dissenting:
The Supreme Court has long sought to ensure that the criminal trial remains “the main event,” not a “tryout on the road” for a later habeas proceeding. Coleman v. Thompson, 501 U.S. 722, 747, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). The “main event” in Withers’ case took place well over a dozen years ago. In the interests of finality and judicial economy, we can and should decide the remaining claims that the majority leaves for another day. Assuming Withers’ appeal to be timely, I would conclude that his public-trial and ineffective-assistance claims fail as a matter of law.
I.
The majority avoids resolving Withers’ claims through a mischievous misreading of our precedents interpreting Rule 4 of the Rules Governing § 2255 Cases. Relying on United States v. Schaflander, the majority holds that the dismissal of Withers’ petition was error because his legal arguments were not “palpably incredible or patently frivolous.” 743 F.2d 714, 717 (9th Cir.1984) (per curiam). But this language from Schaflander referred to the factual allegations contained in a habeas petition, not the legal claims asserted in reliance on those facts. See id.; see also, e.g., United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980) (“[I]n certain cases the factual allegations are so palpably incredible, so patently frivolous or false, that it is clear the movant is not entitled to relief or even to a hearing.” (emphasis added) (citations and internal quotation marks omitted)).
While we accept Withers’ factual allegations unless they are “palpably incredible or patently frivolous,” we must still decide whether these facts — together with the record of prior proceedings — entitle him to relief as a matter of law. This analysis is essentially identical to that conducted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Schaflander, 743 F.2d at 717 (“The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.”). Under that familiar standard, dismissal is not “eonfine[d] ... to claims of law which are obviously insupportable.” Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). “On the contrary, ... a claim must be dismissed[ ] without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.” Id.
II.
In Presley v. Georgia, the Supreme Court recently confirmed what many courts had presumed — the Sixth Amendment’s guarantee of a public trial extends to the voir dire of prospective jurors. — U.S. -, 130 S.Ct. 721, 723-24, 175 L.Ed.2d 675 (2010) (per curiam). This right, however, is not self-executing: “the Sixth Amendment right to a trial that is public[] providefs] benefits to the entire society more important than many structural guarantees; but if the litigant does not assert[it] in a timely fashion, he is foreclosed.” Freytag v. Comm’r, 501 U.S. 868, 896, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (internal quotation marks omitted); see Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also Waller v. Georgia, 467 U.S. 39, 42 n. 2, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). As the *1070Supreme Court explained in Levine v. United States:
Due regard generally for the public nature of the judicial process does not require disregard of the solid demands of the fair administration of justice in favor of a party who, at the appropriate time and acting under advice of counsel, saw no disregard of a right, but raises an abstract claim only as an afterthought on appeal.
362 U.S. 610, 619-20, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960).
In the case before us, no objection was raised to the district judge’s order that spectators vacate the courtroom during the voir dire of prospective jurors. Cf. Presley, 130 S.Ct. at 722. Nor did Withers, assisted by new counsel, attempt to raise the issue on direct appeal. Cf. id. at 722-23. Withers’ public-trial claim was doubly defaulted. It fails as a matter of law.
The majority suggests that Withers may overcome the failure to raise this claim on direct appeal by attributing the default to the deficient performance of appellate counsel.1 But constitutionally effective appellate counsel “need not (and should not) raise every nonfrivolous claim”; “only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Withers’ appellate counsel cannot be deemed ineffective for failing to raise a claim that — -if not altogether forfeited under longstanding Supreme Court precedent — would also fail to satisfy the prerequisites of plain-error review. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009); Johnson v. United States, 520 U.S. 461, 468-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). “No procedural principle is more familiar ... than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Withers’ appellate counsel was not ineffective for prosecuting his appeal in a manner consistent with this familiar principle.2
*1071III.
Withers’ remaining claim asserts that his trial counsel was constitutionally ineffective for failing to object to the courtroom closure during the voir dire of prospective jurors. “An error by counsel,” however, “does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There must be a reasonable probability that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052 (emphasis added). Withers does not attempt to suggest that the absence of spectators during his jury voir dire undermined the factual determination of his guilt. Instead, he claims that Strickland prejudice must be presumed whenever counsel fails to object to a “structural” error.
