UNITED STATES v. BUMMER (2021)

United States Court of Appeals, Ninth Circuit.2021-06-23No. No. 20-35169

Summary · law.co

Holding. The court denied Bummer's application for a certificate of appealability because his ineffective-assistance-of-counsel claims did not demonstrate that reasonable jurists could disagree with the district court's rejection of those claims.

Scott Bummer sought to vacate his sentence through a federal habeas petition under 28 U.S.C. § 2255, claiming his trial attorneys provided ineffective assistance. The district court issued a certificate of appealability but failed to identify which constitutional issues satisfied the legal standard for appeal. The appellate court treated Bummer's appeal as a new application for a certificate of appealability and evaluated his five ineffective-assistance claims on the merits.

The court rejected each claim. Bummer's attorneys had properly communicated plea offers and their consequences; Bummer lacked legal standing to challenge evidence seized from another person's phone, so declining to file such a motion was not deficient; an objection to Bummer's absence at a telephone conference had been foreclosed by a prior direct appeal decision; counsel's choice not to call two detectives was a reasonable tactical decision because their testimony would have harmed the defense; and Bummer's final allegation about unreviewed exculpatory material was too vague to constitute a viable claim.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether trial counsel failed to inform defendant of consequences of rejecting plea offers
Whether counsel was deficient for not challenging location data from a third party's cell phone
Whether counsel was ineffective for failing to object to defendant's absence at a telephone conference
Whether counsel's decision not to call particular detective witnesses was unreasonable trial strategy
Whether vague allegations of failure to review exculpatory material state a cognizable claim

Procedural posture

Bummer appealed the district court's denial of his 28 U.S.C. § 2255 motion to vacate, and the appellate court treated the appeal as an application for a certificate of appealability.

Authorities cited

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Opinion · public domain

MEMORANDUM ***

Scott Bummer appeals from the district courts order denying his motion to vacate his sentence under 28 U.S.C. § 2255. The district court issued a certificate 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, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). Because the certificate issued by the district court was deficient, we construe Bummers appeal as an application for a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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 courts resolution of his constitutional claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Bummers 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 governments plea offers. But the record shows that Bummers 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 governments 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 Amatos cell phone. But Bummer did not have standing to challenge the admission of evidence seized from another persons cell phone. See Rakas v. Illinois, 439 U.S. 128, 140, 150, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Bummers 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 Bummers absence at a telephone conference. This claim is foreclosed by our decision on direct appeal in United States v. Bummer, 731 F. Appx 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 Bummers 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. Bummers 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.