United States of America v. Geer et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.
NICHOLAS D. GEER,
Defendant-Petitioner.
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Case No. 1:26-cv-138
Case No. 1:22-cr-109
Judge J. Philip Calabrese
Magistrate Judge Reuben J. Sheperd
OPINION AND ORDER
Petitioner Nicholas Geer, representing himself, moves under 28 U.S.C. § 2255
to vacate his sentence for seven counts of possession with intent to distribute
controlled substances, one count of being a felon in possession of a firearm and
ammunition, and one count of possession of a firearm in furtherance of a drug
trafficking crime. 	Mr. Geer also moves for a new trial under Rule 33(b)(2). For the
reasons that follow, the Court DENIES Mr. Geer’s Section 2255 motion and his
motion for a new trial.
STATEMENT OF FACTS
In Case No. 1:22-cr-109 (and, unless otherwise indicated, all citations to the
record relate to this case), Mr. Geer was charged in a twelve-count indictment with
ten counts of possession with intent to distribute controlled substances in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C), one count of being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one
count of possession of a firearm in furtherance of a drug trafficking crime in violation
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of 18 U.S.C. § 924(c)(1)(A)(i). (ECF No. 14.) Specifically, the indictment charged that,
on or about February 8, 2022, Mr. Geer knowingly and intentionally possessed and
intended to distribute fentanyl, acetylfentanyl, fluorofentanyl, heroin, and cocaine.
(Id.) Additionally, the indictment charged that Mr. Geer knowingly and intentionally
possessed a firearm and ammunition while being a convicted felon and possessed the
firearm in furtherance of a drug trafficking crime. (Id.)
On June 1, 2023, after a two-day jury trial, the jury found Mr. Geer guilty on
all counts. 	(ECF No. 90, PageID #1094–96.) 	On October 11, 2023, the Court
sentenced Mr. Geer to a 180-month term of imprisonment, the mandatory minimum.
(ECF No. 79, PageID #523.)
STATEMENT OF THE CASE
Mr. Geer had until January 22, 2026 to file a motion under 28 U.S.C. § 2255.
Mr. Geer’s pro se motion to vacate was filed by the Clerk’s Office on January 20, 2026.
(ECF No. 114.) 	Mr. Geer’s memorandum supporting the motion to vacate was filed
by the Clerk on January 27, 2026. (ECF No. 116.) Previously, the Court found that
the motion itself is timely and that the memorandum is timely under the mailbox
rule. (ECF No. 119, PageID #1209–10.) Therefore, the Court considers the petition
and the issues it raises on the merits.
However, Mr. Geer filed two additional memoranda that are not timely. 	The
Clerk filed these additional memoranda supporting the motion to vacate on February
11, 2026 and February 17, 2026. 	(ECF No. 120; ECF No. 121.) 	Even under the
mailbox rule, these memoranda are not timely. 	Regarding the first (ECF No. 120),
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the Clerk did not scan the envelope before it mailed the memorandum and the
envelope back to Mr. Geer because it contained personal identifiers. While the Court
cannot analyze the post-marking on that envelope, this additional memorandum was
filed by the Clerk’s Office on February 11, 2026–twenty days after Mr. Geer’s deadline
to file a motion under 28 U.S.C. § 2255. As for the second (ECF No. 121), the envelope
does not contain tracking information, but the post office in Pittsburgh stamped the
envelope on February 13, 2026. (ECF No. 121-1, PageID #1218.) The Clerk filed this
memorandum on February 17, 2026–twenty-six days after Mr. Geer’s filing deadline.
These two memoranda are well outside the mailbox rule. Therefore, the Court finds
that these additional memoranda are not timely and gives them no consideration.
Mr. Geer also filed a motion for a new trial (ECF No. 117), and a motion to
dismiss for lack of subject-matter jurisdiction (ECF No. 118).
