Opinion by Judge PREGERSON; Dissent by Judge NOONAN.
ORDER
In response to a petition for panel rehearing from Plaintiff-Appellee United States of America, the majority opinion filed August 19, 2010, slip op. 12207, and appearing at 618 F.3d 1008 (9th Cir.2010), is hereby amended as follows:
At slip op. at 12220, line 31 [618 F.3d at 1017], after the sentence “Because the district court did not order the government to respond to Withers’s motion, the government never raised an affirmative procedural bar defense in the district court,” add the following sentence and citation: “Further, the district court did not give notice of procedural default on its own initiative. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998).”
With this amendment, Judges Pregerson and Paez have voted to deny the petition for panel rehearing. Judge Noonan abstains from voting on the petition.
No further petitions for panel rehearing will be entertained.
PREGERSON, Circuit Judge:
OPINION
Michel Withers (‘Withers”) appeals the district court’s denial of his 28 U.S.C. § 2255 habeas motion.1 Withers also appeals the district court’s decision that his notice of appeal of the district court’s denial of his § 2255 motion was untimely. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255(d), and, for the reasons explained below, we REVERSE.
I.
In 1998, a federal jury found Withers guilty of possession of controlled substances with intent to distribute, money laundering, engaging in a continuing criminal enterprise, and conspiracy to possess controlled substances with the intent to [1060]*1060distribute. The district court sentenced Withers to life imprisonment plus 360 months, but eventually reduced the sentence to 365 months concurrent with 360 months.
In 2001, Withers filed a 28 U.S.C. § 2241 petition for habeas relief. The district court denied that petition, and we denied Withers’s request for a certificate of appealability.
In 2003, Withers filed a 28 U.S.C. § 2255 motion for habeas relief. Because Withers had previously filed a § 2241 habeas petition, the district court treated Withers’s § 2255 motion as a second or successive motion filed without permission, and denied it. Withers appealed. On appeal, the government conceded that, under Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003),2 the district court erred in treating Withers’s § 2255 habeas motion as a second or successive motion. Accordingly, we remanded for the district court to consider the merits of Withers’s § 2255 motion.
On remand, however, the district court did not consider the merits of Withers’s § 2255 motion, but instead erroneously reconsidered Withers’s sentence. As a result, we again remanded for the district court to consider the merits of Withers’s § 2255 motion.
On July 1, 2005, the district court filed a three-sentence order denying Withers’s § 2255 motion:
This matter was remanded by USCA 9th Circuit for this court to consider the merits of appellant’s 2255 motion pursuant to the Supreme Court’s decision in Castro v. United States.
This court has considered the merits of appellant’s 2255 motion pursuant to the Supreme Court’s decision in Castro v. United States.
The motion is denied.
On November 7, 2005, Withers filed a notice of appeal. The district court concluded that Withers failed to make a “substantial showing of the denial of a constitutional right,” and, on that basis, declined to issue Withers a certificate of appealability. Undeterred, Withers continued to pursue his appeal and sought a certificate of appealability from this court.
On August 2, 2007, we granted a certificate of appealability on whether the district court erred by failing to discuss the merits of Withers’s § 2255 motion or by failing to make findings of fact and conclusions of law. We also ordered a limited remand to the district court to determine whether Withers’s notice of appeal was timely. We stayed consideration of the appeal until the district court’s resolution of the timeliness issue.
On August 6, 2007, the district court decided that Withers’s notice of appeal was untimely. Withers appealed that decision. This court consolidated that appeal with the earlier, previously stayed appeal on whether the district court erred by failing to discuss the merits of Withers’s § 2255 habeas motion or by failing to make findings of fact and conclusions of law.
Accordingly, the issues that we must now decide are whether the district court erred in deciding that Withers’s notice of appeal was untimely, and whether the district court erred by failing to discuss the merits of Withers’s § 2255 habeas motion or by failing to make findings of fact and conclusions of law.
[1061]*1061II.
We review de novo the timeliness of a notice of appeal. Ford v. MCI Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1079 (9th Cir.2005). We review a district court’s denial of a motion to reopen the time for filing an appeal for abuse of discretion. In re Stein, 197 F.3d 421, 424 (9th Cir.1999).
We review de novo the district court’s denial of a § 2255 motion. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003).
III.
A. Withers’s Notice of Appeal Was Timely
Under Federal Rule of Appellate Procedure 4(a)(1)(B), a notice of appeal is timely if it is filed within sixty days after the entry of the order or judgment that is the subject of the appeal. Withers filed his notice of appeal on November 7, 2005— more than sixty days after the July 1, 2005, district court order denying Withers’s § 2255 motion. Federal Rule of Appellate Procedure 4(a)(6), however, allows an appellant to move to reopen the time to file an appeal if the appellant did not receive timely notice of the entry of the order or judgment from which he appeals.
