Argued and Submitted Sept. 10, 2013.
Quin Denvir, Attorney at Law, Davis, CA, for Defendant-Appellant.
R. Steven Lapham (argued), Assistant United States Attorney, Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Appellate Chief, Sacramento, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. D.C. Nos. 2:10-CV-02934-EJG, 2:05-CR-00306-EJG.
Before: J. CLIFFORD WALLACE, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.
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.
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 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 ...