     Case: 10-30953     Document: 00511711600         Page: 1     Date Filed: 01/03/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 3, 2012
                                     No. 10-30953
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMIE EDELKIND,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:09-CV-1783
                           USDC No. 6:05-CR-60067-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jamie Edelkind, federal prisoner # 11866-035, appeals the district court
denial of his 28 U.S.C. § 2255 motion challenging his conviction for willful
nonpayment of child support in violation of the Child Support Recovery Act, 18
U.S.C. § 228.      The district court granted a certificate of appealability on
Edelkind’s ground five -- whether his appellate counsel was ineffective in failing
to challenge on appeal the closure of the courtroom during voir dire allegedly in


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-30953

violation of the precedent established in Presley v. Georgia, 130 S. Ct. 721 (2010).
Edelkind argues that his appellate counsel were ineffective in failing to
challenge the district court’s closure to the public of a portion of the voir dire
examination of the certain potential jurors. Edelkind asserts that because
Presley did not establish a new rule of law, counsel should have been aware of
and raised this issue; that the closure was not warranted by privacy concerns or
the desire to obtain an unbiased jury; that a potential juror must request the
closure; and that he did not knowingly and voluntarily waived his right to a
public voir dire proceeding.
      Edelkind has not shown that the district court erred in denying this claim.
Edelkind’s counsel waived the issue when he failed to object, and this waiver
was effective as to Edelkind. See United States v. Hitt, 473 F.3d 146, 155 (5th
Cir. 2006) (citing Levine v. United States, 362 U.S. 610, 619 (1060). Only if there
is no waiver can the courtroom closure violate the Sixth Amendment. See Hitt,
473 F.3d at 155; Levine, 362 U.S. at 619. Even if he had not waived the issue,
Edelkind has not shown that his appellate counsel was ineffective in not
challenging the closure. Under the law at the time of trial, the closure fell
within a valid exception for preventing the disclosure of sensitive information;
it involved only a small part of the overall voir dire process; the trial judge
provided reasons for the closure and allowed the parties an opportunity to object;
and the closure fostered complete and honest answers by prospective jurors on
sensitive issues directly relating to the nature of the charged offense. See Waller
v. Georgia, 467 U.S. 39, 48 (1984). He has not shown that his appellate counsel’s
performance was deficient for failing to challenge the closure of the courtroom
based on Presley, which was decided after his trial and appeal. See Lucas v.
Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998). The Supreme Court has not made
Presley retroactive to cases on collateral review. Further, Edelkind has not
shown that he was prejudiced by his appellate counsel’s alleged error as he has
not shown that there is a reasonable probability that there would have been a

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                                 No. 10-30953

different outcome if counsel had raised the issue on appeal. See Strickland v.
Washington, 466 U.S. 668, 694 (1984); see also United States v. Dovalina, 262
F.3d 472, 474-75 (5th Cir. 2001). Therefore, Edelkind has not shown that the
district court erred in denying this claim. See Strickland, 466 U.S. at 694; see
also Dovalina, 262 F.3d at 474-75. Edelkind’s request that the court not
consider the respondent’s brief because it was untimely is denied.
      AFFIRMED.




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