[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 27, 2012
No. 10-13896
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket Nos. 5:08-cv-90024-CDL,
5:03-cr-00083-CDL-1
EDDIE MILTON GAREY, JR.,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 27, 2012)
Before BARKETT, HULL and BLACK, Circuit Judges.
PER CURIAM:
Eddie Garey, Jr., a federal prisoner proceeding pro se, appeals the dismissal
of his 28 U.S.C. § 2255 motion to vacate his sentence, asserting that the Sixth
Amendment was violated when a journalist was denied access to the courtroom
during jury selection for Garey’s trial.1 Garey argues that, although he did not
raise this issue on direct appeal, his claim should not be deemed procedurally
defaulted because his appellate counsel provided ineffective assistance.
A habeas petitioner may overcome procedural default by showing that his
counsel was constitutionally ineffective. United States v. Nyhuis, 211 F.3d 1340,
1344 (11th Cir. 2000). To prevail on a claim of ineffective assistance of appellate
counsel, a defendant must show that counsel was objectively unreasonable in
failing to raise a particular issue on appeal. See Smith v. Robbins, 528 U.S. 259,
285 (2000).2
Garey contends that his appellate counsel was deficient in failing to argue
that Garey’s Sixth Amendment right to a public trial was violated when a court
security officer refused to permit a single newspaper reporter to enter the
1
Garey also challenges the district court’s decision to hold a hearing on Garey’s motion
to disqualify counsel in chambers rather than in court. However, because this issue is outside the
scope of the certificate of appealability, we cannot address it. Murray v. United States, 145 F.3d
1249, 1250 (11th Cir. 1998).
2
We review a claim of ineffective assistance of counsel de novo as a mixed question of
law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir. 2009) (per curiam).
2
courtroom during jury selection. The security officer’s action was unauthorized
by the district court, was contrary to the district court’s policy of conducting open
trials, and was unknown to all of the participants in jury selection at the time that it
occurred. At the time of Garey’s appeal, our court had not yet addressed whether
a defendant’s public trial right may be violated when members of the public are
excluded from the courtroom without authorization from the district court, and two
Circuits had concluded that a brief, unauthorized closure does not violate the Sixth
Amendment. See Peterson v. Williams, 85 F.3d 39, 44 (2d Cir. 1996); United
States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). Moreover, in omitting a
challenge to the unauthorized closure of the courtroom during jury selection,
Garey’s counsel focused on other arguments that were presented on appeal, and
his appeal was initially successful. See United States v. Garey, 483 F.3d 1159
(11th Cir. 2007) (reversing Garey’s conviction), rev’d en banc, 540 F.3d 1253
(11th Cir. 2008). In light of the strength of the performance given by appellate
counsel in obtaining reversal of Garey’s conviction initially, combined with the
indeterminate status of unauthorized courtroom closure under the law at the time
of Garey’s appeal, we cannot say that counsel performed deficiently in omitting
this argument. See Smith, 528 U.S. at 285.
3
Accordingly, because Garey has not shown that his appellate counsel
rendered constitutionally ineffective assistance, he cannot overcome his
procedural default in failing to raise his Sixth Amendment argument in his initial
appeal. See Nyhuis, 211 F.3d at 1344.
AFFIRMED.
4