                  FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 11-16438
          Plaintiff-Appellee,
                                       D.C. Nos.
             v.                   2:10-CV-02934-EJG
                                  2:05-CR-00306-EJG
SUNDEEP DHARNI,
       Defendant-Appellant.               ORDER


      Appeal from the United States District Court
         for the Eastern District of California
      Edward J. Garcia, District Judge, Presiding

               Argued and Submitted
    September 10, 2013—San Francisco, California

                   Filed July 2, 2014

  Before: J. Clifford Wallace, Raymond C. Fisher, and
           Marsha S. Berzon, Circuit Judges.

                        Order;
               Dissent by Judge Wallace
2                  UNITED STATES V. DHARNI

                           SUMMARY*


                          Habeas Corpus

     The panel granted a petition for panel rehearing, vacated
its previous opinion, denied a petition for rehearing en banc
as moot, and issued a limited remand in a case in which the
defendant filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 based on the closure
of the courtroom during voir dire and ineffective assistance
of counsel.

    The panel wrote that it did not decide the case with a full
understanding of its procedural posture. The panel granted
the defendant’s petition for panel rehearing because the
defendant suffered possible prejudice from the combination
of the government’s change in position and the misleading
language of the panel’s previous order granting the
defendant’s motion for bail pending appeal.

    The panel remanded to the district court, given the
contested nature of the facts and the paucity of the record.
The panel instructed that the scope of the remand is limited
to: 1) allowing the parties to supplement the record with
evidence concerning the scope of the courtroom closure and
2) permitting the district court to make findings of fact on
whether spectators had an opportunity to reenter the
courtroom during voir dire, including whether seats in fact
opened up and, if so, whether spectators would have been
aware of the vacancies, and whether the district court and

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. DHARNI                      3

court officials would have allowed the spectators to enter
during voir dire.

    Dissenting, Judge Wallace wrote that the original panel
decision affirming the district court was correct, and did not
prejudice the defendant. He wrote that the majority’s order
needlessly delays resolution of the defendant’s habeas
petition.



                           ORDER

    Appellant Sundeep Dharni’s petition for panel rehearing
is GRANTED. The previous opinion, United States v.
Dharni, 738 F.3d 1186 (9th Cir. 2014), is VACATED. The
petition for rehearing en banc is DENIED AS MOOT.

                               I.

    Our resolution of this case was premised on the
conclusion that “the district court judge specifically
authorized family members and spectators to reenter when
seats were available.” Dharni, 738 F.3d at 1189. It was on
that understanding that we held that “the insufficient seating
for spectators and family members for a limited period of
time of uncertain duration did not violate Dharni’s rights.”
Id. In his petition, Dharni explains that the government’s
position before the district court was actually that the closure
was for the entire voir dire period, not only until seats opened
up, and that the district court’s decision rested on the same
understanding. See Appellant’s Pet. for Reh’g and for Reh’g
En Banc, at 4–5, Feb. 14, 2014, ECF No. 48. The
government does not contest those observations. See
4                UNITED STATES V. DHARNI

Appellee’s Br. in Opp’n to Appellant’s Pet. for Reh’g and for
Reh’g En Banc, at 10 n.1, Mar. 19, 2014, ECF No. 53.
Because the government never asserted the premise on which
we decided this case until the filing of its Answering Brief on
appeal, Dharni did not rebut it by making a record before the
district court regarding the scope of the courtroom closure.
See 28 U.S.C. § 2255(b). Our opinion relied on the absence
of such a record. See Dharni, 738 F.3d at 1189.

    Dharni did not bring the government’s switch of positions
and its possible prejudice to Dharni to our attention until he
filed this petition, because the misleading language of our
previous order granting his motion for bail pending appeal
under Federal Rule of Appellate Procedure 23(b) reasonably
led him to believe that we had commanded him not to file a
reply brief. See Order, Mar. 7, 2013, ECF No. 24. We
therefore did not decide this case with a full understanding of
its procedural posture. See Fed. R. App. P. 40(a)(2). Since
Dharni suffered possible prejudice from the combination of
the government’s change in position and the misleading
language of our previous order, we grant his petition for panel
rehearing.

    Given the contested nature of the facts in this case and the
paucity of the record, we REMAND the matter to the district
court. See, e.g., Howard v. Clark, 608 F.3d 563, 565 (9th Cir.
2010). The scope of that remand shall be limited to:
1) allowing the parties to supplement the record with
evidence concerning the scope of the courtroom closure and
2) permitting the district court to make findings of fact on
whether spectators had an opportunity to reenter the
courtroom during voir dire, including whether seats in fact
opened up and, if so, whether spectators would have been
aware of the vacancies, and whether the district court and
                 UNITED STATES V. DHARNI                      5

court officials would have allowed the spectators to enter
during voir dire.

                              II.

