. Peterson, before I take your plea?
The Defendant: No.
The Court: 	All right. 	And again, has anyone attempted in any way to force you to
plead guilty or otherwise threatened you?
The Defendant: No.
The Court: And aside what’s set forth in the written 12-page plea agreement that you
signed on Monday, 12/18, after the change was made to paragraph 21a, has anyone
made any promises or assurances of any kind to get you to plead guilty?
The Defendant: No.
The Court: 	And, sir, are you pleading guilty of your own free will because you are
guilty?
The Defendant: Yes, ma’am.
The Court: 	All right. 	Thank you. 	Then how do you now plead to the charge of
possession of firearm and/or ammunition by convicted felon, in violation of Title 18
United States Code Section 922(g)(1), guilty or not guilty?
The Defendant: Guilty.
(Transcript of Change of Plea Hearing, Dec. 20, 2023, Tr. at 7:5-7:15, 8:8-9:6.)
Santiago’s own representations at the Change of Plea Hearing refute his present contention
that Attorney Peterson rendered ineffective assistance of counsel by failing to explain the rights
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Santiago waived by executing the plea agreement; Santiago attested to the Court that he reviewed the
entire plea agreement with Attorney Peterson and that he did not need more time to consult Attorney
Peterson. And Santiago also expressly noted in his Plea Agreement that he was “satisfied with [the]
assistance of counsel” and had “sufficient time and opportunity to discuss all aspects of the case in
detail with [Attorney Peterson].” (Doc. No. 23 at PageID# 72.) Aside from his bare assertion in his
Motion to Amend that he did not, in fact, understand the effect of his waiver, he presents no other
evidence to bolster that assertion. (Doc. No. 50 at PageID# 315.)3
Accordingly, the Court concludes that Attorney Peterson did not render ineffective assistance
by allegedly failing to apprise Santiago of the effect of his waiver.
2. 	Attorney Peterson did not render ineffective assistance of counsel by
declining to make a Bruen Motion that had no chance of succeeding.
In his Motion, Santiago argues that his conviction under § 922(g)(1) is constitutionally
defective because it violated his Second Amendment rights. He claims that “the sentence that was
imposed for the indictment, which charged him with a violation of § 922(g)(1) should be vacated
under Bruen” because “his conduct comes within the plain text of the Second Amendment and is
presumptively protected by the Constitution.” (Doc. No. 47-1 at PageID# 264, 267.) According to
Santiago, “[t]he Government has yet to meet its burden to show that the nation’s historical tradition
of firearm regulation has a ‘distinctly similar’ or even a ‘relevantly similar’ analog to § 922(g)(1).”
(Id. at PageID# 256.)4 In support, Santiago cites to a various 17th century statutes, contemporary law
3 Although the Court finds that the waiver provision is enforceable, the Court notes that Santiago did not waive his
underlying right to assert claims for ineffective assistance of counsel. The waiver provision of the Plea Agreement
expressly provides that “Nothing in this paragraph shall act as a bar to Defendant perfecting any legal remedies Defendant
may otherwise have on appeal or collateral attack with respect to claims of ineffective assistance of counsel or
prosecutorial misconduct.” (Doc. No. 23 at PageID# 68.) This does not mean, of course, that his ineffective assistance
of counsel claims succeed, but only that the Court must evaluate them on the merits.
4 Santiago submits that the “parties disagree on [] whether defendant is part of ‘the people’ as that term appears in the
Second Amendment.” (Id.) The Government does not argue that Santiago is not “one of ‘the people’” and instead assumes
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review articles, and district court opinions, and he maintains that § 922(g)(1) imposes a greater burden
on the Second Amendment right than that imposed at the founding because the historical record from
colonial American and English common law shows that no law created a permanent and absolute
restriction on the right to keep and bear arms. (Id. at PageID#s 276-81.)
