                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                      MARCH 27, 2012
                                            No. 10-13896
                                        Non-Argument Calendar           JOHN LEY
                                                                         CLERK
                                      ________________________

                               D.C. Docket Nos. 5:08-cv-90024-CDL,
                                      5:03-cr-00083-CDL-1

EDDIE MILTON GAREY, JR.,

llllllllllllllllllllllllllllllllllllllll                             Petitioner-Appellant,

                                                versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.
                                      ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                           (March 27, 2012)

Before BARKETT, HULL and BLACK, Circuit Judges.

PER CURIAM:
       Eddie Garey, Jr., a federal prisoner proceeding pro se, appeals the dismissal

of his 28 U.S.C. § 2255 motion to vacate his sentence, asserting that the Sixth

Amendment was violated when a journalist was denied access to the courtroom

during jury selection for Garey’s trial.1 Garey argues that, although he did not

raise this issue on direct appeal, his claim should not be deemed procedurally

defaulted because his appellate counsel provided ineffective assistance.

       A habeas petitioner may overcome procedural default by showing that his

counsel was constitutionally ineffective. United States v. Nyhuis, 211 F.3d 1340,

1344 (11th Cir. 2000). To prevail on a claim of ineffective assistance of appellate

counsel, a defendant must show that counsel was objectively unreasonable in

failing to raise a particular issue on appeal. See Smith v. Robbins, 528 U.S. 259,

285 (2000).2

       Garey contends that his appellate counsel was deficient in failing to argue

that Garey’s Sixth Amendment right to a public trial was violated when a court

security officer refused to permit a single newspaper reporter to enter the



       1
         Garey also challenges the district court’s decision to hold a hearing on Garey’s motion
to disqualify counsel in chambers rather than in court. However, because this issue is outside the
scope of the certificate of appealability, we cannot address it. Murray v. United States, 145 F.3d
1249, 1250 (11th Cir. 1998).
       2
         We review a claim of ineffective assistance of counsel de novo as a mixed question of
law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir. 2009) (per curiam).

                                                2
courtroom during jury selection. The security officer’s action was unauthorized

by the district court, was contrary to the district court’s policy of conducting open

trials, and was unknown to all of the participants in jury selection at the time that it

occurred. At the time of Garey’s appeal, our court had not yet addressed whether

a defendant’s public trial right may be violated when members of the public are

excluded from the courtroom without authorization from the district court, and two

Circuits had concluded that a brief, unauthorized closure does not violate the Sixth

Amendment. See Peterson v. Williams, 85 F.3d 39, 44 (2d Cir. 1996); United

States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). Moreover, in omitting a

challenge to the unauthorized closure of the courtroom during jury selection,

Garey’s counsel focused on other arguments that were presented on appeal, and

his appeal was initially successful. See United States v. Garey, 483 F.3d 1159

(11th Cir. 2007) (reversing Garey’s conviction), rev’d en banc, 540 F.3d 1253

(11th Cir. 2008). In light of the strength of the performance given by appellate

counsel in obtaining reversal of Garey’s conviction initially, combined with the

indeterminate status of unauthorized courtroom closure under the law at the time

of Garey’s appeal, we cannot say that counsel performed deficiently in omitting

this argument. See Smith, 528 U.S. at 285.




                                           3
      Accordingly, because Garey has not shown that his appellate counsel

rendered constitutionally ineffective assistance, he cannot overcome his

procedural default in failing to raise his Sixth Amendment argument in his initial

appeal. See Nyhuis, 211 F.3d at 1344.

      AFFIRMED.




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