NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAFARA ECHO SHORTMAN, No. 19-35768

Petitioner-Appellant, D.C. Nos. 1:18-cv-00177-DLC 1:18-cr-00028-DLC-1 v.

UNITED STATES OF AMERICA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted June 10, 2021 Seattle, Washington

Before: GILMAN,** GOULD, and MILLER, Circuit Judges.

Safara Shortman appeals the district court’s denial of her pro se motion to

vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. Shortman

alleges that she received constitutionally ineffective assistance of counsel (“IAC”)

because “defense counsel failed to file a notice of appeal when one was requested.”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. We have jurisdiction under 28 U.S.C. § 1291 and § 2255(d). We vacate and

remand with instructions.

1. Under Strickland v. Washington, 466 U.S. 668 (1984), an ineffective

assistance of counsel claim requires the defendant to show deficient performance

and prejudice. Id. at 687. The Supreme Court applied Strickland to a claim

involving a notice to appeal in Roe v. Flores-Ortega, 528 U.S. 470 (2000), where

the Court held that counsel’s performance is deficient when counsel “disregards

specific instructions from the defendant to file a notice of appeal.” Id. at 477. We

have since held that prejudice is presumed when counsel disregards an express

instruction to file an appeal, and therefore a district court errs by summarily

dismissing a claim presenting such an allegation. See United States v. Sandoval-

Lopez, 409 F.3d 1193, 1196–98 (9th Cir. 2005).

If it is not clear that a defendant instructed her attorney to appeal, then we

ask whether counsel had a duty to consult the defendant about appealing. A duty

to consult arises “when there is reason to think either (1) that a rational defendant

would want to appeal (for example, because there are nonfrivolous grounds for

appeal), or (2) that this particular defendant reasonably demonstrated to counsel

that [s]he was interested in appealing.” Flores-Ortega, 528 U.S. at 480 (emphasis

added).

The district court erred in finding that Shortman, proceeding pro se, alleged

2 insufficient facts to warrant an evidentiary hearing on her IAC claim. We must

remand for an evidentiary hearing if the movant has “allege[d] specific facts,

which if true, would entitle h[er] to relief.” Sandoval-Lopez, 409 F.3d at 1198

(citation omitted). Shortman’s allegations meet this burden. We reiterate that

“[p]ro se habeas petitioners cannot be held to the same standard as petitioners

represented by counsel.” Id. In her initial motion, Shortman alleged that “defense

counsel failed to file a notice of appeal when one was requested.” When the

district court asked for clarification, she alleged that she approached counsel

shortly after sentencing and stated that she did not agree with what happened at

sentencing and asked trial counsel to “do something to help her.” If that allegation

is credited, defense counsel would have known she was requesting an appeal or

would have at least recognized that she “reasonably demonstrated” an interest in

appeal, giving rise to a duty to consult. See Flores-Ortega, 528 U.S. at 480

(holding that courts must consider “all the information counsel knew or should

have known” in determining whether the defendant “reasonably demonstrated” a

desire for appeal). Giving due consideration to Shortman’s pro se status, as we

must, her allegations are “specific enough” to warrant an evidentiary hearing. See

Sandoval-Lopez, 409 F.3d at 1198.

We remand to the district court for an evidentiary hearing to determine

whether it is true that Shortman requested an appeal. If a hearing substantiates

3 Shortman’s claim that she requested an appeal, the district court can “vacate and

reenter the judgment, allowing the appeal to proceed.” United States v. Fabian-

Baltazar, 931 F.3d 1216, 1218 (9th Cir. 2019) (quoting Sandoval-Lopez, 409 F.3d

at 1198). Alternatively, absent objection from the state, the district court can allow

Shortman to appeal without conducting a hearing, “assuming without deciding that

the petitioner’s claim is true.” Id. (quoting Sandoval-Lopez, 409 F.3d at 1198).

If—after a hearing—the district court determines that Shortman did not expressly

request an appeal, the court should ask “whether counsel failed to consult, and if

so, whether that failure constituted deficient performance.” See id.

2. Shortman requests that we expand the certificate of appealability to

include two additional IAC claims. We decline to do so because she has not made

“a substantial showing of the denial of a constitutional right” for either uncertified

claim. 28 U.S.C. § 2253(c)(2). In her first uncertified claim, Shortman alleges

that—due to ineffectiveness of counsel—she pleaded guilty without understanding

that she would be subject to mandatory minimum penalties. We disagree. The

record of the change of plea hearing reflects that Shortman understood the

mandatory penalties she was facing by pleading guilty. In her second uncertified

claim, Shortman alleges that defense counsel was ineffective for not challenging

the purity and quantity of methamphetamine that was attributed to her at

sentencing. Again, we disagree, because Shortman does not allege facts

4 suggesting that counsel could have challenged the purity and quantity of the

methamphetamine in the controlled buys, such as facts that cast doubt on the

testing agency’s neutrality or methodology. Accordingly, we do not expand the

certificate of appealability.

VACATED and REMANDED with instructions.

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