                  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.               OPINION


      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 January 3, 2014

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

               Opinion by Judge Wallace
2                  UNITED STATES V. DHARNI

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of a
28 U.S.C. § 2255 motion to vacate sentence challenging the
alleged closure of the courtroom during voir dire of
petitioner’s criminal trial.

    The panel held that the trial judge’s request that family
members and spectators leave the courtroom during voir dire
until seats became available was at most a trivial courtroom
closure that did not implicate petitioner’s Sixth Amendment
rights. The panel further held that counsel did not provide
ineffective assistance by failing to object to the request or
challenge the alleged closure on appeal because it would not
have disturbed the conviction.


                            COUNSEL

Quin Denvir, Attorney at Law, Davis, California, for
Defendant-Appellant.

R. Steven Lapham (argued), Assistant United States Attorney,
Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, Sacramento, California, for
Plaintiff-Appellee.




  *
    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

                          OPINION

WALLACE, Circuit Judge:

    Sundeep Dharni filed a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 based on
the alleged closure of the courtroom during voir dire of his
criminal trial, and the ineffective assistance of both his trial
counsel, by failing to object to the alleged closure, and his
appellate counsel, by failing to challenge his conviction based
on the alleged closure. The district court held that any
closure was trivial and denied the motion. Dharni appeals
from the denial of that motion. We have jurisdiction over his
timely filed appeal under 28 U.S.C. §§ 2253, 2255, 1291. We
affirm.

                               I.

    In early July 2007, Dharni was tried for violations of
18 U.S.C. §§ 844, 1341. During consideration of jury
selection, the district judge stated he “anticipate[d] some
problems because of the 4th of July holiday and possible
hardship excuses.” He therefore expanded the number of
prospective jurors. On the morning of trial, the district court
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
4                UNITED STATES V. DHARNI

       there will wait out in the hall during jury
       selection until seats open up.

    Dharni’s lawyer did not object to the court’s 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 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 before taking a fifteen-
minute recess. When jury selection reconvened, another nine
potential jurors were excused because of peremptory or for-
cause challenges. In total, fourteen potential jurors were
excused before the jury and the two alternates were
empanelled. At no point during jury selection did Dharni’s
attorney object to any absence of Dharni’s family members
or other spectators. The record does not indicate whether any
family members or other spectators returned to the courtroom
as jurors were excused and seats opened up.

    The jury convicted Dharni. He appealed his conviction
to this court, but did not challenge the judge’s request
that family members and spectators leave the courtroom
until seats became available. See United States v. Dharni,
324 F. App’x 554 (9th Cir. 2009). We affirmed his
conviction. Id. at 556.

    In 2010, Dharni filed the instant motion to set aside his
conviction under 28 U.S.C. § 2255 before the district court.
In the motion, he raised two claims for the first time: that the
district court violated his Sixth Amendment right to a public
                    UNITED STATES V. DHARNI                             5

trial by requesting that spectators leave the courtroom during
voir dire, and that his trial and appellate counsel ineffectively
assisted him by failing to object or appeal from the court’s
request that family members and spectators leave the
courtroom.1

    The district court denied Dharni’s motion. 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 appeals from the judgment denying his
motion. We review Sixth Amendment and ineffective
assistance of counsel claims de novo. United States v.
Ivester, 316 F.3d 955, 958 (9th Cir. 2003); United States v.
Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003). We also
review de novo the denial of a federal prisoner’s motion
under 28 U.S.C. § 2255. See, e.g., United States v. Aguirre-
Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).




   1
     Dharni also challenged other decisions of his trial and appellate
counsel as ineffective. The district court rejected his arguments. He has
not appealed those challenges in his opening brief, so he has waived them.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
6                UNITED STATES V. DHARNI

                              II.

