NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. SCOTT MITCHELL BUMMER,

Defendant

- Appellant. No. 20

- 35169
D.C. Nos. 4:19

- cv - 00030

- BMM

4:15

- cr - 00046

- BMM

- 2

MEMORANDUM *

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. 

# FILED

JUN 23 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

of appealability without specify ing 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 certificat e 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).
Th at standard is satisfied if the petitioner demonstrates “that jurists of reason could disagree with the district court’s resolution o f his constitutional claims.” Miller

- El
v. Cockrell , 537 U.S. 322, 327 (2003). Bummer’s claims do not meet th at standard.
1. Bummer claims that his attorneys were deficient in failing to inform him of the consequences of rejecting the government’s plea off ers. But the re cord
shows that Bummer’s attorneys communicated e ach 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

consequen ces of refusing the government’s plea offers. See United States v.
Rivera

- Sanchez , 2 22 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. But3

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 we re 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 b y 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 dam aged 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 in effective assistance of
counsel. See Shah v. United States , 878 F.2d 1156, 116 1 (9th Cir. 1989).
D ENIED.