    Although one might not realize it from reading the
extensive dissent, we are deciding nothing more at this
juncture than that a factual premise important to our original
holding may not be accurate, and that we should find out
whether it is. Assessing the potential triviality of a closure
that spanned the entirety of voir dire would be a far different,
and considerably more difficult, inquiry than the one we
undertook in our now-vacated opinion, where we assumed a
temporary closure. “Where ‘the courtroom was totally closed
to the general public at some critical juncture in the
proceedings,’” we deem the closure “substantial,” not trivial.
United States v. Rivera, 682 F.3d 1224, 1231 (9th Cir. 2012)
(quoting Bruan v. Powell, 227 F.3d 908, 917 (7th Cir. 2000)).
Because “[t]he process of juror selection is itself a matter of
importance,” Press-Enter. Co. v. Superior Court of Calif.,
Riverside Cnty., 464 U.S. 501, 505 (1984), it is far from self-
evident that the Sixth Amendment would tolerate closure of
the entirety of voir dire.

    The dissent’s citations, see Dissent 19–20, certainly do
not compel the conclusion that the Sixth Amendment
tolerates closure of the entirety of voir dire. United States v.
Withers did not assume that a judge had closed the entirety of
voir dire upon ordering spectators to leave at the beginning of
jury selection; it remanded for further factual development of
the claim, as we do today. 638 F.3d 1055, 1064, 1068–69
(9th Cir. 2010). And the dissent’s remaining citations are
neither binding nor persuasive. United States v. Santos,
501 F. App’x 630 (9th Cir. 2012), is an unpublished
6                 UNITED STATES V. DHARNI

memorandum disposition, and so not precedential. See 9th
Cir. R. 36–3(a). Gibbons v. Savage, 555 F.3d 112 (2d Cir.
2009), emanates from another circuit. And the closure there
was not for the entirety of voir dire, as the dissent contends,
but only for an afternoon, which was largely occupied by
“private interviews of individual jurors as to their reasons for
inability to serve . . . .” Id. at 121; see also id. at 114. “The
next morning, when voir dire resumed, Gibbons’s mother was
allowed to watch the proceedings.” Id. at 121 (emphasis
added).

     Moreover, although the dissent suggests otherwise,
defendant’s lack of opportunity to file a reply brief in this
court was a matter brought to our attention only on rehearing.
It is not at all unusual for appellants to fail to file reply briefs,
which are optional, see Fed. R. App. P. 28(c), and so there
was no reason to inquire into why that happened. And again,
even if one member of the panel did realize that — which
would have required reading with great care the briefing
schedule contained in a collateral order, the order granting
bail — the other two, understandably, did not.

    Although Dharni does bear the burden of proof, see
Varghese v. Uribe, 736 F.3d 817, 823 (9th Cir. 2013)
(28 U.S.C. § 2254 petition), we cannot hold against him his
failure to develop a record as to whether the closure was for
the entire voir dire. Dharni so asserted throughout the district
court § 2255 proceedings, without any objection from the
government. The government thus acceded to Dharni’s
version of events before the district court, and directed its
arguments accordingly. The dissent maintains that Dharni
squandered his “opportunity to present precisely the type of
evidence [we] say[] could vindicate his claim.” Dissent 16.
But, as a practical matter, Dharni had no reason to retread
                   UNITED STATES V. DHARNI                             7

common ground by proving a factual point the government
itself accepted.1

    Beyond those points, we have no reason to engage with
the dissent at this juncture. We may find out after the limited
remand that our original factual premise was true, in which
case we could simply reinstate our previous opinion and, as
we did in that opinion, decline to address as unnecessary to
our result the various questions concerning the impact on
habeas corpus of structural errors.

    By declining unnecessarily to address questions not
presently before us, we do not, of course, mean to signal any
agreement with the dissent’s analysis. We caution that the
analysis should be regarded for precedential purposes as
exactly what it is — a dissent, to which only one judge on a
three-judge panel ascribes.

                                  III.

    We VACATE submission of this case, and retain
jurisdiction over this appeal pending the district court’s
disposition of this limited remand. The parties shall notify
the court within seven days of entry of the district court’s
order. We shall determine at that time whether the case
requires supplemental briefing or can be resubmitted on the

  1
    The government’s Opposition to Dharni’s motion assumed that the
public had been excluded. It did not challenge the factual predicate of
Dharni’s claim, which it described as “the [district] court excluded
[Dharni’s] family members from the court during jury selection.” The
government described the district court’s removal of the public from the
courtroom as an “exclusion order,” and later stated that “[t]he exclusion
of family members from jury selection did not affect the composition of
the record or require inquiries about matters placed into evidence.”
8                UNITED STATES V. DHARNI

existing briefs and arguments. See, e.g., Espinosa v. United
Student Aid Funds, Inc., 530 F.3d 895, 899 (9th Cir. 2008)
(per curiam); Eyak Native Village v. Daley, 375 F.3d 1218,
1219 (9th Cir. 2004) (en banc) (order).

   Petition for panel rehearing GRANTED; previous
opinion VACATED; petition for rehearing en banc DENIED
AS MOOT; SUBMISSION VACATED; REMANDED
FOR A LIMITED PURPOSE.



WALLACE, Circuit Judge, dissenting:

    I dissent from the majority’s order granting the petition
for panel rehearing, vacating our panel decision, vacating
submission, and remanding to the district court. Our original
panel decision was correct, and did not prejudice Dharni in
any way. The majority’s erroneous order needlessly delays
resolution of Dharni’s habeas petition, seven years after
Dharni’s criminal trial and conviction.

