US v. Matthew Mason

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00030-JPB-JES-2,3:11-cv-00060-JPB-JES Copies to all parties and the district court/agency. [999282108].. [13-6594]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6594

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW QUINN MASON, a/k/a Q,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge.
(3:08-cr-00030-JPB-JES-2; 3:11-cv-00060JPB-JES)

Argued:

December 10, 2013

Decided:

January 23, 2014

Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wheeling, West Virginia, for Appellant.
Erin K. Reisenweber,
OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
ON BRIEF: William J. Ihlenfeld, II,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

this

case,

petitioner

Matthew

Quinn

Mason

raises

an

ineffective assistance of counsel claim on collateral review.
For

the

reasons

that

follow,

we

affirm

the

district

court’s

dismissal of his 28 U.S.C. § 2255 petition.

I.
Early in the morning of April 30, 2008, Mason and another
man,

known

in

the

record

only

as

“Tank,”

approached

Darryl

Clinkscale inside the Martinsburg, West Virginia Wal-Mart where
Clinkscale worked. After ascertaining that Clinkscale worked at
the Wal-Mart, the men remained in the store until he clocked out
for a break. Clinkscale exited the store, walked to his car, and
left for home. Mason and Tank also left the store and climbed
into

a

car

already

occupied

by

a

third

man,

Travis

Latta.

According to Latta, Tank asked Mason, who was driving, to follow
Clinkscale out of the parking lot.
Clinkscale

recognized

that

he

was

being

followed

and

attempted to evade his pursuers, which he succeeded in doing for
a short period. Once he arrived at his apartment complex and
turned off his headlights, however, the car containing the three
men pulled in behind him. At that point, Clinkscale drove out of
the

parking

lot,

and

Tank

and

Latta

both

opened

fire.

Some

bullets struck Clinkscale’s car but none hit him or disabled the
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vehicle. Clinkscale sped off in one direction and Mason drove
off in another to a nearby highway.
Mason

and

Latta

were

indicted

the

following

month

for

crimes arising from this episode. Tank was never identified. The
three count indictment charged Mason and Latta with conspiracy
to

retaliate

§§ 1513(f),
violation
property

against

a

witness

1513(a)(1)(A),
of

of

18 U.S.C.
another

in

in

violation

retaliation

§

against

1513(a)(1)(A),

retaliation

of

for

and

a

18 U.S.C.
witness

damage

witness

to

in
the

testimony

in

violation of 18 U.S.C. § 1513(b)(1). * The government alleged,
based partly on testimony from Clinkscale himself, that Mason
had participated in the shooting as retaliation for Clinkscale
having

testified

against

a

co-defendant

named

Cecil

Ray

in

August of 2007.
On

October

16,

2008,

the

government

served

notice

that

Clinkscale would testify about Mason’s ability to recognize him
from the time they served together in the Eastern Regional Jail
(“ERJ”) in 2007. On October 25, two days before the trial, the
government provided further notice that Clinkscale would testify
as to interactions between himself and Mason in the ERJ in the
days surrounding Clinkscale’s testimony at Ray’s trial. On the

*

Latta later entered a plea agreement with the government
and testified at Mason’s trial.

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first day of Mason’s trial, his attorney Lary Garrett objected
to the government’s use of this evidence, and noted that he had
seen it for the first time that morning. The district court
overruled Garrett’s objection, at which point the attorney asked
for time to confer with his client, which the court granted.
Garrett

did

investigate

not

move

to

Clinkscale’s

continue

claims

the

about

trial

his

in

order

interactions

to
with

Mason, and the trial went forward.
Clinkscale testified at trial that he had been in the ERJ
for three weeks in order to appear at Ray’s August 2007 trial.
ERJ housing records show that during a ten-day period within
those three weeks, from August 13, 2007 to August 23, 2007,
Clinkscale and Mason were housed in the same pod of cells. The
records
above

further
Mason’s.

indicate

that

Clinkscale

Clinkscale’s

testified

cell

to

three

was

directly

interactions

between himself and Mason that occurred in the ERJ. First, he
stated

that

Mason

threw

him

a

bar

of

soap

on

which

it

was

inscribed: “that dude from Philly is a snitch.” Clinkscale, like
Ray, was a Philadelphia native. Clinkscale also testified that
the

night

summoned

before

he

Clinkscale

took
to

his

the

stand

cell

to

in

Ray’s

speak

to

trial,
Ray,

Mason

who

was

standing on the other side of the window in the recreation yard.
While Mason stood by, Ray attempted unsuccessfully to persuade
Clinkscale to lie for him at trial. Finally, Clinkscale claimed
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that when he returned to his pod in the ERJ after testifying, an
inmate standing at the door to the adjacent pod remarked to a
gathered

group

of

inmates

that

Clinkscale

had

“told

on

somebody.” Clinkscale stated that he believed that Mason was
standing in the area when this announcement was made. Garrett
cross-examined Clinkscale as to these interactions.
The

government

presented

additional

evidence

beyond

Clinkscale’s testimony. It showed Wal-Mart surveillance footage
of the men interacting inside of the store, exiting the store,
and

leaving

the

parking

lot

in

their

two

cars.