ANALYSIS
I. 	Motion to Vacate
Under 28 U.S.C. § 2255, a federal prisoner may move the court that sentenced
him to vacate, set aside, or correct his sentence. The movant may attack his sentence
on the grounds that (1) it was imposed in violation of the Constitution or laws of the
United States; (2) the Court was without jurisdiction to impose such a sentence;
(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).
A petitioner must demonstrate “a fundamental defect which inherently results
in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974).
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A petitioner bears the burden of production to articulate specific facts that entitle
him to relief. O’Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961).
A court should hold an evidentiary hearing on a Section 2255 motion “[u]nless
the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.” 	28 U.S.C. § 2255(b). 	“Conclusions, not substantiated by
allegations of fact with some probability of verity, are not sufficient to warrant a
hearing.” O’Malley, 285 F.2d at 735.
In his motion to vacate (ECF No. 114), and in his timely memorandum
supporting the motion (ECF No. 116), which is his first post-conviction filing,
Mr. Geer advances four grounds for vacating his sentence: (1) ineffective assistance
of counsel; (2) violation of the Sixth Amendment’s Confrontation Clause; (3) violation
of the Fourth and Fourteenth Amendments for arrest without a warrant; and (4) a
right to bear arms under the Second Amendment. 	(Id., PageID #1200–02.) 	In his
original motion, he merely lists the grounds and states “3. ect. more grounds to be
added in separate memorandum.” 	(ECF No. 114, PageID #1186.) 	For Ground 1,
“6 Amendment,” Mr. Geer lists his supporting facts as “memorandum of facts added
at later date.” 	(Id., PageID #1188.) 	For Ground 2, “6 Amendment Confrontation
Clause,” he lists his supporting facts as “[a]dding memorandum at later date.” (Id.,
PageID #1189.) For Ground 3, “14th Amendment Violation,” he lists his supporting
facts as “[n]o arrest warrant for Nicholas Geer.” (Id., PageID #1191.) For Ground 4,
“more grounds to be raised[,]” he lists his supporting facts as “memorandum added
at later date.” (Id., PageID #1192.) In his timely supplement to the motion to vacate
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(ECF No. 116), Mr. Geer provides some supporting facts. (Id., PageID #1200–01.) In
his motion for a new trial (ECF No. 117), Mr. Geer provides facts regarding ineffective
assistance of counsel, which the Court will also consider for Mr. Geer’s motion to
vacate under the standard for that motion. (ECF No. 117, PageID #1204.)
I.A. 	Ineffective Assistance of Counsel (Ground 1)
Mr. Geer argues that his counsel failed to raise essential arguments in his
defense, including “Franks, suppression, ect, including drugs to be retested.” 	(ECF
No. 116, PageID #1200–01.) However, his trial counsel did file a motion to suppress
(ECF No. 37), which the Court denied (ECF No. 47). 	On appeal, the Sixth Circuit
affirmed the denial of Mr. Geer’s motion to suppress. United States v. Geer, No. 23-
3857, 2024 U.S. App. LEXIS 27041, at 5 (6th Cir. Oct. 24, 2024).
Mr. 	Geer 	argues 	that 	his 	counsel 	failed 	to 	raise 	a 	jurisdictional 	issue,
specifically, “[m]y attorney never demanded proof of [f]ederal jurisdiction under 40
U.S.C. 3112”—a statute governing federal land acquisition. 	(ECF No. 116, PageID
#1200.) While Mr. Geer does not elaborate on this issue in his motion to vacate or his
timely supplement, the Court notes that, in a separate motion, Mr. Geer moves to
dismiss for a lack of subject-matter jurisdiction. 	(ECF No. 118.) 	His argument is
premised on one basis for federal jurisdiction, but the law provides for more than one
basis for federal jurisdiction. 	Mr. Geer was charged with violations of federal law
under statutes that Congress validly enacted. 	See United States v. Comstock, 560
U.S. 126, 133–34 (2010). His jurisdictional argument lacks merit.