    I conclude that the majority’s order is incorrect for two
reasons. First, even though the government did not
specifically argue before the district court in its opposition to
Dharni’s habeas petition about the extent of the courtroom
closure during voir dire, Dharni had the opportunity to make
a record regarding the scope of the closure. Indeed, he did
argue before the district court that the closure was for the
entirety of voir dire, although he provided no record evidence
to support that contention. Second, the government did not
switch its legal position, but consistently argued the only
legally relevant point: that the courtroom closure was trivial.
                  UNITED STATES V. DHARNI                         9

     Additionally, although the issue may not yet be properly
before this court, any remand should be unnecessary. Even if
the courtroom closure was not trivial and violated Dharni’s
Sixth Amendment rights, we should deny Dharni’s petition
because he has not claimed, much less established, that he
was actually prejudiced by the closure. This correct statement
of law is currently subject to intracircuit dispute. If the district
court on remand finds that the closure was for the entirety of
voir dire, that spectators had no opportunity to reenter the
courtroom, and ultimately that the closure was not trivial, we
could only grant Dharni habeas relief subsequent to an en
banc decision resolving the dispute.

                                 I.

    To understand the majority’s errors, a full discussion of
the procedural posture of this case is necessary. Before voir
dire began in Dharni’s criminal trial for violations of
18 U.S.C. §§ 844 and 1341, in early July 2007, the district
court judge stated he “anticipate[d] some problem because of
the 4th of July holiday and possible hardship excuses.”
Accordingly, he expanded the number of prospective jurors.
On the morning the trial began, the judge stated that when

        the jury comes up, I’m going to ask all family
        members to go out in the hall. We need every
        seat in the audience section of the courtroom
        as we called in extra jurors because of the
        vacation problem. So that during jury
        selection, all of the family and friends of the
        defendant and any other spectators that are out
        there will wait out in the hall during jury
        selection until seats open up [emphasis
        added].
10               UNITED STATES V. DHARNI

    Dharni’s lawyer did not object to this statement. A few
moments later, the judge asked “the family of the defendant
and other spectators [to] please leave the courtroom.” After
the spectators had presumably left, the judge welcomed the
prospective jury and stated that he “called in extra jurors
today for jury selection,” and that the courtroom did not
“have much audience room.”

     During jury selection, the judge excused five potential
jurors based on peremptory challenges, and then took a
fifteen-minute recess. When selection reconvened, another
nine potential jurors were excused because of challenges. In
total, fourteen potential jurors were excused before the jury
and the two alternates were empanelled. At no point during
selection did Dharni’s attorney object to any absence of the
family members or other spectators.

    Dharni was convicted. He appealed the conviction to this
court, contending that the district court improperly admitted
evidence, limited cross-examination, and imposed an
improper sentence. We affirmed his conviction. United States
v. Dharni, 324 F. App’x 554 (9th Cir. 2009).

    On October 29, 2010, about a year and a half after our
affirmance, Dharni filed a pro se petition for habeas relief
under 28 U.S.C. § 2255. Dharni claimed three relevant errors
in his habeas petition, for the first time. He argued he was
denied his right to a public trial because of the courtroom
closure, that his trial counsel committed ineffective assistance
of counsel by failing to object to the closure, and that his
appellate counsel was ineffective for failing to raise the
courtroom closure on direct appeal.
                  UNITED STATES V. DHARNI                        11

    According to Dharni’s petition, the closure of the
courtroom during voir dire violated his Sixth Amendment
rights. Dharni argued that he did not need to show that the
closure prejudiced his case at trial, because unjustified
closures of the courtroom are “structural errors.” He argued
that such “structural errors” are per se prejudicial. He
specifically stated that had his appellate attorney raised the
issue on direct appeal “there is an absolute degree of certainty
. . . that Petitioner would have prevailed in having his
conviction over turned [sic] or issued a new trial.” Dharni
offered no evidence that he was prejudiced by the courtroom
closure.

    In response to Dharni’s petition, the government argued
that he had waived his right of review of the courtroom
closure by failing to object to the closure at trial, or to raise it
on direct appeal. The government argued that this waiver
could not be overcome based on allegedly ineffective
assistance of counsel, because Dharni’s lawyers had not acted
objectively unreasonably or caused him actual prejudice, and
that courtroom closures are not structural errors requiring
automatic reversal. The government argued that the
“exclusion of the public during questioning of jurors . . .
[was] so trivial as to not implicate the defendant’s Sixth
Amendment rights.” Finally, the government argued that the
Supreme Court’s decision applying the Sixth Amendment
right to a public trial to voir dire, Presley v. Georgia,
558 U.S. 209 (2010), was not retroactive before 2010 and
therefore could not disturb Dharni’s conviction.

    In reply, Dharni argued he had not waived his right of
review regarding the closure by failing to object or raise the
issue on appeal, because the error was structural and thus
automatically reviewable based on ineffective assistance of
12               UNITED STATES V. DHARNI

counsel, regardless of whether Dharni showed that his
lawyers’ failures to object or raise the closure had prejudiced
him. Dharni argued that Presley did apply to his criminal trial
because the Supreme Court specifically stated that its holding
was “well settled” under its prior precedent. Finally, Dharni
argued that the courtroom closure was not trivial. Dharni
offered evidence about the size of the courtroom where his
trial took place, and repeatedly argued that the judge’s request
that spectators leave the courtroom in his case “involved a
total closure,” subject to a “more rigorous” review before
exclusion.

