IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30953

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

January 3, 2012

Lyle W. Cayce

Clerk

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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