Mr. Geer argues that neither the prosecutor nor his counsel “gave him a plea
deal (on paper).” (ECF No. 116, PageID #1200.) However, Mr. Geer does not have a
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constitutional right to a plea bargain and a prosecutor is not required to offer one.
See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“But there is no constitutional
right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”) 	In
any event, the United States made a plea offer to Mr. Geer, which his trial counsel
reviewed with him. (Minutes, May 15, 2023.)
Mr. Geer argues that “[m]y attorney failed to raise I never faced my accuser
under 6th Amendment Confrontation Clause.” 	(ECF No. 116, PageID #1200.) 	This
is simply not true. 	Mr. Geer was able to confront his accuser. 	The detective who
investigated the case testified at trial and Mr. Geer’s attorney was able to cross
examine him. 	(ECF No. 89, PageID #782–837.) 	Mr. Geer also received the
opportunity to cross-examine the officer who conducted the search of his home. (Id.,
PageID #872–877.) 	Mr. Geer means that he did not have an opportunity to cross-
examine the confidential source whose information supplied the basis for the search
warrant. But the United States did not call that source as a witness at trial, and his
information provided no part of the evidence at trial. 	Therefore, Mr. Geer does not
have a right to cross-examine that person.
Mr. Geer argues that his counsel failed to argue that he was arrested without
an arrest warrant. 	(ECF No. 116, PageID #1200.) 	However, it is well established
that an individual can be arrested incident to a search, which is what happened here.
See Michigan v. Summers, 452 U.S. 692, 705 (1981). 	(“Because it was lawful to
require respondent to re-enter and to remain in the house until evidence establishing
probable cause to arrest him was found, his arrest and the search incident thereto
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were constitutionally permissible.”) Here, a search warrant for Mr. Geer’s residence
was issued and executed. 	(ECF No. 61, PageID #350–51.) 	During the search of his
residence, Mr. Geer was found hiding in the basement. (ECF No. 89, PageID #851.)
After finding drugs and a weapon, officers placed Mr. Geer under arrest. (Id.)
Mr. Geer argues that his counsel failed to hire a private investigator to
examine the crime scene and raise the issue that there was no evidence of a backdoor.
(ECF No. 116, PageID #1201.) However, the police’s body-worn cameras captured the
backdoor, and the footage was played at trial. (ECF No. 89, PageID #859.)
Mr. Geer argues that his counsel “failed to raise Rule 29 [m]otion of acquittal
after jury verdict or on direct appeal.” 	(ECF No. 116, PageID #1201.) 	The record
demonstrates that defense counsel moved for a judgment of acquittal under Rule 29
at the close of the government’s case in chief. 	(ECF No. 89, PageID #967–68.)
Although the motion was unsuccessful (id., PageID #972), trial counsel did not
provide ineffective assistance by making a Rule 29 motion.
Mr. Geer argues that “[m]y attorney failed to share discovery or explain that
the prosecution has no audio or video footage of December 13, 2021 or 1-13-22 so he
failed to invoke my FOIA under Section 3500.” 	(Id., PageID #1201.) 	These dates
correlate with the controlled drug buys at issue. 	But there is no requirement that
such transactions be recorded. 	And video footage was presented at trial. 	As for
Mr. Geer’s complaints that his attorney failed to review discovery with him, the
record shows otherwise.
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Lastly, Mr. Geer argues that his counsel “failed to raise proper background
issues and that it wasn’t proper background but actually 404(b) and this case during
trial violated Rule 403 and perjured by [j]ury in violated rule 404(b)” and “failed to
raise timeliness of warrant in detail during appeal or stateness [sic] of facts.” 	(Id.,
PageID #1200.) However, Mr. Geer fails to sufficiently develop these arguments for
the Court to consider.
Accordingly, Mr. Geer’s arguments of ineffective assistance of counsel do not
warrant vacating his sentence.
