United States v. Scott Bummer ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-35169
Plaintiff-Appellee, D.C. Nos. 4:19-cv-00030-BMM
4:15-cr-00046-BMM-2
v.
SCOTT MITCHELL BUMMER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted June 10, 2021**
Seattle, Washington
Before: GILMAN,*** GOULD, and MILLER, Circuit Judges.
Scott Bummer appeals from the district court’s order denying his motion to
vacate his sentence under 28 U.S.C. § 2255. The district court issued a certificate
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
of appealability without specifying the issues that meet the standard for appeal
under 28 U.S.C. § 2253(c)(3). See Gonzalez v. Thaler, 565 U.S. 134, 146 (2012).
Because the certificate issued by the district court was deficient, we construe
Bummer’s appeal as an application for a certificate of appealability. See Slack v.
McDaniel, 529 U.S. 473, 483 (2000); Sassounian v. Roe, 230 F.3d 1097, 1100–01
(9th Cir. 2000). We deny the application.
We grant a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
That standard is satisfied if the petitioner demonstrates “that jurists of reason could
disagree with the district court’s resolution of his constitutional claims.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). Bummer’s claims do not meet that standard.
1. Bummer claims that his attorneys were deficient in failing to inform
him of the consequences of rejecting the government’s plea offers. But the record
shows that Bummer’s attorneys communicated each plea offer to Bummer and
advised him that he should accept the offer rather than risk the fifteen-year
mandatory-minimum sentence. Bummer was therefore adequately informed of the
consequences of refusing the government’s plea offers. See United States v.
Rivera-Sanchez, 222 F.3d 1057, 1060–61 (9th Cir. 2000).
2. Bummer claims that his attorneys were deficient in failing to
challenge the admission of location data seized from Tony Amato’s cell phone. But
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Bummer did not have standing to challenge the admission of evidence seized from
another person’s cell phone. See Rakas v. Illinois, 439 U.S. 128, 140, 150 (1978).
Bummer’s attorneys were not deficient in declining to file a meritless motion. See
Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985).
3. Bummer claims that counsel was ineffective in failing to object to
Bummer’s absence at a telephone conference. This claim is foreclosed by our
decision on direct appeal in United States v. Bummer, 731 F. App’x 721, 722 (9th
Cir. 2018). See Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972) (per
curiam).
4. Bummer claims that trial counsel was ineffective in failing to call
detectives Patrick Kruse and Patrick McDuffie to testify at trial. Because testimony
from these detectives would have likely damaged Bummer’s case, not helped it,
trial counsel made a reasonable tactical decision not to call them. See Wildman v.
Johnson, 261 F.3d 832, 839 (9th Cir. 2001).
5. Bummer’s allegation that his attorneys failed to review “available
exculpatory material” is too vague to state a claim for ineffective assistance of
counsel. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).
DENIED.
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