[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12873

Non-Argument Calendar

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D.C. Docket Nos. 1:12-cv-00541-MEF-WC; 1:09-cr-00188-MEF-WC-1

STEVEN MICHAEL CAPSHAW, 

 Petitioner-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(July 16, 2015)

Before HULL, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM: 

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Steven Michael Capshaw pro se appeals the district court’s denial of his 28 

U.S.C. § 2255 motion to vacate. This appeal involves Capshaw’s claims: (1) that 

his trial counsel was ineffective by not objecting to the admission of certain 

cellular telephone records; and (2) that his Sixth Amendment right to a public trial 

was violated when members of the public were prevented from attending voir dire

because security officers would not let them enter the courtroom.

After careful review of the record and the parties’ briefs, we affirm the 

district court’s order denying Capshaw’s § 2255 motion to vacate.

I. BACKGROUND

The facts of Capshaw’s arrest, jury trial, conviction, and sentence are largely 

covered in this Court’s review of that conviction and sentence on direct appeal. 

See United States v. Capshaw, 440 F. App’x 738, 740-42 (11th Cir. 2011) 

(unpublished). We review only those facts relevant to this § 2255 appeal.

A. The Underlying Offense 

After learning that his wife Sandra Capshaw wanted a divorce, Capshaw 

conceived and attempted to execute a murder-for-hire plot targeting his wife. Id. at 

740. The plot involved his sister Karen Whitaker, his niece Nathina Whitaker, and 

his niece’s boyfriend Tate O’Neal. Id. Unfortunately for Capshaw, but fortunately 

for his wife, Capshaw’s niece and her boyfriend were cooperating with police, who 

had received a tip about the potential murder plot. Id.

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On October 30, 2009, a magistrate judge issued a warrant for Capshaw’s 

arrest based on a criminal complaint alleging Capshaw’s involvement in the 

murder-for-hire scheme. On November 2, 2009, Capshaw was arrested. An 

assistant federal public defender, Kevin Butler, was appointed to represent 

Capshaw. On November 18, 2009, a federal grand jury indicted Capshaw in a onecount indictment charging him with violation of 18 U.S.C. § 1958, the use of a 

facility of interstate commerce (“to wit: a telephone”) with the intent that murder 

be committed in exchange for a promise of payment. 

B. Court Order for Cell Phone Records 

Following Capshaw’s arrest but prior to his indictment, the government 

applied for a court order, under 18 U.S.C. § 2703, directing various phone 

companies to disclose the stored telephone communications records for several cell

phone numbers, including Capshaw’s. In support of its application, the 

government averred that: (1) Capshaw solicited Nathina Whitaker and Tate O’Neal 

to kill his estranged wife; and (2) he used his cell phone to make interstate 

communications with O’Neal and Whitaker in furtherance of this plot. A 

magistrate judge granted the government’s § 2703 application and required the 

phone companies to produce the cell phone records of Capshaw, O’Neal, Karen 

Whitaker, and Nathina Whitaker. 

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Before trial, Capshaw’s counsel filed a motion to suppress “illegally seized

evidence,” including documents discovered at Capshaw’s residence, but he did not 

seek to suppress the cell phone records. 

At trial, the government introduced Capshaw’s cell phone records into 

evidence. The records were limited to those in September-November 2009, which 

was the relevant offense period. The government separately introduced the cell 

phone records for Nathina Whitaker, Capshaw’s niece, and Karen Whitaker, 

Capshaw’s sister.

1 The government introduced this evidence to show that 

Capshaw used his phone, a “facility of interstate commerce,” in furtherance of his 

criminal plot.

