Safara Shortman v. United States ( 2021 )

NOT FOR PUBLICATION FILED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
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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. 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
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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.
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