The Supreme Court has carefully identified three situations in which Strickland prejudice can be presumed. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). The first is the “complete denial of counsel.” Id. The second occurs where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. And the third is found where “counsel is called upon to render assistance under circumstances where competent counsel very likely could not.” Id. In these situations, “prejudice is so likely that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (emphasis added). Noticeably absent from these enumerated circumstances is eounsel’s failure to object to a “structural” error.
The reason for this absence is clear: “Per se rules should not be applied ... in situations where the generalization is incorrect as an empirical matter.” Coleman, 501 U.S. at 737, 111 S.Ct. 2546. There is no reason to believe that every failure to object to a “structural” error — such as a courtroom closure during the voir dire of prospective jurors — is an instance of ineffective assistance of counsel that requires setting aside the judgment. The Strickland Court recognized that “an act or omission that is unprofessional in one case may be sound or even brilliant in another,” 466 U.S. at 693, 104 S.Ct. 2052, and as numerous authorities attest, the closure of a courtroom in many instances may be in a defendant’s best interests. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-60, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 375, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); see also Freytag, 501 U.S. at 896, 111 S.Ct. 2631 (Scalia, J., concurring).
No presumption of Strickland prejudice is warranted here. The failure to object to a courtroom closure during the voir dire of prospective jurors is not remotely akin to the “actual or constructive denial of the assistance of counsel altogether.” Strickland, 466 U.S. at 683, 104 S.Ct. 2052. Nor is there any suggestion that the alleged error “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. *1072Withers’ ineffective-assistance claim fails as a matter of law.
IV.
The interests of finality and judicial economy call for resolving Withers’ remaining claims on the merits. I would answer this call and affirm the denial of his habeas petition.
. As a threshold matter, the majority submits that Withers' default must first be asserted in the district court, but this suggestion is belied by the well-established rule that we may raise procedural bars sua sponte in a habeas case. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998); see also Webster v. Woodford, 369 F.3d 1062, 1067 (9th Cir.2004) (finding that “judicial economy is served by addressing the Teague argument [on] appeal,” even though it had not been raised in the district court). Of course, we need not raise Withers’ procedural default sua sponte; the government asserted the defense when it first had the opportunity to do so in its answering brief, and Withers addressed the argument in his reply brief.
. The majority appears to rely on Waller and Campbell v. Rice, 408 F.3d 1166 (9th Cir.2005), to suggest that an unpreserved structural error would garner "automatic reversal” on direct appeal. In Waller, however, the Supreme Court only addressed a preserved public-trial claim and expressly indicated that defendants who fail to object may automatically forfeit their right to a public trial. See 467 U.S. at 42 n. 2, 104 S.Ct. 2210. In turn, the dictum referenced in Campbell did not distinguish between preserved and unpreserved errors. See 408 F.3d at 1171-72.
Refusing to find Withers' claim forfeited, the majority belatedly concedes that Withers’ unpreserved claim would at least be subject to plain-error review. The majority clings to the “possibility” that "structural errors may automatically satisfy the [third] plain-error requirement that the error affect substantial rights.” Even accepting this “possibility,” Withers could not demonstrate — as he must under plain-error review — that the claimed error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Johnson, 520 U.S. at 470, 117 S.Ct. 1544. Rather, "it would be the reversal of a *1071conviction such as this which would have that effect." Id. Withers was convicted of 11 counts of narcotics trafficking and money laundering after an 18-day jury trial, ultimately receiving a sentence of 30 years in federal prison. Reversing Withers' conviction due to an error that had no effect whatsoever on the factual determination of his guilt would “encourage[] litigants to abuse the judicial process and bestir[ ] the public to ridicule it.” Id. (quoting Chief Justice Roger J. Traynor, The Riddle of Harmless Error 50 (1970)).