C. The Voir Dire Proceedings

On April 12, 2010, the district court conducted jury selection. Voir dire 

commenced at 10:37 a.m. and concluded at 12:23 p.m. Capshaw’s counsel was

present throughout, and Capshaw was present except for the period from 11:43 

a.m. to 12:16 p.m., during which counsel for both sides exercised their peremptory 

 1

The government did so through the testimony of Jeffrey Strohm, a records custodian for 

Sprint Nextel Corporation, who testified about incoming and outgoing calls for phone numbers 

covered by the court orders requiring production by Sprint Nextel, covering the months of 

September through November 2009. Strohm’s testimony shows that the records reflected basic 

subscriber information, including: (1) the name associated with a particular phone number along 

with the date range that the phone was active for the subscriber name; (2) the date, time, and 

duration of the phone calls; (3) the number with which the call occurred; and (4) any cell phone 

tower used to route the call. While these records contained the cell phone tower numbers for the 

towers used to route Capshaw’s calls, the government did not introduce evidence locating those 

towers as the prosecution was focused on who Capshaw called and when he called them, rather 

than on the location of the caller.

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strikes. There is no evidence at all in the trial record of the courtroom being closed 

or of any individual being denied entry to the courtroom during voir dire. There is 

not even any mention of this by the district court, the parties, or counsel for the 

parties.

D. Capshaw’s Conviction and Sentence 

The jury convicted Capshaw of the charged § 1958 offense. The district 

court sentenced him to 120 months’ imprisonment. See 18 U.S.C. § 1958(a). 

Capshaw appealed. On direct appeal, Capshaw did not raise any issue about the 

alleged denial of access to the courtroom during voir dire. On September 7, 2011, 

this Court affirmed his conviction and sentence. Capshaw, 440 F. App’x at 745. 

E. Capshaw’s § 2255 Motion to Vacate

On June 19, 2012, Capshaw pro se filed this motion to vacate, pursuant to 28 

U.S.C. § 2255. Capshaw’s motion raised 24 separate claims for relief. Of 

relevance to this appeal, he argued that his conviction was obtained in violation of 

the Fourth Amendment because the government acquired his and other individuals’ 

cell phone records from the service provider without securing a warrant. Capshaw 

further asserted that his counsel’s failure to challenge the admission of these cell 

phone records deprived him of his right to effective assistance of counsel 

guaranteed by the Sixth Amendment. 

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On November 26, 2012, Capshaw filed a motion to expand his § 2255 

motion, asserting that members of the public were excluded from attending the voir 

dire phase of his trial. He argued that this closure of proceedings violated his Sixth 

Amendment right to a public trial. A magistrate judge granted Capshaw leave to 

amend his § 2255 motion to add this new claim. Accompanying his reply to the 

government’s response brief, Capshaw attached affidavits from these five family 

members: (1) Patricia Pitts, Capshaw’s sister; (2) Norman Capshaw, Capshaw’s 

brother; (3) William Capshaw, also Capshaw’s brother; (4) William J. Capshaw, 

Capshaw’s nephew; and (5) Paula Perry, another of Capshaw’s sisters.

In substance, the five affidavits are nearly identical. Pitts and Perry aver 

that, after clearing security in the Dothan, Alabama courthouse, court security 

personnel required them to wait downstairs in the hallway while jury selection was 

being conducted in the upstairs courtroom. They aver that they were told that no 

one was allowed to enter the courtroom until jury selection was completed. They 

also aver that federal marshals were present at the top of the stairs, allowing only 

potential jurors into the courtroom. Norman Capshaw, William Capshaw, and 

William J. Capshaw aver that they attempted to enter the courtroom and were “told 

by federal marshalls [sic] at the doors that jury selection was closed to the public” 

and that they would have to wait outside in the hallway until jury selection was 

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over. All of these affidavits are dated between the 14th and 24th of December, 

2012, more than two-and-a-half years following the trial. 

On June 19, 2014, the district court denied Capshaw’s § 2255 motion. On 

January 6, 2015, this Court granted a certificate of appealability as to the two 

issues listed above. 

