United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
MORRIS, UNITED STATES DISTRICT JUDGE
case comes before the Court on Defendant/Movant Scott
Mitchell Bummer's motion to vacate, set aside, or correct
his sentence, pursuant to 28 U.S.C. § 2255. Bummer is a
federal prisoner proceeding pro se.
Court ordered Bummer's three court-appointed attorneys to
submit affidavits responding to Bummer's allegations
about plea bargaining on September 23, 2019. See Order (Doc.
211) at 2; Counsel Resps. (Docs. 212, 213, 214). Bummer has
replied to the responses filed by his former counsel (Doc.
Court first must determine whether “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); see also Rule 4(b), Rules Governing Section 2255
Proceedings for the United States District Courts. A
petitioner “who is able to state facts showing a real
possibility of constitutional error should survive Rule 4
review.” Calderon v. United States Dist.
Court, 98 F.3d 1102, 1109 (9th Cir. 1996)
(“Nicolas”) (Schroeder, C.J., concurring)
(referring to Rules Governing § 2254 Cases). The Court
should “eliminate the burden that would be placed on
the respondent by ordering an unnecessary answer.”
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2254 Cases, cited in Advisory Committee Note (1976),
Rule 4, Rules Governing § 2255 Proceedings.
Summary of the Investigation
summary describes evidence presented at the suppression
hearing and at trial. It is not intended to encompass all the
evidence and does not find facts to be true or false.
spring of 2015, detectives and undercover officers with a
drug interdiction task force were investigating Tony
Amato's drug trafficking activity in Great Falls,
Montana. Authorities believed that someone in Helena supplied
Amato with drugs. Based on this information, Detective
McDuffie obtained a federal search warrant that authorized
the task force to track Amato's location up until April
3, 2015, by monitoring his cell phone “pings.”
See Sealed Application and Warrant (Docs. 1, 1-1, 1-2, 1-3)
& Warrant (Doc. 2), In the Matter of the Search of
Information Regarding the Location of Cellular Telephone
Number, No. MJ 15-08-GF-JTJ (D. Mont. Mar. 26,
2015); see also 1 Suppression Hr'g Tr. (Doc.
85) at 60:12-62:10 (Det. Kruse). The detectives only
monitored pings that may have indicated that Amato had
traveled from Great Falls to Helena.
task force tracked Amato's phone on April 1, 2015, to a
Helena business called Montana Fluid Power. Bummer owned
Montana Power Fluid. Amato traveled to a rural residence east
of Helena on April 4, 2015. One detective, McDuffie,
recognized the location as Bummer's home. Another
detective, Kruse, recognized Bummer's name from other
investigations. See 1 Suppression Hr'g Tr. (Doc. 85) at
17:7-21:1 (Kruse), 83:16-85:12, 92:13-93:11 (Det. McDuffie).
April 11, 2015-more than one week after the tracking warrant
had expired-Amato traveled from Great Falls to Bummer's
home in Helena. Amato then drove to an unidentified location
in Helena, and later returned to Bummer's house. Amato
next stopped at a gas station and, near Holter Lake, picked
up a boat before returning to Great Falls. Authorities
surveilled Amato by helicopter and tracked him by cell phone
pings, but law enforcement officers did not know his location
at all times during the trip. Amato later testified at trial
about where he went and when. See Id. at 25:11-26:11
(Kruse); 2 Trial Tr. (Doc. 201) at 11:1- 21:23, 24:6-24:12
(Air Interdiction Agent Dascoulias), 47:15-56:23 (Amato).