    The district court denied Dharni’s habeas petition. The
court held that as of Dharni’s trial date, “it was an open
question if the Sixth Amendment right to a public trial
extended to jury selection and voir dire.” Regardless, the
court determined that the request that spectators, including
family members, leave the courtroom temporarily was at
most a trivial closure that did not implicate the Sixth
Amendment values behind the right to a public trial. Because
any closure of the courtroom during jury selection was trivial,
the court concluded, Dharni suffered no prejudice from his
counsel’s failure to object or appeal, which doomed his
ineffective assistance of counsel claim.

     Dharni appealed to this court. A motions panel granted a
certificate of appealability for two issues: “(1) whether the
trial court’s exclusion of appellant’s family and all other
spectators during voir dire violated his Sixth Amendment
right to a public trial, including whether appellant has
procedurally defaulted this claim; and (2) whether appellant’s
counsel rendered ineffective assistance by failing to raise this
Sixth Amendment challenge at trial or on direct appeal.” In
that order, the motions panel also appointed Dharni counsel
                 UNITED STATES V. DHARNI                    13

to assist him in his appeal, and established the following
briefing schedule: “[t]he opening brief is due October 31,
2012; the answering brief is due November 30, 2012; the
optional reply brief is due within 14 days after service of the
answering brief.”

    After an extension, Dharni filed his opening brief on
November 15, 2012. Dharni argued once again that the
courtroom closure violated his Sixth Amendment rights, that
courtroom closures are structural errors meriting automatic
reversal, and that he presumptively suffered prejudice from
the closure.

   On February 7, 2013, three months after Dharni filed his
opening brief, Dharni moved for bail pending appeal. The
government opposed the grant of bail on February 20, 2013,
and Dharni replied on February 27, 2013. On February 27,
2013, the government submitted its answering brief to
Dharni’s merits appeal.

    On March 7, 2013, a motions panel, composed of
different judges than those who heard the certificate of
appealability, granted Dharni’s motion for bail pending
appeal. That motions panel stated that Dharni had shown that
he was not likely to flee or pose a danger to anyone’s safety,
and that he had “a high probability of success such that this
is an extraordinary case.” In its order, the motions panel
stated that “[u]pon the filing of the [government’s] answering
brief [submitted the week before], principal briefing will be
completed.”

   In the government’s answering brief on the merits,
submitted February 27, 2013 and filed by this court on March
7, 2013, the government argued that “[t]he record
14               UNITED STATES V. DHARNI

demonstrates that it was not the court’s intention to close the
courtroom during the entirety of voir dire,” and more broadly
that the courtroom closure was trivial. The government also
argued that courtroom closures are not structural errors
meriting automatic reversal, and that Dharni had never shown
that he was prejudiced by either the courtroom closure or his
trial and appellate counsels’ failure to object or raise the
closure. Dharni did not file any reply brief on the merits.

    We affirmed the district court’s denial of Dharni’s
petition. United States v. Dharni, 738 F.3d 1186 (9th Cir.
2014). We held that the courtroom closure was trivial,
because it did not infringe upon the values behind the Sixth
Amendment right to a public trial. Id. at 1189. We held that
because the district judge “specifically stated that spectators
should ‘wait out in the hall during jury selection until seats
open up, [s]pectators were therefore free to reenter the
courtroom to observe the voir dire as jurors were excused,”
and that “[f]ive spectators could have reentered the courtroom
for the remainder of voir dire after the [court’s] recess.” Id.
(emphasis added). We further stated that “Dharni has offered
no evidence, nor have we found any evidence in the record,
that court personnel prevented the spectators from reentering
the courtroom.” Id. We continued that because “the district
court judge specifically authorized family members and
spectators to reenter when seats were available, the
insufficient seating for spectators and family members for a
limited period of time of uncertain duration did not violate
Dharni’s rights.” Id. Because the closure was trivial, we also
rejected Dharni’s claims of ineffective assistance of counsel.
Id. at 1189–90.

    Now Dharni petitions for panel rehearing and en banc
review, asserting that the government did not argue before the
                 UNITED STATES V. DHARNI                     15

district court that the judge intended for family members to
return to the courtroom on their own as they observed
prospective jurors leaving. According to Dharni, this
argument was raised for the first time on appeal before us in
the government’s answering brief, and therefore was
forfeited.

     The majority agrees. According to the majority, because
of the “government’s switch of positions,” Dharni never had
the opportunity to develop facts that showed the courtroom
closure “was for the entire voir dire period, not only until
seats opened up.” Majority Order at 3–4. The majority asserts
that Dharni could not point out the government’s allegedly
different positions because of “misleading language” in our
previous order regarding his motion for bail pending appeal.
Id. at 4. Thus, according to the majority, we must remand this
case to the district court to determine the scope of the
courtroom closure, and whether spectators were aware and
had an actual opportunity to reenter the courtroom during voir
dire. Id. at 4–15.

