United States v. Scott Bummer

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 2021
• Docket: 20-35169
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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.