    We first address Dharni’s substantive Sixth Amendment
claim. The Sixth Amendment “directs, in relevant part, that
‘[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial. . . .’” Presley v. Georgia,
558 U.S. 209, 212 (2010) (per curiam) (alterations in
original), quoting U.S. Const. amend. VI. Contrary to the
district court’s ruling, the public trial right extends to voir
dire, and did so on the date of Dharni’s trial. Id. at 213
(observing that “the question then arises whether it is so well
settled that the Sixth Amendment right extends to jury voir
dire,” and stating that “[t]he point is well settled” under
Supreme Court decisions from the 1980s).

    In some circumstances, though, the exclusion of
spectators from a trial proceeding does not implicate the
constitutional right. United States v. Rivera, 682 F.3d 1223,
1229 (9th Cir. 2012). “Trivial” exclusions do not infringe
upon the values behind the right. Id., quoting Ivester,
316 F.3d at 960. Those values are: “‘(1) to ensure a fair trial,
(2) to remind the prosecutor and judge of their responsibility
to the accused and the importance of their functions, (3) to
encourage witnesses to come forward[,] and (4) to discourage
perjury.’” Ivester, 316 F.3d at 960, quoting Person v.
Williams, 85 F.3d 39, 43 (2d Cir. 1996); see also Rivera,
682 F.3d at 1229 (explaining that trivial closures do not
implicate the values of “ensuring fair proceedings; reminding
the prosecutor and judge of their grave responsibilities;
discouraging perjury; and encouraging witnesses to come
forward”).

   The district court’s request that family members and other
spectators go out to the hall during voir dire until seats
                 UNITED STATES V. DHARNI                       7

became available was at most a trivial closure that does not
implicate the Sixth Amendment. The judge specifically
stated that spectators should “wait out in the hall during jury
selection until seats open up.” Spectators were therefore free
to reenter the courtroom to observe the voir dire as jurors
were excused. The court even took a recess after seats had
“open[ed] up.” Five spectators were free to reenter the
courtroom for the remainder of voir dire after the recess.

    There is, however, no evidence in the record that the
district court took additional affirmative steps to invite family
members or other spectators back to the courtroom after seats
opened up. It would have been better under these
circumstances to make that invitation clearer, possibly by
sending a courtroom deputy clerk outside the courtroom to
determine if anyone wanted to return. But Dharni has offered
no evidence, nor have we found any evidence in the record,
that court personnel prevented the spectators from reentering
the courtroom.

    In a case not cited by the parties, we held that a closure
did not implicate the Sixth Amendment where a courtroom
was not large enough to accommodate all spectators who
might wish to view a trial and the district court never
affirmatively expelled members of the public. United States
v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003). Given that 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. at 974–75.

    There is further support for this conclusion in the Second
Circuit’s well-reasoned decision that excluding a single
8                UNITED STATES V. DHARNI

spectator from observing a portion of voir dire was “too
trivial to warrant the remedy of nullifying an otherwise
properly conducted” criminal trial, when that spectator was
allowed to watch the remainder of voir dire after more space
became available in the courtroom. Gibbons v. Savage,
555 F.3d 112, 121 (2d Cir. 2009).

    Therefore, the request that family members and spectators
leave the courtroom until seats became available was at most
a trivial courtroom closure that did not implicate Dharni’s
Sixth Amendment rights, and the district court did not err in
denying Dharni’s motion on this ground.

                              III.

     Dharni is entitled to relief on his claim of ineffective
assistance of counsel only if he establishes both that his
counsel performed deficiently and that such deficient
performance prejudiced him. United States v. Thomas,
417 F.3d 1053, 1056 (9th Cir. 2005); see also Turner v.
Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (explaining that
“[c]laims of ineffective assistance of appellate counsel are
reviewed according to the” same standard that applies to trial
counsel). Because the request for family members and
spectators to leave the courtroom was at most a trivial closure
that did not violate the Sixth Amendment, the failure to object
to the request or appeal the conviction on that ground was not
deficient performance. Nor could those failures have
prejudiced Dharni, because even if counsel had objected or
appealed, Dharni’s conviction would not have been disturbed.
The district court did not err in rejecting Dharni’s ineffective
assistance of counsel claims.

    AFFIRMED.