    As an initial matter, I agree with the majority that the
language the motions panel used in its order granting Dharni
bail was misleading and improper. It is standard practice for
our court to include language instructing the appellant that the
optional reply brief is due within 14 days after the filing of
the answering brief. The motions panel failed to include that
language, stating instead that “[u]pon the filing of the
[government’s] answering brief [submitted the week before],
principal briefing will be completed.” That was misleading,
and could reasonably be read to preclude the filing of any
reply brief.
16               UNITED STATES V. DHARNI

    But I nonetheless dissent. Dharni already had an
opportunity to present precisely the type of evidence the
majority says could vindicate his claim, and he failed to do
so. The government has not switched its relevant legal
position, so we can still affirm the district court’s denial of
the habeas petition. Additionally, under a correct
understanding of the law of procedural default, we do not
need to remand this case, because even if Dharni could show
that the closure was not trivial, he has not claimed that the
closure prejudiced him.

                               II.

     According to the majority, it vacates and remands our
panel decision for “nothing more . . . than that a factual
premise important to our original holding may not be
accurate.” Majority Order at 5. But Dharni bore the burden of
proof in this action for habeas relief. Varghese v. Uribe,
736 F.3d 817, 823 (9th Cir. 2013). Dharni knew he should
have submitted evidence about the scope of the courtroom
closure and whether spectators had an opportunity to reenter
the courtroom during voir dire, including whether seats
opened up and whether court personnel would have allowed
the spectators to reenter, the precise evidence the majority
seeks on remand. Majority Order at 4–5. The motions panel’s
erroneous suggestion that briefing was completed with the
filing of the government’s answering brief had nothing to do
with Dharni’s earlier failure before the district court to submit
sufficient evidence to support his argument that the closure
was not trivial.

    The government argued in its opposition to Dharni’s
habeas petition before the district court that the courtroom
closure was trivial. We and our sister circuits have held that
                 UNITED STATES V. DHARNI                    17

closures are trivial based on a number of considerations.
Some of those considerations include the size of the
courtroom and whether the district court had specifically
authorized spectators to return to available seating, United
States v. Shyrock, 342 F.3d 948, 974–75 (9th Cir. 2003)
(“[s]pecifically, the district court always allowed Appellants’
family members and the general public to use the available
seating”), and whether court personnel prevented spectators
from returning. Owens v. United States, 483 F.3d 48, 61 (1st
Cir. 2007) (“[t]wo members of Owens family [sic] submitted
affidavits stating that uniformed officers prevented [family
members] from entering the courtroom during the first day of
jury selection in Owens’ trial”).

    Thus, when Dharni filed his reply brief before the district
court, he knew and had the opportunity to submit evidence
about the size of the courtroom and whether court personnel
prevented spectators from entering the courtroom. He brought
as much evidence as he could about the size of the courtroom,
attaching two drawings of the courtroom to his reply brief. He
does not seem to have offered any evidence that court
personnel prevented spectators from returning. Nor did he
present any evidence that the district court’s specific
authorization that spectators could reenter when seats opened
up was misunderstood to mean that spectators could not
reenter when seats opened up.

    Dharni knew from our case law that the evidence the
majority seeks on remand was critical to his claim that the
closure was not trivial. Indeed, he actually provided
argument, though not evidence, in his reply brief about the
scope of the courtroom closure, arguing that the closure was
“complete.” He also cited the First Circuit’s decision in
Owens, which stated that whether spectators were prevented
18                UNITED STATES V. DHARNI

from returning to the courtroom is an important factor in
determining that the closure was not trivial. His failure to
convince the district court that the closure in his case was not
trivial is not the result of the “government’s switch of
positions.” Majority Order at 4. That failure stems from
Dharni’s own inability to provide sufficient evidence about
the closure. If the majority disagrees with the district court’s
conclusion that the closure was trivial, it should so hold on
the basis of the evidence Dharni has already submitted.
Instead, the majority needlessly gives Dharni another bite of
the apple. The evidence Dharni failed to submit about the size
of the courtroom and whether court personnel prevented
spectators from entering the courtroom was not “common
ground” that “the government itself accepted.” Majority
Order at 6–7.

    There is no reason to remand this case. Dharni could have
submitted evidence about triviality, and about the precise
issues on which the majority remands. His failure to do so
before the district court means he suffered no prejudice from
the motions panel’s misleading suggestion regarding his reply
brief.

    Further, the majority states that it “did not decide this case
with a full understanding of its procedural posture.” Majority
Order at 4, citing Fed. R. App. P. 40(a)(2). I admit that I am
confused by this statement. The entire procedural posture of
this case, described above, was available when we issued our
opinion, either through our court’s electronic database and
other resources, or through a careful reading of the excerpts
of record. I, for one, did decide this case with a full
understanding of the procedural posture, and did not
“overlook[] or misapprehend[]” any point of law or fact. Fed.
R. App. P. 40(a)(2).
                    UNITED STATES V. DHARNI                            19

                                   III.

    The majority errs in remanding this case for another
reason. The majority is technically correct that the
government presented a slightly different argument in its
appellate brief from its argument before the district court.
Before that court, the government did not argue that the
district court judge intended for spectators to be able to return
to the courtroom once seats opened. That means that the
government did not argue before the district court that closure
was “partial” rather than “total.” Before us, the government
argued that “[t]he record demonstrates that it was not the
court’s intention to close the courtroom during the entirety of
voir dire,” suggesting that the courtroom closure may have
been partial, rather than for the entirety of voir dire.