In its Opposition, the Government argues that his conviction under § 922(g)(1) did not violate
his Second Amendment rights because the Sixth Circuit has held that § 922(g)(1) is facially
constitutional in United States v. Parham, 119 F.4th 488 (6th Cir. 2024) and United States v. Williams,
113 F.4th 637 (6th Cir. 2024), and points to district court opinions from the Northern District of Ohio
rejecting Second Amendment challenges to § 922(g)(1). (Id. at PageID#s 296-99). The Government
bolsters that contention by setting forth several historical sources indicating that “from the earliest
days of the Republic to modern times, legislatures have disarmed individuals who could not be trusted
with firearms.” 	(Id. at PageID#s 300-06.) 	Finally, the Government maintains that “Santiago’s
criminal history contains violent and dangerous convictions[,]” including the following:
In 2007, he was convicted of felonious assault after he shot another individual. 	His
time in the Department of Youth Services left him with a record of threats against others
and fighting. Even after release, he continued his violent streak by breaking into
someone’s house and trying to rob them with a fake gun. Santiago has weapons and
other convictions, including disorderly conduct related to this case when he swung and
hit a female victim.
(Id. at PageID#s 307-08) (citing Presentence Investigation Report, Doc. No. 41 at PageID#s 214-17.)
The Government contends that these convictions doom his claim because they make him a
“dangerous person” against whom § 922(g)(1) can be constitutionally applied. (Doc. No. 48 at
PageID#s 308-09.)
that he is and disputes only the merits of his as-applied challenge to § 922(g)(1). Therefore, the Court assumes that
Santiago is one of “the people” whose right to bear arms is protected by the Second Amendment.
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In his Motion to Amend, Santiago reasserts his Bruen defense through an ineffective
assistance of counsel claim; he argues that Attorney Peterson was ineffective because he “had to fire
Mr. Peterson before sentencing Because [sic] Santiago asked Mr. Peterson before and after his guilty
change of plea to file the motion needed to file [sic] arguing his Second Amendment right.” (Id.) In
its Opposition to Santiago’s Motion to Amend, the Government responds that Attorney Peterson
could not have deficiently represented Santiago in failing to file a motion objecting to the
constitutionality of § 922(g)(1) because such a motion would have had “no chance of succeeding.”
(Id.)
The Court agrees with the Government. 	For the reasons below, the Court concludes that
Attorney Peterson did not provide ineffective assistance in declining to argue that § 922(g)(1) is
unconstitutional as applied to Santiago because that defense lacks merit as Santiago is “dangerous.”
See Sutton, 645 F.3d at 755 	(quoting Greer, 264 F.3d at 676) (“Given the prejudice requirement,
‘counsel cannot be ineffective for a failure to raise an issue that lacks merit.’”); Lyons, 1999 WL
1252916 at *3.5 Additionally, even if Attorney Peterson did render ineffective assistance of counsel
by declining to make that argument, his inaction could not have prejudiced Santiago because Santiago
received new counsel who also never attempted to advance his Bruen argument.
a) 	Santiago’s conviction under § 922(g)(1) is constitutional under
Bruen because Santiago is “dangerous.”
Attorney Peterson’s failure to object to the application of 18 U.S.C. § 922(g)(1) to Santiago
was not ineffective assistance of counsel because under applicable Sixth Circuit precedent, Santiago
is “dangerous,” and therefore his attorney did not make an error in declining to make a non-
meritorious argument.
5 The Court additionally sets forth its basis for rejecting a series of other miscellaneous arguments Santiago makes on
Pages 15-17 of his Motion in Section III.A.2.b. below. (Doc. No. 47-1 at PageID#s 273-275.)
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The Second Amendment provides that “[a] well-regulated Militia, being necessary for the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
Const., amend. II. The Second Amendment “codifie[s] a pre-existing ‘individual right to keep and
bear arms.’” United States v. Risner, 129 F.4th 361, 366 (6th Cir. 2025) (quoting District of Columbia
v. Heller, 554 U.S. 570, 595 (2008)). However, “[l]ike most rights, the right secured by the Second
Amendment is not unlimited.” Heller, 554 U.S. at 626. Thus, for the government to constitutionally
limit an individual’s “right to keep and bear arms,” “the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S.
at 17. 	That consistency exists if the new law is “consistent with the principles that underpin our
regulatory tradition.” United States v. Rahimi, 602 U.S. 680, 692 (2024) (quoting Bruen, 597 U.S. at
29) (emphasis added). A reviewing court “must consider ‘why and how’ the modern law burdens the
Second Amendment right and compare it to the ‘why and how’ of historical firearms regulations.”
