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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12873
                         Non-Argument Calendar
                       ________________________

    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(unpublished).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. 

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

his niece’s boyfriend Tate O’Neal. 

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. 

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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 one-

count 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, 

, 1287 (11th Cir. 2008). A claim of ineffective assistance of

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

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

§ 2255. Winthrop-Redin v. United States, 

, 1215 (11th Cir. 2014).

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

States, 

, 1195 (11th Cir. 2011).

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

proceeding for abuse of discretion. 

.

                                 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, 

, 687, 

, 2064

(1984). Capshaw bears the burden of proof on both prongs of an ineffective-

counsel claim. Johnson v. Alabama, 

, 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, 

, 1313 (11th Cir.

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

[Capshaw] makes an insufficient showing on one.” 

,

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-for-

hire plot. Obtaining those telephone records through a § 2703 court order did not

violate the Fourth Amendment. See Smith v. Maryland, 

, 743-44, 99


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, 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 

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, 

, 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 murder-

for-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, 

, 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, 

, 917 (11th Cir. 2001) (counsel is not ineffective

for failing to argue a meritless claim); United States v. Winfield, 

, 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, 

, 174, 

, 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, 

, 213, 

, 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, 

, 155 (10th Cir. 1994); see also United States v. Brazel, 

, 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, 

, 48, 

, 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. 

.

      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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