Although Withers did not file a motion to reopen the time for filing an appeal, we conclude that the district court should have construed his pro se notice of appeal as a motion to reopen. For the reasons the Eleventh Circuit describes in Sanders v. United States, we hold that we must construe a pro se appellant’s notice of appeal as a motion to reopen the time for filing an appeal when he alleges that he did not receive timely notice of the entry of the order or judgment from which he seeks to appeal. See Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997). This is consistent with our practice of liberally construing pro se litigants’ filings as the appropriate motion or notice necessary for them to pursue their legal claims on appeal. See Turner v. Calderon, 281 F.3d 851, 864 (9th Cir.2002) (treating a pro se notice of appeal as a request for a certificate of probable cause or appealability); Brannan v. United States, 993 F.2d 709, 710 (9th Cir.1993) (construing a pro se letter as a notice of appeal). Construing Withers’s notice of appeal as both a notice of appeal and a motion to reopen, the question becomes whether the district court erred in denying the motion to reopen.
Under Federal Rule of Appellate Procedure 4(a)(6), “[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered” if:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Rule 4(a)(6) gives a district court discretion in deciding whether to grant a motion to reopen. But that discretion is limited. See Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1070 (9th Cir.2003); Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir.1995). Where a moving party makes an unchallenged assertion that he did not receive timely notice of judgment, and the other Rule 4(a)(6) conditions are not at issue, a district court errs in denying the motion to reopen based solely on the party’s failure to learn independently of the [1062]*1062entry of judgment. Nunley, 52 F.3d at 796, 798.
Here, Withers made an unchallenged assertion that he did not receive timely notice of judgment. Specifically, Withers claimed that he did not receive the district court’s order denying his § 2255 habeas motion until November 4, 2005 — three days before he filed his notice of appeal on November 7, 2005. Additionally, the other Rule 4(a)(6) conditions, (B) and (C), are not at issue. Condition (B) is not at issue because Withers filed his notice to reopen within fourteen days of receiving notice of the district court’s order denying his § 2255 habeas motion. Condition (C) is not at issue because the government does not argue that it was prejudiced. Accordingly, the only question is whether the district court erred in declining to reopen the time to file an appeal even though Withers made an unchallenged assertion that he did not receive the notice of the entry of judgment until November 4, 2005. We conclude that the district court did so err.
By asserting that he did not receive the notice of the entry of judgment until November 4, 2005, Withers alleged, albeit inartfully, that he did not timely file his notice of appeal because of his late receipt of the notice of judgment. The district court did not acknowledge Withers’s asserted late receipt of the notice of judgment, but rather ruled that his notice of appeal was untimely because he was “given notice on July, 1, 2005,” but “did not file his notice of appeal until November 10, 2005.” Consequently, the district court erred by denying the motion to reopen despite Withers’s unchallenged assertion that his late filing was due to his late receipt of the notice of judgment.
Withers’s notice of appeal should have been generously construed as both a notice of appeal and a motion to reopen the time for filing an appeal. Additionally, that motion to reopen should have been granted because Withers asserted that he did not receive a copy of the district court order denying his § 2255 motion until three days before he filed his notice of appeal — an assertion the Government does not contest. Accordingly, the district court erred when it found that Withers’s notice of appeal was untimely.
B. The District Court Erred in Summarily Dismissing Withers’s § 2255 Habeas Motion
Under 28 U.S.C. § 2255, a federal court may vacate, set aside, or correct a federal prisoner’s sentence if the sentence was imposed in violation of the Constitution or laws of the United States. 28 U.S.C. § 2255(a); Davis v. United States, 417 U.S. 333, 344-45, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
When a district court reviews a § 2255 habeas motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). In determining whether a hearing and findings of fact and conclusions of law are required, “[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (citing United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980)). Under this standard, a district court may summarily dismiss3 a [1063]*1063§ 2255 motion only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are “palpably incredible or patently frivolous.” Id.
Here, the district court summarily dismissed Withers’s § 2255 motion, which included eighteen claims for relief. We conclude that sixteen of Withers’s claims were sufficiently frivolous to warrant summary dismissal. Withers’s remaining two claims, however, are supported by non-incredible and non-frivolous allegations which, if true, would warrant habeas relief. Those two claims are: (1) Withers’s claim that the district court violated his Sixth Amendment right to a public trial by closing the courtroom to the public during voir dire; and (2) Withers’s claim that his trial counsel was ineffective for failing to object to the closure of the courtroom. For the reasons set forth below, we conclude that the district court erred in summarily dismissing these two claims.