United States v. Morton, 123 F.4th 492, 496 (6th Cir. 2024) (quoting Rahimi, 602 U.S. at 692).
However, the modern law “need not be a “dead ringer” or a “historical twin” to its “historical
precursors.” Rahimi, 602 U.S. at 692.
The statute at issue in Santiago’s case, 18 U.S.C. § 922(g)(1), disarms convicted felons. While
Santiago urges the Court to find that § 922(g)(1) is not constitutional because it does not align with
the nation’s history and tradition of firearm regulation, Sixth Circuit precedent squarely forecloses
that inquiry. The Sixth Circuit has confirmed the facial constitutionality of 18 U.S.C. § 922(g)(1).
See United States v. Williams, 113 F.4th 637, 657 (6th Cir. 2024) (“[M]ost applications of § 922(g)(1)
are constitutional, [so] the provision is not susceptible to a facial challenge.”). 	And while “§
922(g)(1) is constitutional on its face[,]” it is also constitutional when “applied to dangerous people.”
Id. at 662-63 (emphasis added); United States v. Berry, 2025 WL 1082376 at *1 (6th Cir. Apr. 10,
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2025) (citing Williams, 113 F.4th at 663) (Ҥ 922(g)(1) is constitutional when applied to dangerous
persons.”).
In making the as-applied dangerousness determination under Williams, “courts—much like
the officials of old—must focus on each individual’s specific characteristics. 	That necessarily
requires considering the individual’s entire criminal record—not just the predicate offense for
purposes of § 922(g)(1).” 113 F.4th at 658-59.
Williams classifies a defendant’s crimes into three groups by order of severity for analyzing
as-applied challenges to § 922(g)(1). 	See id. at 657. 	“The first such group is crimes against the
person[,]” which include “dangerous and violent crimes like murder rape, assault, and robbery.” Id.
(citing Offense Against the Person, Black’s Law Dictionary (12th ed. 2024)). A defendant who has
committed a crime in this group faces an “extremely heavy” burden to overcome a “presumption of
dangerousness.” Id.; see also Berry, 2025 WL 1082376 at *1. “[T]here is little debate that violent
crimes are at least strong evidence that an individual is dangerous, if not totally dispositive on the
question.” Williams, 113 F.4th at 658. The second category of crimes includes those that are “not
strictly crimes against the person” but that still “pose a significant threat of danger,” such as “drug
trafficking” and “burglary.” Id. at 669. They “put someone’s safety at risk, and thus, justify a finding
of danger.” Id. In the third category are crimes that “cause no physical harm to another person or to
the community,” such as “mail fraud.” Id.
Here, before Santiago’s conviction in this Court under § 922(g)(1), he had been convicted
several times for violent crimes, including burglary, robbery, and kidnapping. 	(Doc. No. 51 at
PageID# 379-82.) He admitted to these convictions in the Plea Agreement. (Doc. No. 23 at PageID#
71.) The Presentence Investigation Report also details these convictions. (Doc. No. 41 at PageID#s
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209-18.) And, as noted above, in 2007 Santiago was convicted of felonious assault and in 2009 he
was convicted of assault. (Id. at PageID#s 214-15.)
His convictions for felonious assault, assault, robbery, burglary, and kidnapping are
dispositive of this analysis. At common law, “‘assault’ was defined as the ‘attempt or offer to beat
another, without touching him[.]’” 	United States v. McCulligan, 256 F.3d 97, 102 (3d Cir. 2001)
(citation omitted); United States v. Delis, 558 F.3d 177, 180 (2d Cir. 2009) (same). The Court in
Williams expressly noted that assault, robbery, and burglary are “crimes against the person” and
therefore make Santiago presumptively dangerous. 	Williams, 113 F.4th at 659 (citing Taylor v.