Mason’s

co-

defendant Latta testified about events on the morning of the
shooting.

Various

law

enforcement

officials

also

provided

testimony regarding the events of the morning of the shooting
and related forensic evidence.
After

a

two-day

trial,

the

jury

convicted

Mason

on

all

three counts, and he was sentenced to 95 months on each, the
terms to run concurrently. Mason, still represented by Garrett,
appealed

to

this

court,

arguing

that

the

evidence

was

insufficient to support conviction and that the district court
abused its discretion when it admitted Clinkscale’s testimony
regarding his interactions with Mason in the ERJ. We affirmed
the district court. See United States v. Mason, 374 F. App'x 411
(4th Cir. 2010).

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In July 2011 Mason filed the instant § 2255 petition. The
district court denied relief. This court, however, vacated the
district

court’s

order

and

remanded

the

case,

noting

the

possible merit of the sole issue before the court now: whether
Garrett

failed

to

investigate

evidence

about

Clinkscale’s

interactions with Mason at the ERJ that could have been used to
impeach

Clinkscale’s

trial

testimony.

See

United

States

v.

hearing

to

Mason, 481 F. App'x 815, 818 (4th Cir. 2012).
Upon

remand,

the

magistrate

judge

held

a

determine, inter alia, whether Garrett had failed to perform the
proper

investigation.

The

magistrate

evaluated

exhibits

from

both Mason and the government regarding the housing arrangements
at the ERJ and heard testimony from Mason, Garrett, and a prison
official.
parties.

He
He

also
then

received

post-hearing

recommended

based

on

briefing
this

from

evidence

the
that

Garrett’s failure to investigate did not constitute ineffective
assistance

of

counsel.

The

district

court

adopted

the

magistrate’s report and dismissed Mason’s petition. Mason now
appeals.

II.
A.
We review a district court’s legal conclusions in denying a
§ 2255 petition de novo. See United States v. Nicholson, 611
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F.3d 191, 205 (4th Cir. 2010). Where a district court has held
an evidentiary hearing before ruling, we review its findings of
fact

for

clear

error.

Id.

The

question

of

whether

counsel’s

performance was constitutionally adequate is a mixed question of
fact and law that we review de novo. Id.
Claims for ineffective assistance of counsel are evaluated
under the familiar two-pronged test outlined in Strickland v.
Washington, 466 U.S. 668 (1984). A petitioner must show both
that

“counsel’s

prong”)

and

performance

that

“the

was

deficient”

deficient

(the

performance

“performance

prejudiced

the

defense” (the “prejudice prong”). Id. at 687. To satisfy the
performance prong, a petitioner must show that his counsel’s
performance “fell below an objective standard of reasonableness”
such

that

the

“counsel

was

not

functioning

as

the

‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. at 687,
688. The Supreme Court has recognized that, in order to avoid
“the distorting effects of hindsight,” courts should employ “a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” Id. at 689.
The prejudice prong requires the petitioner to demonstrate
“a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.”
Id.

at

question

694.
is

“In
not

assessing
whether

a

prejudice
court
7

can

under
be

Strickland,
certain

the

counsel's

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performance

had

possible

reasonable

a

no

effect

on

doubt

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the

outcome

might

have

or

been

whether

it

is

established

if

counsel acted differently.” Harrington v. Richter, 131 S. Ct.
770,

791

(2011).

Instead,

“[t]he

likelihood

of

a

different

result must be substantial, not just conceivable.” Id. at 792.
The Supreme Court counseled in Strickland that “there is no
reason for a court deciding an ineffective assistance claim . .
.

even

to

address

both

components

of

the

inquiry

if

the

defendant makes an insufficient showing on one.” Strickland, 466
U.S. at 697. Here, we need only discuss the prejudice prong, and
Mason’s failure to satisfy it, in order to resolve the appeal.
B.
Mason

contends

that

his

trial

counsel

performed

ineffectively when he failed to request a continuance in order
to investigate the facts surrounding the jailhouse interactions
of

Mason

and

Clinkscale.

This

lack

of

investigation,

he

contends, fell below the objective standard of reasonableness
demanded of trial counsel.
Mason argues that had Garrett performed this investigation,
he would have been able to successfully impeach Clinkscale’s
testimony because the housing records would have shown that the
interactions
occurred

when

to
or

which
as

he

Clinkscale
said

they

testified
did.