I.B. 	Confrontation Clause (Ground 2)
Mr. Geer argues that his Sixth Amendment rights under the Confrontation
Clause were violated. 	(Id., PageID #1201.) 	However, Mr. Geer offers no facts in
support of this argument. 	Instead, he indicates that there was “support attached.”
(Id.) The Court has reviewed all documents that were mailed in that same envelope
and has not identified any such supporting facts. 	However, Mr. Geer develops a
Confrontation Clause argument in support of his ground for ineffective assistance of
counsel, which the Court will consider. 	Mr. Geer argues that he “never faced his
accuser under 6th Amendment Confrontation Clause.” 	(Id., PageID #1200.) 	As
previously discussed, Mr. Geer confronted his accusers. 	The investigating detective
and the officer who conducted the search of his home testified at trial, and Mr. Geer’s
attorney had an opportunity to cross-examine them. (ECF No. 89, PageID #782–877.)
He 	had 	no 	right 	to 	cross-examine 	the 	confidential 	source 	who 	provided 	the
information supporting the search warrant.
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Accordingly, Mr. Geer’s arguments regarding the Confrontation Clause do not
warrant vacating his sentence.
I.C. 	Fourth and Fourteenth Amendments (Ground 3)
Mr. Geer argues that his “home was breached under violation of the Fourth
Amendment.” (ECF No. 116, PageID #1201.) In his motion to vacate and his timely
supplemental materials, Mr. Geer provides no facts that support this argument. In
his appeal, Mr. Geer argued that the search warrant was improper and that all
evidence obtained from the warrant should have been suppressed. See United States
v. Geer, No. 23-3857, Appellant’s Brief at 20,. 	The Sixth Circuit affirmed denial of
Mr. Geer’s motion to suppress, stating that “[t]he search warrant affidavit here easily
passes the probable cause bar.” Geer, 2024 U.S. App. LEXIS 27041, at 5.
Next, he argues that his Fourteenth Amendment rights were violated because
he was arrested without an arrest warrant. (ECF No. 116, PageID #1201.) However,
it is well established that an individual can be arrested incident to a search. 	See
Michigan v. Summers, 452 U.S. 692, 705 (1981). His residence was searched pursuant
to a search warrant, and the officers found drugs and a weapon. (ECF No. 61, PageID
#350–51; ECF No. 89, PageID #851.) 	After finding Mr. Geer in the basement, the
officers placed him under arrest. (ECF No. 89, PageID #851.)
Accordingly, 	Mr. 	Geer’s 	arguments 	under 	the 	Fourth 	and 	Fourteenth
Amendments do not warrant vacating his sentence.
I.D. 	Second Amendment (Ground 4)
Mr. Geer argues that his Second Amendment rights were violated. 	(ECF
No. 116, PageID #1201.) In support, he states, "[m]y 2nd Amendment was violated.
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Supporting facts, I have a right to bear arms as the people under the Constitution of
America." 	(Id., PageID #1202.) That is the extent of his argument.
Generally, courts apply a procedural default rule that bars relief on claims in
a Section 2255 motion that could have been, but were not, raised on appeal. 	“First,
in a rule designed to ensure that section 2255 proceedings will not develop into a
substitute for direct appeal, the courts generally apply a ‘procedural default’ rule
barring section 2255 relief on claims that the movant could have, but did not, raise
on appeal.” 	2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice
and Procedure § 41.4 (2026). 	After reviewing the appellate record, the Court
determines that the only issue related to the Second Amendment was Mr. Geer’s
motion to suppress a firearm:
Mr. Geer's attorney renewed his request for acquittal pursuant to Crim.
R. 29, based upon the lack of connection or identification between
Mr. Geer and the gun required for both Counts 8 and 9; felon in
possession of a gun and possession of a gun in a drug offense. 	No one,
not even the confidential sources, ever said that Mr. possessed a gun at
any time.