United States, 495 U.S. 575, 588 (1990) (“Courts have recognized that burglary is dangerous because
it ‘creates the possibility of a violent confrontation between the offender and occupant.’”); id. at 658
(“This historical category was filled with dangerous and violent crimes like murder, rape, assault, and
robbery.”). And like those crimes, there is no dispute that kidnapping can “put someone’s safety at
risk, and thus, justify a finding of danger.” Id. at 659.
Therefore, Santiago is presumptively dangerous and faces an “extremely heavy” burden to
show that he is not dangerous. 	Id. at 637. 	Yet Santiago has presented no evidence to rebut the
presumption that he is dangerous. Having failed to overcome the “extremely heavy” presumption of
dangerousness established in Williams, the Court concludes that Santiago is dangerous and therefore
concludes that applying § 922(g)(1) to him does not violate his right to keep and bear arms under the
Second Amendment.
Accordingly, 	the 	Court 	rejects 	Santiago’s 	argument 	that 	Attorney 	Peterson 	was
constitutionally ineffective by declining to raise that argument because that argument could not
succeed.6
6 The Court also notes that Williams, which was decided on August 23, 2024, was governing law when Santiago was
convicted on September 12, 2024.
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b) 	The Court rejects Santiago’s other miscellaneous arguments.
Also in his Motion, Santiago asserts several other meritless arguments. Santiago claims he
“kept” the weapon within the meaning of “keep and bear arms” because he was a shooting victim in
April 2020 and felt it necessary to protect himself 	(Id. at PageID# 273); the Government never
prepared a charging document reflecting that Santiago was in possession of a firearm while on parole;
Santiago had never been convicted of harming anyone with the firearm or using it to intimidate
anyone; Santiago was not required to reveal the purpose of his owning the firearm; and Santiago asks
the Court to only consider conduct alleged in the indictment to determine whether it is covered by the
Second Amendment, and not to consider that the firearm was stolen or that he “had a violent offense
in his past criminal history” because “none of the facts mentioned were ever written or mentioned in
the Second Amendment’s plain text.” (Doc No. 47-1 at PageID#s 273-75).
The Court rejects each of these arguments as largely irrelevant or misstatements of the law.
The Government has never disputed that Santiago “kept” the “stolen Ruger LCPII semi-automatic
pistol” or the “Glock 17, 9mm semi-automatic pistol, serial no. AEPK611” because, indeed, that is
the very basis for Santiago’s underlying conviction. 	(Doc. No. 23 at PageID#s 70-71.) 	It is also
irrelevant whether the Government prepared a charging document reflecting that Santiago possessed
such a firearm while on parole because, as noted in his Plea Agreement, he conceded that it was “true”
that he was “arrested while in possession of firearms” which formed the basis for his conviction. (Id.
at PageID# 69.) 	It is also irrelevant whether he had previously harmed anybody with a firearm,
because, as noted above, the only relevant inquiry is whether he is “dangerous” which is not limited
to previously harming someone with a firearm. See, e.g., Williams, 113 F.4th at 657 (noting that the
fact that the defendant “robbed two people at gunpoint, stealing case, a watch, and clothing” was
alone sufficient to support a constitutional conviction under § 922(g)(1)). 	Santiago also was not
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convicted for failing to reveal his motivation behind keeping a firearm, but for knowingly possessing
one, see 18 U.S.C. § 922(g)(1) (requiring that the Defendant “knowingly possessed a firearm and/or
ammunition.”), so his subjective motivations are likewise irrelevant. Lastly, the Court also rejects
that it should not consider his past criminal history in evaluating whether he is “dangerous” because
in Williams, the Sixth Circuit explicitly instructed courts to consider the defendant’s criminal record
in making its dangerousness determination: “Consider Williams’s criminal record. He has two felony
counts of aggravated robbery. Robbery is a common-law crime against the person.” Williams, 113
F.4th at 662. Thus, none of Santiago’s additional contentions support his conclusion that his Bruen
defense would have had any merit, so it cannot be the basis for an ineffective assistance of counsel
claim against Attorney Peterson.
c) 	Even 	if 	Attorney 	Peterson 	rendered 	ineffective assistance of
counsel by declining to make a Bruen motion, Santiago cannot
show that such a failure was prejudicial.