    However, this “shift” is irrelevant. The legal question we
reviewed was not whether the court intended to close the
courtroom for all of the hearing. The legal question we
reviewed was whether the closure was trivial. A closure can
be “total” but still trivial. See, e.g., United States v. Withers,
638 F.3d 1055, 1063–64 (9th Cir. 2010) (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,” and holding that when the judge stated “all you
people out there are going to have to be out of the courtroom”
for the entirety of voir dire, the closure may still be trivial)
(emphasis added)1; United States v. Santos, 501 F. App’x


 1
   The majority misinterprets Withers in its discussion. Majority Order at
5. According to the majority, “it is far from self-evident that the Sixth
Amendment would tolerate closure of the entirety of voir dire.” Id. at 5
But that is precisely what we countenanced in Withers. Our legal analysis
there was that “[a] district court violates a defendant’s right to a public
20                  UNITED STATES V. DHARNI

630, 633 (9th Cir. 2012) (a closure for all of voir dire because
of the size of the courtroom was still trivial); Gibbons v.
Savage, 555 F.3d 112, 121 (2d Cir. 2009) (a closure for the
entirety of voir dire was still trivial).

    The government has never changed its position that the
closure was trivial. It argued that the closure was trivial
before the district court. Likewise, it argued that the closure
was trivial in its appellate brief. Because the government has
consistently made the same dispositive legal argument, it has
not meaningfully shifted its position. We could consider the
government’s slightly different argument that the district
judge did not intend for the courtroom to be closed through
the entirety of voir dire, despite its not being raised in
opposition to Dharni’s habeas petition in the district court,
because the broader legal argument of triviality is properly
before us. See, e.g., Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991) (“[w]hen an issue or claim is properly
before the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the
independent power to identify and apply the proper
construction of governing law”); Thompson v. Runnels,
705 F.3d 1089, 1098 (9th Cir. 2013) (in a habeas case,
explaining that “parties are not limited to the precise
arguments they made below,” and can make “new arguments
on appeal if they are intertwined with the validity of the
claim,” which means that “we may consider new legal


trial when it totally closes the courtroom to the public, for a non-trivial
duration, without first complying with the four requirements” from the
Supreme Court’s precedents. 638 F.3d at 1063. In other words, when a
district court “totally closes the courtroom to the public” without
complying with the Supreme Court’s requirements, the closure does not
violate the Sixth Amendment so long as it is for a trivial duration. Thus,
some “total” closures can still be trivial.
                UNITED STATES V. DHARNI                    21

arguments raised by the parties relating to claims previously
raised in the litigation”).

    Our now-vacated panel decision was not limited to the
question of whether the closure was partial or total. Instead,
we affirmed the district court because we concluded that the
closure was trivial. We decided as a matter of law that the
district judge’s statement to the spectators was not a closure
of the courtroom for the entirety of voir dire. That legal
conclusion was one factor, along with the size of the
courtroom, the lack of evidence that spectators were
prevented from reentering the courtroom, and the uncertain
duration of the closure, to affirm the district court’s
conclusion that the closure was trivial.

    Because the government always argued that the closure
was trivial, it was free to make “new arguments on appeal
[because] they [were] intertwined with the validity of the
claim.” Runnels, 705 F.3d at 1098. The government argued
that the district court’s intention was not to close the
courtroom during the entirety of voir dire. We agreed with
that position. Dharni, 738 F.3d at 1189.

    The majority tries to recontextualize our legal holdings
about the words the judge used as factual findings, subject to
further development of facts. Majority Order at 4–5 (“[t]he
scope of that remand shall be limited to . . . permitting the
district court to make findings of fact on whether spectators
had an opportunity to reenter the courtroom during voir
dire”).

   But that is incorrect. The panel’s understanding that
spectators could return during voir dire did not need to be
based on facts in the record, but was based on our legal
22               UNITED STATES V. DHARNI

interpretation of the actual words the district judge used,
when he stated that “family and friends of the defendant and
any other spectators that are out there will wait out in the hall
during jury selection until seats open up.” Indeed, Dharni
admits this in his petition for rehearing, arguing that the
panel’s “reading” – i.e. our legal interpretation – “of the
district court closure order is unreasonable and unfair to
appellant and his family.”

    The majority also cites Dharni’s explanation that “the
district court’s decision rested on the same understanding”
that the courtroom was closed for all of voir dire. Majority
Order at 3. But of course, the panel legally interpreted the
words the judge used. We reverse “understandings” and legal
decisions of district courts all the time.

    The government has never switched its broader legal
theory about the courtroom closure. It has consistently argued
that the closure was trivial. The panel agreed with that, in part
because of our decision on the narrower legal question,
argued only by the government on appeal, that the closure
was temporary. The panel was free to consider this narrower
legal argument, and no further facts could disturb that
conclusion.

                              IV.