1. Sixth Amendment Right to a Public Trial Claim
a. The Merits of Withers’s Public Trial Claim
Withers claims that he is entitled to habeas relief because the district court violated his Sixth Amendment right to a public trial. The Sixth Amendment guarantees a defendant the right to a public trial, which includes a right to have the public present during voir dire. U.S. Const, amend. VI; Presley v. Georgia, — U.S. -, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 (2010); Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 511, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).
“The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.... ” Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (internal quotation marks and citations omitted). For that reason, before totally closing any part of a trial to the public,
[t]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
Presley, 130 S.Ct. at 724 (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210); see also Press-Enterprise, 464 U.S. at 510, 104 S.Ct. 819.
A district court violates a defendant’s right to a public trial when it totally closes the courtroom to the public, for a non-trivial duration, without first complying with the four requirements established by the Supreme Court’s Press-Enterprise and Waller decisions. See Waller, 467 U.S. at 48, 104 S.Ct. 2210; United States v. Ivester, 316 F.3d 955, 959 (9th Cir.2003) (holding that trivial closures do not violate the Sixth Amendment); United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir.1992) (holding that partial closures are subject to less stringent requirements). Because such violations are structural errors, they warrant habeas relief without a showing of specific prejudice. See Waller, 467 U.S. at 49-50, 104 S.Ct. 2210.
[1064]*1064Withers claims that the district court violated his right to a public trial by closing the courtroom just before voir dire began. The record plainly supports this claim. The transcript shows that the district court closed the courtroom by ordering the public out before conducting voir dire:
We’re going to take a recess to bring down the jury panel. All you people out there are going to have to be out of the courtroom. We have to bring in a very big panel of prospective jurors and we need the entire courtroom, so all of you out.
Nothing in the record indicates that this closure was for a trivial duration, or that the district court complied with the Press-Enterprise/Waller requirements. Therefore, Withers’s claim that the district court violated his Sixth Amendment right to a public trial by closing the courtroom during voir dire is not palpably incredible or patently frivolous.
Withers’s entitlement to relief on his public trial claim, however, will depend on whether the courtroom closure lasted for more than a trivial duration and whether the district court complied with the Press-Enterprise/Waller requirements. Although there is nothing in the record before us indicating that the closure lasted only a trivial duration, or that the district court complied with the Press-EnterprisefWaller requirements, neither is the record before us sufficient to conclude that the closure lasted longer than a trivial duration or that the district court did not comply with the Press-EnterpriselWoiler requirements. We therefore must remand for the district court to determine these facts, unless the district court’s summary dismissal was warranted because Withers proeedurally defaulted this claim.
b. Potential Procedural Default of Withers’s Public Trial Claim
The government argues that Withers proeedurally defaulted his public trial claim by failing to raise it on direct review. Thus, he is not entitled to habeas relief on this claim unless he can overcome the procedural default by showing cause and prejudice. See, e.g., Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Withers, however, had no obligation to overcome procedural default in his motion. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir.2005) (explaining that “[procedural default is an affirmative defense”). Because the district court did not order the government to respond to Withers’s motion, the government never raised an affirmative procedural bar defense in the district court. Further, the district court did not give notice of procedural default on its own initiative. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998). Withers therefore had no opportunity in the district court to establish cause and prejudice excusing his default.
Moreover, even if Withers were obligated to negate procedural default in his motion by alleging cause and prejudice, he has made credible non-frivolous claims that he can do so.
i. Withers made a credible, non-frivolous claim that he can show cause
Withers claimed that his appellate counsel was ineffective — a claim that, if successful, would satisfy the cause requirement that is necessary to overcome procedural default. See Moormann v. Schriro, 426 F.3d 1044, 1059 (9th Cir.2005). To establish ineffective assistance of counsel, Withers must show that his “counsel’s representation fell below an objective standard of reasonableness,” and [1065]*1065that there is a “reasonable probability” that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Turner, 281 F.3d at 872 (explaining that the Strickland standard applies to ineffective assistance of appellate counsel).