United States v. Geer, No. 23-3857, Appellant’s Brief at 17. 	Later in his appellate
brief, Mr. Geer advances a related argument:
[T]he failure of the Government to fingerprint the gun found in a
common kitchen area, and failure to obtain DNA evidence on alleged
criminal tools is obfuscated when the Government is permitted to
submit unsworn evidence from confidential sources who do not testify
and are not subject to cross-examination by defense counsel.
Id., at 29.
Accordingly, the Second Amendment issue that Mr. Geer raised on appeal was
limited to the suppression of the firearm and testimonial evidence, which differs from
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the Second Amendment ground he advances in his motion to vacate. Moreover, Mr.
Geer never raised a Second Amendment issues at or before trial. Therefore, the Court
determines that Mr. Geer procedurally defaulted and waived his Second Amendment
claim and is barred from raising it as a ground in his motion to vacate.
* 	* 	*
Therefore, the Court DENIES Mr. Geer’s motion to vacate.
II. 	Motion for a New Trial
A court has discretion to “vacate any judgment and grant a new trial if the
interest of justice so requires.” 	Fed. R. Crim. P. 33(a). 	“Motions for a new trial are
not favored and are granted only with great caution.” 	United States v. Garner, 529
F. 2d 962, 969 (6th Cir. 1976) (citing United States v. Hoffa, 382 F.2d 856, 962 (6th
Cir. 1967)). 	A motion for a new trial involves a more generous standard of review
than a motion under Rule 29. 	United States v. Turner, 490 F. Supp. 583, 593 (E.D.
Mich. 1979), aff’d, 633 F. 2d 219 (6th Cir. 1980). 	Such a motion may raise the
argument that the jury’s verdict is against the manifest weight of the evidence,
though that evidence might be legally sufficient for a finding of guilt. United States
v. Hughes, 505 F.3d 578, 592-93 (6th Cir. 2007). 	On Rule 33 motion, the court may
act as a thirteenth juror, assess the credibility of witnesses, and weigh the evidence.
United States v. Lutz, 154 F. 3d 581, 589 (6th Cir. 1998).
Still, “such motions are granted only “in the extraordinary circumstances
where the evidence preponderates heavily against the verdict.” Hughes, 505 F.3d at
593 (quoting Turner, 490 F. Supp. at 593). The court’s role seeks to ensure against a
miscarriage of justice, United States v. Ashworth, 836 F. 2d 260, 266 (6th Cir. 1988),
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such as where the judge disagrees with the jury’s resolution of conflicting evidence,
Tibbs v. Florida, 457 U.S. 31, 42 (1982).
Mr. Geer moved for a new trial under Rule 33. (ECF No. 117.) He raises two
grounds in support of his motion: (1) ineffective assistance of counsel; and (2) newly
discovered evidence. 	(Id., PageID #1203–04.) 	As an initial matter, the Court must
determine whether each ground is timely.
II.A. Timeliness
A motion for a new trial based on ineffective assistance of counsel “must be
filed within 14 days after the verdict or finding of guilt.” 	Fed. R. Crim. P. 33(b)(2).
Mr. 	Geer was 	convicted on 	June 	1, 	2023. 	(ECF 	No. 	90, PageID #1095–96.)
Accordingly, his motion for a new trial based on ineffective assistance of counsel was
due by June 15, 2023. 	Mr. Geer’s motion for a new trial was filed on January 27,
2026. 	Therefore, his ground for ineffective assistance is not timely, and the Court
does not consider it.
A motion for a new trial based on newly discovered evidence “must be filed
within [three] 3 years after the verdict or finding of guilt.” Fed. R. Crim. P. 33(b)(1).
Mr. Geer’s motion for a new trial based on newly discovered evidence was due by
June 1, 2026. 	Mr. Geer’s motion for a new trial was filed on January 27, 2026.
Therefore, his ground for newly discovered evidence is timely.
