NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAFARA ECHO SHORTMAN, 

Petitioner-Appellant, 

 v. 

UNITED STATES OF AMERICA, 

Respondent-Appellee.

No. 19-35768 

D.C. Nos. 1:18-cv-00177-DLC 

1:18-cr-00028-DLC-1 

MEMORANDUM*

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.

FILED

JUN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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. SandovalLopez, 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
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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 
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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. FabianBaltazar, 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 
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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.