II. STANDARD OF REVIEW

On a motion to vacate under § 2255, this Court reviews a district court’s 

legal conclusions de novo and its factual findings for clear error. Devine v. United 

States, 520 F.3d 1286, 1287 (11th Cir. 2008). A claim of ineffective assistance of 

counsel is a mixed question of law and fact that we review de novo. Id. We 

liberally construe pro se filings, including pro se applications for relief pursuant to 

§ 2255. Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014). 

But our review is limited to those issues specified in the COA. McKay v. United 

States, 657 F.3d 1190, 1195 (11th Cir. 2011). 

We review the district court’s denial of an evidentiary hearing in a § 2255 

proceeding for abuse of discretion. Winthrop-Redin, 767 F.3d at 1215. 

III. DISCUSSION

A. The Ineffective-Counsel Claim

On appeal, Capshaw argues that his counsel rendered ineffective assistance 

by failing to object to the admission of cell phone records at trial. To prevail on an 

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ineffective-assistance-of-counsel claim, Capshaw must show that: (1) counsel’s 

performance was deficient; and (2) the deficient performance prejudiced his 

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 

(1984). Capshaw bears the burden of proof on both prongs of an ineffectivecounsel claim. Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). To 

prove deficient performance, Capshaw must show that counsel’s performance fell 

below an objective standard of reasonableness, as measured by prevailing 

professional norms. Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 

2000) (en banc). We need not “address both components of the inquiry if 

[Capshaw] makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 

104 S. Ct. at 2069. 

Capshaw cannot establish that his attorney’s performance was deficient for 

failing to object to the admission of cell phone records. His trial counsel would not 

have prevailed on such an objection under the governing law, and thus counsel’s 

performance was not deficient for failing to object.

It is undisputed that the government obtained a court order, under 18 U.S.C. 

§ 2703, requiring Sprint Nextel to produce the cell phone records of Capshaw and 

three other people to show calls between them during the period of the murder-forhire plot. Obtaining those telephone records through a § 2703 court order did not 

violate the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 743-44, 99 

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S. Ct. 2577, 2582 (1979) (holding that telephone company records of calls made 

from a defendant’s home did not require the government to seek a search warrant). 

Capshaw had no reasonable expectation of privacy in these Sprint Nextel

records. Regardless of any subjective expectation (about which we have no 

evidence), it was unreasonable for Capshaw to assume that information about his 

cell phone calls could not be made available to the government by the third-party 

telephone company. See id. at 744, 99 S. Ct. at 2582. (“When he used his phone, 

petitioner voluntarily conveyed numerical information to the telephone company 

and ‘exposed’ that information to its equipment in the ordinary course of 

business.”); see also Rehberg v. Paulk, 611 F.3d 828, 843 (11th Cir. 2010) (holding 

that defendant lacked reasonable expectation of privacy in phone and fax numbers 

dialed).

At Capshaw’s trial, the cell phone records were introduced to show

Capshaw’s use of a “facility of interstate commerce” in the course of his murderfor-hire plot. The records introduced also contained the assigned numbers of the 

cell phone towers used to route Capshaw’s calls. Capshaw, however, makes no 

specific argument about historical location information drawn from these tower 

numbers. This is not surprising, because the government did not seek to admit 

Capshaw’s cell phone records to prove his location, but only to prove he used a 

cell phone to arrange the murder-for-hire of his wife.

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At the time of Capshaw’s trial, no Supreme Court or Eleventh Circuit law 

required the government to seek a search warrant for the cell phone records 

procured in this case. Rather, the government was required, by statute, to procure 

a court order under 18 U.S.C. § 2703. It did so. Though not available to 

Capshaw’s counsel at the time, this Court’s binding precedent confirms that the 

claim Capshaw says his counsel should have raised had no merit back in 2011 and 

has no merit now. See United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) 

(en banc) (“Following controlling Supreme Court precedent[,] . . . we hold that the 

government’s obtaining a § 2703(d) court order for production of [a cellular 

telephone company’s] business records . . . did not constitute a search and did not 

violate the [defendant’s] Fourth Amendment rights.”).