Assuming that Withers’s public trial claim was viable — as we must because the record contains no indication that the closure of the courtroom satisfied constitutional requirements — appellate counsel’s failure to raise it likely fell below an objective standard of reasonableness. This conclusion accords with the First Circuit’s analysis of this issue. See Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007) (“Owens’ attorneys’ failure to notice or object to the closure of his trial may show that their performance fell below ‘an objective standard of reasonableness.’ ”). Because Withers’s public trial claim is not palpably incredible or patently frivolous, neither is his claim that his appellate counsel performed deficiently by failing to raise it on direct review.
Withers’s claim that there is a “reasonable probability” that his appellate counsel’s failure to raise this claim prejudiced him is similarly not palpably incredible or patently frivolous. Again assuming that his public trial claim was viable, his counsel’s failure to raise it almost certainly prejudiced him: Because violation of the public trial right is a structural error, Withers would have been entitled to automatic reversal of his conviction and a new trial had he established a violation. See Waller, 467 U.S. at 49-50, 104 S.Ct. 2210; Campbell v. Rice, 408 F.3d 1166, 1171-1172 (9th Cir.2005) (noting that violation of the right to a public trial is one of those rare constitutional errors that requires automatic reversal because it amounts to a structural defect).
Thus, Withers made a credible, non-frivolous claim that his appellate counsel provided ineffective assistance of counsel.4 Withers therefore presented a credible, non-frivolous claim of cause necessary to overcome any procedural default.
ii. Withers made a credible, non-frivolous claim that he can show prejudice
Withers has also made a credible, non-frivolous claim of prejudice — the second requirement for overcoming procedural default. Withers can establish the prejudice necessary to overcome procedural default if the error of which he complains “infect[ed] his entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The alleged closing of Withers’s trial would have infected his entire trial with such error. Indeed, implicit in the recognition that trial closures are structural errors is the recognition that such errors “affect the framework in which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also Campbell, 408 F.3d at [1066]*10661171-1172. If Withers establishes a violation of his right to a public trial, that structural error would likely satisfy the prejudice showing.
Hi Withers made credible, non-frivolous claims that he can overcome procedural default
For the reasons stated above, Withers made a credible, non-frivolous claim of ineffective assistance of counsel, which could establish the cause showing necessary to overcome procedural default. Likewise, because Withers’s underlying non-frivolous public trial claim alleges structural error, he can also likely establish prejudice sufficient to overcome procedural default. Therefore, even if Withers bore the burden of making a credible, non-frivolous claim that he could overcome procedural default in his motion, he has met that burden. Accordingly, the district court could not have properly based its summary dismissal on procedural default.
Because his public trial claim was not palpably incredible or patently frivolous, and because it was not clear on the face of his motion that a procedural default barred relief, the district court erred in summarily dismissing this claim without ordering the government to file a response and without issuing findings of fact and conclusions of law.
iv. Remand of these issues is appropriate
We cannot resolve this issue without further evidentiary development, however. Resolution of this procedural default issue depends on whether Withers’s appellate counsel was ineffective, which in turn depends on whether Withers’s public trial claim was viable. Because we cannot assess the viability of that claim without knowing for how long the trial judge closed the courtroom, or whether he complied with the Press-EnterprisefWaller requirements, we likewise cannot determine whether appellate counsel was ineffective. Remand for the district court to develop the underlying facts is therefore appropriate. See Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[T]he district court [is] the forum best suited to developing the facts necessary to determining the adequacy of representation.”).
2. Ineffective Assistance of Trial Counsel Claim
As an independent ground for habeas relief, Withers claims that his trial counsel was ineffective for failing to object to the closure of the courtroom during voir dire. Ineffective assistance of trial counsel is grounds for habeas relief, and such a claim need not be raised on direct appeal to preserve it for collateral attack. Massaro, 538 U.S. at 504, 123 S.Ct. 1690. Thus, it is of no import that Withers’s appellate counsel did not raise this issue on direct appeal.
To establish ineffective assistance of counsel, Withers must show that his “counsel’s representation fell below an objective standard of reasonableness,” and that there is a “reasonable probability” that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052.
a. Withers made a credible, non-frivolous claim that his trial counsel’s performance fell below an objective standard of reasonableness
Withers claims that his trial counsel’s failure to object to the closure of his trial fell below an objective standard of reasonableness. On the record before us, we conclude that this claim is not frivolous or incredible, particularly because the right to a public trial is critical to ensuring a fair trial. See Waller, 467 U.S. at 46, 104 S.Ct. 2210 (explaining that the right to a [1067]*1067public trial helps ensure a fair trial); Herring v. New York, 422 U.S. 853, 856-57, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (explaining that the Sixth Amendment’s guarantee of the right to a public trial is a fundamental right). This conclusion is in accord with decisions of the First and Sixth Circuits. See Johnson v. Sherry, 586 F.3d 439, 446 (6th Cir.2009) (holding that “an evidentiary hearing is warranted to determine if trial counsel’s failure to object to the closure constitutes deficient performance”); Owens, 483 F.3d at 63 (“Owens’ attorneys’ failure to notice or object to the closure of his trial may show that their performance fell below ‘an objective standard of reasonableness.’ ”).