highway patrol officers stopped Amato as he traveled on
Interstate 15 near Ulm. The officers searched Amato and found
110.3 grams of methamphetamine of 97.8% purity, or 107.8
grams of actual methamphetamine. See 2 Trial Tr. at 57:2-60:5
(Amato), 134:25-135:11 (forensic chemist Huntington). Amato
told detectives that he had gotten the methamphetamine
“in Helena from a guy named Scott.” Amato
identified a photograph of Bummer as “Scott.” See
1 Suppression Hr'g Tr. at 29:23-30:8 (Kruse).
on Amato's statements and other information, see Br. in
Supp. of Mot. to Suppress Ex. 1 (Doc. 52-1) (Application and
Warrant); 1 Suppression Hr'g Tr. (Doc. 85) at
100:2-104:21 (McDuffie), officers detained Bummer and
executed search warrants at his house and business on April
12, 2015. Officers found a scale, plastic bags, and a safe in
Bummer's bedroom. Inside the locked safe, officers found
a loaded revolver, another handgun, more than $7, 000 in
cash, a list of names and phone numbers, and 120.6 grams of
methamphetamine of 98% purity, or 118.1 grams of actual
methamphetamine. See 2 Trial Tr. (Doc. 201) at 100:7-101:7,
106:17-120:9 (Det. Hinchman), 136:13-137:6 (Huntington).
jury indicted Bummer and Amato on August 21, 2015, on one
count of conspiring to distribute and possess with intent to
distribute 50 grams or more of actual methamphetamine in
violation of 21 U.S.C. § 846 (Count 1), and one count of
possessing 50 or more grams of actual methamphetamine with
intent to distribute it in violation of 21 U.S.C. §
841(a)(1) (Count 2). See Indictment (Doc. 1) at 2-3. Due to
the amount and type of drug alleged, conviction on either
count would have subjected Bummer to a ten-year mandatory
minimum sentence and a maximum sentence of life in prison.
See 21 U.S.C. § 841(b)(1)(A)(viii).
pled guilty to a lesser charge of possessing five or more
grams of actual methamphetamine with intent to distribute it
on September 29, 2015. The lesser charge subjected Amato to a
mandatory minimum sentence of five years and a maximum of 40
years in prison. See Minutes (Doc. 37); Superseding
Information (Doc. 35); 21 U.S.C. § 841(b)(1)(B)(viii).
grand jury handed down a superseding indictment on October
23, 2015. The superseding indictment added a third count that
charged Bummer with possessing firearms in furtherance of
drug trafficking in violation of 18 U.S.C. §
924(c)(1)(A) (Count 3). If convicted on Count 3, Bummer would
have faced at least five years in prison, to run
consecutively to any other term. See 18 U.S.C. §
moved to suppress the fruits of the search of his home on
November 10, 2015. He argued that the warrant application
contained false information and omitted adverse information
about a confidential informant's credibility. After
hearing two and a half hours of testimony, hosting a
half-hour phone conference discussing how to conduct the
remainder of the hearing, and taking about 80 more minutes of
ex parte testimony by government witnesses,  the Court denied
the motion. See Minutes (Docs. 63, 66, 69); 2 Suppression
Hr'g Tr. (Doc. 86) at 12:20-16:4.
little over a year later, following a substitution of
counsel, an evaluation of Bummer's competency, and
another substitution of counsel, trial commenced on December
12, 2016. See Orders (Docs. 98, 104, 119); Minutes (Doc. 112,
118, 150). The jury deliberated for about two and a half
hours before on December 13, 2016, finding Bummer guilty on
all counts and responsible, on Counts 1 and 2, for 50 or more
grams of actual methamphetamine. See Minutes (Doc. 154);
Verdict (Doc. 160) at 1-3. Regarding forfeiture, the jury
found by a preponderance of the evidence that Bummer had
obtained the cash in the safe from drug trafficking and that
Bummer had used some of the firearms found in or near the
safe to facilitate drug trafficking. See Forfeiture Verdict
(Doc. 163) at 1-3.
Court adopted the presentence report without change. With a
total offense level of 32 and a criminal history category of
I, Bummer's advisory guideline range was 121 to 151
months on Counts 1 and 2. With a downward variance, the Court
sentenced Bummer on Counts 1 and 2 to 120 months, the
statutory mandatory minimum, plus a consecutive 60-month
mandatory minimum on Count 3, for a total prison term of 180
months, to be followed by a five-year term of supervised
release. See Statement of Reasons (Doc. 187) §§
I(A), III; Minutes (Doc. 184); Judgment (Doc. 186) at 2-3.
appealed. He challenged the denial of his suppression motion
and his exclusion from the phone conference held between the
two evidentiary hearings on the motion. The Ninth Circuit
rejected his arguments and affirmed his conviction. See 9th
Cir. Mem. Disp. (Doc. 204) at 2-3, United States v.