II.B. Newly Discovered Evidence
To be granted a new trial on the basis of newly discovered evidence, a
defendant must establish that “(1) the new evidence was discovered after the trial;
(2) the evidence could not have been discovered earlier with due diligence; (3) the
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evidence is material and not merely cumulative or impeaching; and (4) the evidence
would likely product acquittal.” 	United States v. Seago, 930 F.2d 482, 488 (6th Cir.
1991). 	Here, Mr. Geer describes the new evidence as consisting of fingerprint and
DNA evidence, among other things:
[t]he new evidence being new fingerprint evidence that me Mr. Geer did
not have any. 	DNA evidence that me Mr. Geer did not have any.
Firearm identification that the firearm was not stolen or register[ed] in
someone’s name. Also that the target location of “the backdoor” on 2843
E. Derbyshire, Cleveland Heights, OH 44118 does not exist.
(ECF No 117, PageID #1203.)
This is not newly discovered evidence. 	The lack of fingerprint and DNA
evidence was available at trial. Further, the backdoor was captured on police body-
worn camera footage, which was played at trial, and the officer testified that the
backdoor leads directly to the driveway. (ECF No. 89, PageID #859–60.)
Even if it were newly discovered evidence, the evidence is not material to
Mr. Geer’s conviction. 	He was charged with and convicted of 7 counts of possession
with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C), one count of being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count of possession of a
firearm 	in 	furtherance 	of 	a 	drug 	trafficking 	crime 	in 	violation 	of 	18 	U.S.C.
§ 924(c)(1)(A)(i). (ECF No. 14, PageID 64–69.) He was convicted on all counts. (ECF
No. 71.) 	The facts regarding the gun are not material to his conviction for drug
possession. Whether the gun was stolen or registered in someone else’s name has no
bearing on Mr. Geer’s control and possession of the gun at the time that it was
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discovered because of his status as a felon. Similarly, the lack of DNA and fingerprint
evidence is not material to his conviction. The evidence presented at trial, including
the gun and drugs that were recovered and testimony from the agents involved in the
investigation, were enough for the jury to find that Mr. Geer possessed each.
Therefore, the Court DENIES Mr. Geer’s motion for a new trial.
III. 	Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Also, Mr. Geer filed a motion to dismiss based on lack of subject matter
jurisdiction. (ECF No. 118.) He argues that “[t]he alleged offenses in this case were
investigated by [S]tate authorities, occurred on [S]tate land, and involved no [f]ederal
property, officers, or federal interest.” 	(ECF 118, PageID #1208.) 	As the Court
previously explained, Mr. Geer’s argument is premised on one basis for federal
jurisdiction, but there is not only one basis for federal jurisdiction. 	Mr. Geer was
charged with violations of federal law under statutes that Congress validly enacted
and provide for jurisdiction here. 	18 U.S.C. § 3231; see United States v. Comstock,
560 U.S. 126, 133-34 (2010). 	Therefore, the Court DENIES Mr. Geer’s motion to
dismiss for lack of subject matter jurisdiction.
CERTIFICATE OF APPEALABILITY
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). 	Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 	28 U.S.C. § 2253(c)(2). 	This means that the petitioner must
show that reasonable jurists would find the district court’s determination of the
relevant constitutional claims debatable or incorrect. 	Tennard v. Dretke, 542 U.S.
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274, 282 (2004). 	The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. 	Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
Based 	on 	this 	standard, 	Mr. 	Geer 	does 	not 	qualify 	for 	a 	certificate 	of
appealability. 	While 	Mr. 	Geer 	claims 	that 	the 	Court 	denied 	him 	numerous
constitutional rights, he fails to make a substantial showing or provide support for
his arguments. No reasonable jurist could fairly debate this conclusion.
CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Geer’s motion to vacate and
FINDS that an evidentiary hearing is not warranted. Further, the Court DENIES
his motion for a new trial and DENIES his motion to dismiss for lack of subject
matter jurisdiction. Pursuant to 28 U.S.C.§ 2253, the Court DECLINES to issue a
certificate of appealability.
SO ORDERED.
Dated: May 13, 2026
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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