    Thus, I dissent, because I conclude our panel decision was
correctly decided and the motions panel’s order did not
prejudice Dharni. But even if the closure of the courtroom
was not trivial, and even if it violated the Sixth Amendment,
Dharni did not object to the closure at trial or on appeal, and
has never argued that he suffered any prejudice from the
closure. Thus, assuming a courtroom closure is a “structural
                 UNITED STATES V. DHARNI                    23

error” subject to automatic reversal of conviction, Dharni
procedurally defaulted the claim, and has not shown the
“cause” and “actual prejudice” needed to overcome the
default. See, e.g., Vansickel v. White, 166 F.3d 953 (9th Cir.
1999).

    Our statement of the law in Vansickel, which is consistent
with that of the Second, Fifth, Eighth, Tenth and Eleventh
Circuits, has been confused by United States v. Withers,
638 F.3d 1055 (9th Cir. 2010). Whether habeas petitioners
must show they suffered actual prejudice from a structural
error if they procedurally defaulted the error is now the
subject of intracircuit conflict. If the district court were to
find that the closure was not trivial and violated the Sixth
Amendment, only our court en banc, not a three-judge panel,
could resolve the conflict before granting relief to Dharni. I
believe that our decision in Vansickel and the comparable
decisions of our sister circuits are correct. Under Vansickel,
Dharni’s failure to plead that he suffered actual prejudice
from the courtroom closure means we should affirm the
denial of Dharni’s habeas petition even if the closure was not
trivial.

                              A.

    Dharni did not object to the courtroom closure or raise the
issue on direct appeal. A federal court can thus only offer him
relief under section 2255 if he shows both “cause” excusing
this procedural default and “actual prejudice” from the errors
of which he complains. United States v. Frady, 456 U.S. 152,
167–68 (1982). Dharni has not affirmatively pleaded that he
suffered any prejudice. Instead, he argues that because the
courtroom closure was a “structural error,” which affects the
framework of the trial itself, prejudice must be presumed. As
24               UNITED STATES V. DHARNI

Dharni explains, his trial and appellate attorneys must have
acted ineffectively, because had they raised the courtroom
closure either at trial or on direct appeal, he would have
merited automatic reversal of conviction. Thus, he argues that
his attorneys’ failures to raise the issue caused him the actual
prejudice of not having his conviction reversed.

                               B.

    Assuming that a courtroom closure during voir dire is a
structural error, Dharni argues that he is entitled to relief
despite his procedural default, because he presumptively
suffered prejudice from his attorneys’ failure to object at trial
or raise the closure on direct appeal. But whether we presume
prejudice for structural errors is subject to decisions where we
have come to opposite conclusions. Compare Vansickel v.
White, 166 F.3d 953 (9th Cir. 1999) with United States v.
Withers, 638 F.3d 1055, 1065–66 (9th Cir. 2010). Most of our
sister circuits have rejected the reasoning of Withers.

                               1.

    In Withers, the panel considered a habeas petition based
on the closure of the courtroom during voir dire, where the
petitioner had not objected to the closure at trial or on appeal.
According to the panel, even though Withers had not shown
he was actually prejudiced by the closure, had his counsel on
direct appeal raised the argument, he “would have been
entitled to automatic reversal of his conviction and a new trial
had he established a violation.” Id. at 1065. His attorney’s
failure to raise the closure on appeal by definition constituted
“cause” and “actual prejudice.” Id. at 1065–66. The panel
also held there was a credible claim that Withers’ trial
counsel’s performance presumptively constituted “cause” and
                     UNITED STATES V. DHARNI                              25

“actual prejudice” because his failure to object resulted in a
structural error. Id. at 1066–68.

    These conclusions were contradictory to our prior
decision of Vansickel. In that case, a state court “erroneously
denied [the defendant] his full allotment of peremptory
challenges,” a mistake that at the time “require[d] automatic
reversal.” 166 F.3d at 955, 959, citing United States v.
Annigoni, 96 F.3d 1132 (9th Cir. 1996), overruled by Rivera
v. Illinois, 556 U.S. 148 (2009), as recognized by United
States v. Lindsey, 634 F.3d 541, 544 (9th Cir. 2011). But the
defendant did not object to the state court’s error during voir
dire. Id. at 955 (“defense counsel failed to make a
contemporaneous objection to the loss of peremptory
challenges”). The federal district court rejected the
defendant’s habeas petition. Id. at 956. We affirmed, because
the defendant had not established that he had suffered actual
prejudice. Critically, we distinguished prior cases including
Annigoni where we reversed convictions because of
erroneous denials of peremptory challenges. We held that
those reversals were in “direct federal appeal cases in which
the defendants timely objected in the district court to
erroneous limitation of their peremptory challenges.” Id. at
959. In other words, although the defendant complained of
what we then considered a structural error,2 we required that



 2
   We did not use the phrase “structural error,” but referred to “erroneous
denial of a peremptory challenge” as requiring “automatic reversal.”
Vansickel, 166 F.3d at 959. That followed our understanding in Annigoni
that some trial errors are “not amenable to harmless-error analysis,” but
do not necessarily “rise[] to the level of structural error.” 96 F.3d at 1144.
That understanding, that some errors require “automatic reversal” but are
not “structural errors,” is not consistent with later Supreme Court
decisions. Neder v. United States, 527 U.S. 1, 7 (1999) (stating that “[f]or
26                   UNITED STATES V. DHARNI

he affirmatively “establish prejudice,” and refused to hold
that he was entitled to a presumption of prejudice. Id.