b. Withers made a credible, non-frivolous claim that he was prejudiced by his trial counsel’s deficient performance
Withers claims that he can establish that his trial counsel’s deficient performance caused him prejudice because it resulted in a structural error, which gives rise to a presumption of prejudice. The Ninth Circuit has not yet decided whether a trial counsel’s failure to object to a structural error is presumptively prejudicial for purposes of the Strickland ineffective assistance of counsel inquiry.
We do not decide that question here, however, because the procedural posture of this case limits our inquiry to whether such a claim of presumptive prejudice is frivolous.5 It plainly is not. At least three circuits have concluded that prejudice can be presumed where counsel’s deficient performance results in a structural error. See Johnson, 586 F.3d at 447 (“Because the right to a public trial is a structural guarantee, if the closure were unjustified or broader than necessary, prejudice would be presumed.”); Owens, 483 F.3d at 64-65 (holding that, because it “is impossible to determine whether a structural error is prejudicial,” prejudice can be presumed for purposes of the Strickland analysis where counsel failed to object to a structural error”); McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir.1998) (holding that “when counsel’s deficient performance causes a structural error, we will presume prejudice under Strickland ”); but see Purvis v. Crosby, 451 F.3d 734, 742 (11th Cir.2006) (requiring a showing of actual prejudice where counsel failed to object to a courtroom closure); Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir.2006) (declining to hold that “a structural error alone is sufficient to warrant a presumption of prejudice in the ineffective assistance of counsel context”). Indeed, we [1068]*1068have strongly suggested the same. See Styers v. Schriro, 547 F.3d 1026, 1030 n. 5 (9th Cir.2008) (noting that “no ... additional or separate showing of prejudice would appear necessary” where counsel’s deficiency resulted in a structural error).
c. Withers made a credible, non-frivolous ineffective assistance of trial counsel claim
In sum, Withers made a credible, non-frivolous claim that his trial counsel’s performance fell below objective standards of reasonableness and caused a structural error that gave rise to a presumption of prejudice. Because Withers made a credible, non-frivolous claim for habeas relief based on ineffective assistance of trial counsel, the district court erred in summarily dismissing this claim without ordering the government to file a response and ■without issuing findings of fact and conclusions of law.
8. The district court must consider Withers’s non-frivolous claims for habeas relief
Withers made credible, non-frivolous public trial and ineffective assistance of trial counsel claims. Accordingly, the district court erred in failing to order the government to file an answer to Withers’s habeas motion. See Rule 4(b), Rules Governing § 2255 Proceedings for the United Stated District Courts. For that same reason, the district court erred by summarily dismissing Withers’s § 2255 motion without making findings of fact and conclusions of law. See 28 U.S.C. § 2255(b). Therefore, we remand and direct the district court to: (1) order the government to file an answer to Withers’s habeas motion, (2) conduct an evidentiary hearing if warranted, and (3) issue findings of fact and conclusions of law on the non-frivolous claims addressed in this opinion.
C. Reassignment
We direct the Clerk of the United States District Court for the Central District of California to reassign this case to a different judge. Reassignment is appropriate in unusual circumstances. See, e.g., D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040-41 (9th Cir.2008). In determining whether there are unusual circumstances, this court considers:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Id. at 1041 (internal citation omitted).
This is the fourth remand in this case. On each of the previous three remands, the district judge erroneously dismissed Withers’s § 2255 motion or notice of appeal without discussion. The issues in Withers’s motion that may state a claim for relief turn on the manner in which the district judge conducted voir dire. The government does not oppose reassignment. Given the aggregate weight of these circumstances, we conclude that unusual circumstances make reassignment of this case appropriate.
IV.
Withers’s notice of appeal was timely. The allegations in Withers’s § 2255 motion state credible, non-frivolous public trial and ineffective assistance of counsel claims upon which relief could be granted. For these reasons, we remand this case for appropriate fact finding, responsive brief[1069]*1069ing, and, if warranted, an evidentiary hearing. Because of the unusual circumstances in this ease, we direct the Clerk of the United States District Court for the Central District of California to reassign this case to a different judge.
REVERSED, REMANDED, AND REASSIGNED.