Assuming that Attorney Peterson had rendered ineffective assistance by declining to make
the above Bruen arguments, that deficiency still could not have prejudiced Santiago because Santiago
had the opportunity to remedy the alleged deficiency and chose not to do so. 	After the Court
appointed Attorney Johnson to replace Attorney Peterson, Santiago could have sought to withdraw
his guilty plea so that he could assert his argument that § 922(g) is unconstitutional as applied to him.
See Fed. R. Crim. P. 11(d)(2) (“A defendant may withdraw a plea of guilty . . . (2) after the court
accepts the plea, but before it imposes sentence if: . . . the defendant can show a fair and just reason
for requesting the withdrawal.”); United States v. Davis, 2015 WL 5042649 at *17 (E.D. Ky. Aug.
25, 2015) (“If a court has accepted a defendant's plea but not yet imposed sentence, then Rule 11(d)(2)
allows a defendant to withdraw his guilty plea for ‘a fair and just reason.’”).
It is puzzling how Santiago can maintain that his old counsel’s ineffective representation
caused his constitutionally defective conviction when Santiago actually had the opportunity to ‘fix’
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Attorney Peterson’s alleged ‘mistake’ yet Santiago voluntarily chose not to avail himself of that
opportunity after receiving a new lawyer. 	Santiago apparently realized Attorney Peterson was
‘ineffective,’ fired him, and then did nothing to undo Attorney Peterson’s ‘mistakes.’ 	That too is
dispositive because 	Santiago’s intervening, voluntary decision 	to ‘stay the course’ that Attorney
Peterson had set in motion despite ample opportunity to attempt to withdraw his plea breaks the
necessary causal connection between Attorney Peterson’s supposed error and the result of Santiago’s
proceeding, i.e., his conviction. 	See Carson v. United States, 88 F.4th 633, 638 (6th Cir. 2023)
(quoting Strickland, 466 U.S. at 694)) (“[T]he defendant [] must show prejudice: ‘that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’”). 	In other words, the “likelihood of a different result” cannot be substantial
because Santiago had the opportunity to have new counsel attempt to have his guilty plea withdrawn
so as to allow the filing of a Bruen motion but he chose not to do so. See Harrington, 562 U.S. at
112 (“The likelihood of a different result must be substantial, not just conceivable.”).
Accordingly, Santiago’s Motion to Amend (Doc. No. 50) based on ineffective assistance of
counsel is denied as futile because neither of his ineffective assistance of counsel claims has merit.
B. 	Santiago’s Motion is denied because he waived his right to collaterally attack his
conviction under § 2255 and because his Bruen arguments lack merit.
Having rejected his two proffered ineffective assistance of counsel claims set forth in his
Motion to Amend, the Court now turns to Santiago’s remaining, underlying Motion. (Doc. No. 47.)
The Motion only argues that his conviction was unconstitutional because § 922(g)(1) cannot be
constitutionally applied to him. (Id.) But this Motion too must be denied for two (2) reasons.
First, as explained in Section III.A.1. above, Santiago’s Plea Agreement included an
enforceable waiver that foreclosed his right to collaterally attack his conviction through § 2255 on
grounds other than ineffective assistance of counsel. (Plea Agreement, Doc. No. 23 at PageID# 68.)
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Second, as explained in Section III.A.2. above, Santiago’s Bruen arguments lack merit because under
the Sixth Circuit precedent in Williams, he is “dangerous.” In that section, the Court already analyzed
the merits of the arguments set forth in his Motion and determined that they had no chance of
succeeding, so the Court need not duplicate its analysis here.
Accordingly, Santiago’s Motion (Doc. No. 47) based on the unconstitutionality of his
conviction as violating the Second Amendment is denied.
IV. 	Conclusion
Accordingly, Defendant-Petitioner Santiago’s Motion (Doc. No. 47) and Motion to Amend
(Doc. No. 50) are DENIED. Further, the Court certifies that an appeal from this decision could not
be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
Date: January 7, 2026 	U. S. DISTRICT JUDGE
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