    We suggested two distinctions between Vansickel and
Annigoni and its progeny. Annigoni and the other cases were
(1) “direct federal appeal cases,” where (2) “the defendants
timely objected in the district court to erroneous limitation of
their peremptory challenges.” Id. The first distinction, that the
underlying conviction was a state proceeding rather than a
federal proceeding, could not have been the basis for our
holding, because the same “cause” and “actual prejudice”
requirements apply to petitions seeking relief from state and
federal convictions, and did so at the time Vansickel was
decided. Frady, 456 U.S. at 167 (citing two cases involving
underlying state convictions to determine the standard for
review of federal convictions). The only proper distinction
between Vansickel and Annigoni then was that the defendant
in Annigoni contemporaneously objected to the denial of
peremptory challenges. In other words, we held that because
the defendant in Vansickel failed to object to the structural
error at trial, he was not entitled to a presumption of
prejudice.

     Judge Reinhardt’s dissent clearly outlined the majority’s
holding. He argued that he believed it would be impossible
for the defendant to show prejudice, and stated his belief that
“the presumption of prejudice applies in habeas cases as well
as on direct appeal.” Vansickel, 166 F.3d at 960 (Reinhardt,
J., dissenting). Judge Reinhardt continued that even if a party
normally would need to demonstrate prejudice after
procedural default, “[w]hen the performance of counsel has


all other constitutional errors [besides structural errors], reviewing courts
must apply Rule 52(a)’s harmless-error analysis”).
                 UNITED STATES V. DHARNI                      27

been so egregious as to amount to a constructive denial of
counsel [by failing to object to an error that merits automatic
reversal], we presume prejudice.” Id. at 962.

    The panel’s reasoning from Withers, without even
recognizing Vansickel, followed the dissent from the earlier
case rather than the majority holding. The Withers panel held
that a petitioner did not need to show prejudice when he did
not object to a structural error at trial or even raise the error
on appeal. Withers, 638 F.3d at 1065–67. Of course, the panel
was not free to ignore a majority holding of this court in favor
of a dissent. I believe that the two decisions are
irreconcilable. Accord Amy Knight Burns, Note,
Insurmountable Obstacles: Structural Errors, Procedural
Default, and Ineffective Assistance, 64 STAN. L. REV. 727,
758 (2012) (“[t]hough an earlier Ninth Circuit case
[Vansickel] required a showing of actual prejudice, Withers,
the most recent case in the Circuit, declares it an open
question without citing the earlier case”). The only way to
resolve such a conflict, which must be resolved if we are to
grant Dharni habeas relief, is through en banc review. United
States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en
banc) (“the appropriate mechanism for resolving an
irreconcilable conflict is an en banc decision”) (citation
omitted).

                               2.

    Most of our sister circuits follow Vansickel and refuse to
reverse convictions automatically on direct or habeas review
based on unpreserved structural errors, instead requiring that
the defendant actually demonstrate how he was prejudiced.
United States v. Gomez, 705 F.3d 68, 74–76 (2d Cir. 2013) (a
courtroom closure was a structural error, but nonetheless the
28                UNITED STATES V. DHARNI

court refused to reverse because the defendant did not show
that the error “affected the fairness, integrity, or public
reputation of judicial proceedings”); Charboneau v. United
States, 702 F.3d 1132, 1138 & n.3 (8th Cir. 2013) (subjecting
an unpreserved challenge to a structural error to plain error
review and affirming the conviction); United States v.
Turietta, 696 F.3d 972, 976 n.9 (10th Cir. 2012) (“Turietta’s
claim of a ‘structural’ error has little bearing on the
application of the plain error test,” and refusing to reverse the
conviction under plain error review); United States v. Phipps,
319 F.3d 177, 189 n.14 (5th Cir. 2003) (an unchallenged
structural error is subject to plain error review and affirming
the conviction despite the error); see also Purvis v. Crosby,
451 F.3d 734, 743 (11th Cir. 2006) (“prejudice may not be
presumed but must be shown in order to establish ineffective
assistance of counsel based on the failure to raise a claim of
structural error at trial”); but see Owens v. United States,
483 F.3d 48 (1st Cir. 2007).

                                C.

    The majority now remands this case to the district court
for fact-finding, which may lead the district court to find that
the closure here was not trivial. If the closure was not trivial,
though, Dharni is still not entitled to habeas relief under
Vansickel, because he has not demonstrated that he suffered
prejudice from the courtroom closure, but rather argued that
we must presume he has suffered such prejudice. If the
closure in Dharni’s trial is found to be not trivial, this court en
banc must consider his appeal to resolve the dispute between
Vansickel and Withers.
                 UNITED STATES V. DHARNI                    29

                              V.

    The majority is wrong. Dharni was not prejudiced by the
government’s alleged switch in positions. The government
did not switch its positions as a matter of law. Finally, if on
remand the district court decides that the closure here was not
trivial, our court en banc must hear this appeal to resolve the
irreconcilable conflict in our case law. Without such review,
Dharni cannot receive relief even if the closure violated his
Sixth Amendment rights (which it did not), because he
procedurally defaulted the claim and has not shown that he
suffered prejudice from the closure.
