### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 di s trict 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary3, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-30953 Document: 00511711600 Page: 1 Date Filed: 01/03/2012No. 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 c e rt ain potential jurors. Edelkind asserts that because Presley did not establish a new rule of law, counsel should have b e e n 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 m ust request the closure; a n d 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 w aiv e d th e issue when he failed to object, and this waiver

was effective a s 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 appellat e c o u nsel 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 tri al j u d g e 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 hi s 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 revie w . 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 t h at there would have been a 2 Case: 10-30953 Document: 00511711600 Page: 2 Date Filed: 01/03/2012No. 10-30953

different outcome if counsel had raised the issue on app e al. See Strickland v. Washington , 466 U.S. 668, 694 (1984); see also U n i t e d S tates v. Dovalina , 262 F.3d 472, 4 74-75 (5th Cir. 2001). Therefore, Edelkind has not shown that the district court erred in denying this claim. Se e S t rickland , 466 U.S. at 694; see also Dovalina , 262 F.3d at 474-75. Edelki n d’s request that the court not consider the respondent’s brief because it was untimely is denied. AFFIRMED.

3 Case: 10-30953 Document: 00511711600 Page: 3 Date Filed: 01/03/2012