Thus, counsel was not ineffective for failing to raise this issue. See

Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel is not ineffective 

for failing to argue a meritless claim); United States v. Winfield, 960 F.2d 970, 974 

(11th Cir. 1992) (same).

We recognize that, at trial, the government introduced not only Capshaw’s 

cell phone records, but also the cell phone records of the other individuals to whom 

Capshaw made calls in furtherance of his murder plot. The Supreme Court has 

consistently held that Fourth Amendment rights may not be vicariously asserted.

Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 966-67 (1969). 

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Capshaw thus lacked the necessary standing to challenge the introduction of the 

cell phone records of the other individuals. Assuming Capshaw successfully 

challenged the introduction of his own cell phone records, the same evidence 

(demonstrating his use of a telephone in his murder-for-hire plot) was introduced 

through other means. Counsel’s performance was not deficient for this reason 

also.

B. Public Access to Voir Dire

On appeal, Capshaw also argues that his Sixth Amendment right to a public 

trial was violated because the courtroom was closed to the public during his jury 

selection proceedings. 

The Sixth Amendment provides that “[i]n all criminal prosecutions, the 

accused shall enjoy the right to a . . . public trial.” U.S. Const. amend. VI. The 

Supreme Court has held that this public-trial right extends to voir dire. Presley v. 

Georgia, 558 U.S. 209, 213, 130 S. Ct. 721, 724 (2010). “The denial of a 

defendant’s Sixth Amendment right to a public trial requires some affirmative act 

by the trial court meant to exclude persons from the courtroom.” United States v. 

Al-Smadi, 15 F.3d 153, 155 (10th Cir. 1994); see also United States v. Brazel, 102 

F.3d 1120, 1155 (11th Cir. 1997) (examining a district court’s affirmative 

imposition of a requirement that all persons show identification before entering the 

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courtroom and affirming the denial of the defendant’s objection to that “partial 

closure”).

Where a district court affirmatively decides to close a trial to the public, the 

Supreme Court requires the district court to follow procedures to ensure the 

balancing of interests. A complete closure of proceedings is only justified where: 

(1) the party seeking to close the trial advances an overriding interest that is likely 

to be prejudiced; (2) the closure is no broader than necessary to protect that 

interest; (3) the trial court has considered reasonable alternatives to closure; and (4) 

the court makes findings adequate to support the closure. Waller v. Georgia, 467 

U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984). Where proceedings are only partially 

closed by the affirmative decision of the district court, the test is less stringent, 

requiring the court to find only a “substantial,” rather than a “compelling,” reason 

to justify a partial closure. Brazel, 102 F.3d at 1155.

Here, there is no evidence that the alleged exclusion was ordered, known, or 

ratified by the trial judge. Indeed, the trial record shows that no party or attorney, 

much less the trial judge, mentioned or knew about any courtroom closure. There 

is not even any allegation that the district court judge affirmatively decided to close 

voir dire to the public. To the contrary, the affidavits state that court security 

personnel refused entry to Capshaw’s relatives. Under the particular factual 

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circumstances of this case, the alleged exclusion of the affiants cannot be imputed 

to the trial judge.

2

There was thus no constitutional error by the district court and also no abuse 

of discretion in the denial of an evidentiary hearing. 

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s order denying 

Capshaw’s motion to vacate under § 2255.

AFFIRMED.

 2

Further, Capshaw never raised an objection about the alleged exclusion before adding 

this claim in the amendment to his § 2255 motion—after his case had passed through the entire 

direct-review process. Indeed, Capshaw’s claim would already be procedurally defaulted had the 

government appropriately raised such an argument. The government did not properly raise 

procedural default, as it acknowledges, and so we do not consider the late arrival of this claim 

except insofar as it bore on the ability of the district court to clarify or cure any alleged harm 

created by the exclusion of Capshaw’s family members from the voir dire.

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