Bummer, No. 17-30046 (9th Cir. July 20, 2018).
conviction became final when the United States Supreme Court
denied his petition for writ of certiorari on November 5,
2018. See Clerk Letter (Doc. 207) at 1; Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012). He timely filed his
§ 2255 motion on April 1, 2019. See 28 U.S.C. §
2255(f)(1); Houston v. Lack, 487 U.S. 266, 276
(1988); Mot. § 22255 (Doc. 208) at 5 ¶ C.
Claims and Analysis
Bummer's claims allege that his counsel provided
ineffective assistance in various respects. At this stage of
the proceedings, Bummer must allege facts sufficient to
support inferences that counsel's performance fell
outside the wide range of reasonable professional assistance,
see Strickland v. Washington, 466 U.S. 668, 687-88
(1984), and that, but for counsel's unprofessional
performance, he had a reasonable probability of obtaining a
better outcome, Id. at 694. The Court addresses
separately each claim raised by Bummer.
Amato's Phone, Pings, and Helicopter Surveillance
alleges that the officers illegally collected cell-phone
“ping” information. He argues that he had
standing to challenge the tracking because the pings led to
him. He also refers to the time limitation contained in the
warrant, and he suggests that “[a] Court Order is not a
search warrant.” See Mem. at 27 (citing Carpenter v.
United States, __ U.S. __, 138 S.Ct. 2206 (2018)); see
also Carpenter, 138 S.Ct. at 2221-23. Bummer also
mentions that Amato's passenger eluded charges.
States Magistrate Judge John Johnston issued a search
warrant, not an order, authorizing the task force to track
Amato's pings on or before April 3, 2015. See Warrant
(Doc. 2), In the Matter of the Search of Information
Regarding the Location of Cellular Telephone Number, No.
MJ 15-08-GF-JTJ (D. Mont. Mar. 26, 2015) (sealed).
Bummer's counsel attached the warrant application as a
sealed exhibit to the brief supporting his motion to
suppress. See Br. in Supp. of Mot. to Suppress Ex. 4 (Doc.
53-2) (filed under seal). The officers needed no additional
warrant to relay location information to the helicopter or to
follow Amato to where the pings led.
appears to be correct about the expiration of Judge
Johnston's warrant. Bummer lacks any legally cognizable
claim, however, to the protection of the warrant's time
limits. See United States v. Lopez-Cruz, 730 F.3d
803, 807 (9th Cir. 2013) (explaining elements of standing to
seek suppression). Bummer alleges no fact to suggest that he
possessed a property interest in Amato's phone or its
pings. See Id. (quoting United States v.
Padilla, 508 U.S. 77, 82 (1993) (per curiam) (disavowing
“co-conspirator exception” to limitations on
Fourth Amendment standing)). Bummer alleges no fact to
suggest that he possessed a subjective expectation that the
location of Amato's phone would remain private. See
Id. (quoting Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J., concurring)). Bummer
certainly had a reasonable expectation of privacy in the
curtilage and interior of his home. No government agent
breached the curtilage.
recognize Bummer's standing to contest the tracking of
Amato's pings, the Court would have to conclude that
Bummer possessed both a subjective and an objectively
reasonable expectation of privacy in the geographic location
and identification of his house. Assuming one can reasonably
expect privacy in the existence of a place, Bummer alleges no
fact to suggest that he entirely concealed his home from view
or that he received no mail or services there. A task force
detective testified that he had long known where Bummer
lived. See 1 Suppression Hr'g Tr. (Doc. 85) at
83:16-84:15. Nothing in the record or in Bummer's current
allegations supports an inference that Bummer might have
established standing to challenge the tracking of Amato's
pings and location.
refers to Amato's passenger's “release from
State charges.” See Mem. at 19. Bummer provides no
reason to infer either that she was released for reasons
pertinent to him or that someone else's release from
state charges establishes that his own counsel provided
ineffective assistance in a federal case.
Bummer's claims support an inference either that counsel
performed unreasonably or that Bummer had a reasonable
probability of a better outcome. Bummer's allegations
fail to meet either prong of the Strickland test.
The Court denies all claims suggesting Bummer's rights
were violated by tracking Amato's pings, by relaying
information to ...