In

could

not

particular,

have
Mason

contends that the housing records show he was in the SHU on the
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Clinkscale

claimed

to

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have

interacted

with

Ray

from

Mason’s cell. According to Mason, this evidence would have shown
the jury that Clinkscale was providing false testimony. The jury
would have then proceeded to disregard Clinkscale’s testimony as
to Mason’s intent, leaving the prosecution without evidence of
this central element of the crime.
As

an

initial

matter,

the

housing

records

that

Garrett

allegedly failed to investigate were impeachment -- rather than
direct -- evidence. While there are times that a failure to
investigate

impeachment

evidence

can

satisfy

the

prejudice

prong, that is less likely to be the case than a failure to
investigate direct evidence. See, e.g., Hoots v. Allsbrook, 785
F.2d 1214, 1221 (4th Cir. 1986) (refusing to disturb a jury’s
guilty

verdict

investigate
witness).

in

certain
Moreover,

spite

of

methods
Mason’s

defense

for

counsel’s

impeaching

claim

is

a

key

further

failure

to

prosecution
weakened

by

counsel’s cross-examination of the witness at trial. See Tucker
v. Ozmint, 350 F.3d 433, 445 (4th Cir. 2003) (finding no showing
of

prejudice

where

counsel

had

exposed

some

weaknesses

of

a

witness’s testimony but not others). The record clearly shows
that Garrett vigorously questioned Clinkscale about the details
of his account and discrepancies between his trial testimony and
his previous statements. The jury had thus seen Clinkscale’s
credibility

questioned

and

his
9

testimony

challenged

on

the

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stand. Mason cannot show the necessary substantial likelihood
that

cross-examination

using

the

housing

records

to

impeach

Clinkscale would have changed the trial’s outcome.
Mason contends that if his trial counsel had only impeached
Clinkscale with the housing records, the government would have
lost

its

sole

evidence

of

retaliatory

intent,

which

was

a

required element of each offense for which Mason was convicted.
This

assertion,

however,

crumbles

under

the

weight

of

the

evidence. The magistrate judge held an evidentiary hearing on
this specific issue, and concluded that the housing records only
reinforced

Clinkscale’s

account.

The

district

court,

when

it

adopted the magistrate’s report and recommendation, also found
that the housing “arrangements appear to support Clinkscale’s
testimony.” J.A. 751.
We

are

undermine
Mason

not

more

spends

interactions

persuaded
than

a

they

good

could

not

that

the

housing

corroborate

deal

of

have

records

time

Clinkscale’s
arguing

happened

that

exactly

how

tend

to

testimony.
particular
and

when

Clinkscale said they did. But there is a danger here in missing
the forest for the trees. In focusing on the smaller details,
Mason misses what the magistrate judge and district court did
not: that the circumstances of his and Clinkscale’s housing in
the

ERJ

as

reported

in

the

records

are

consistent

on

a

fundamental level with the account in Clinkscale’s testimony.
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They were housed together in the same pod of the ERJ for a tenday period -- a period shortly before Ray’s trial. Clinkscale’s
cell was directly above Mason’s, and the men were given free run
of their pod during much of the day. Mason’s cell bordered the
recreation yard and had a window through which it was possible
to

communicate

with

someone

in

the

yard.

And

in

a

prison

environment, where information about who has testified or is
about

to

testify

against

a

co-defendant

circulates

rather

freely, it is not difficult to believe that Mason would have had
knowledge

of

Clinkscale’s

status

as

an

informer.

See,

e.g.,

Lewis v. Jeffers, 497 U.S. 764, 766 (1990) (describing how a
defendant heard, while in jail, that an associate was providing
the police information about him); United States v. Kibler, 667
F.2d

452,

453

(4th

Cir.

1982)

(noting

that

a

defendant

threatened a potential government witness with the warning that
“snitches get hurt . . . even in jail”). Thus, even if Garrett
had been able to impeach Clinkscale using the housing records,
there is nothing approaching a substantial likelihood that the
jury would have rejected Clinkscale’s testimony to the extent
necessary to produce a different outcome.
Furthermore,

contrary

to

Mason’s

assertions,

there

was

evidence of Mason’s intent outside of Clinkscale’s testimony.
Mason’s codefendant Latta testified at trial that Tank angrily
claimed to Mason and Latta that Clinkscale was an informer as
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they pursued Clinkscale from the Wal-Mart parking lot. There is
no

indication

in

the

record

that

Clinkscale

ever

testified

against anyone besides Ray, and in fact no other known motive
for the violence against Clinkscale was suggested. The Wal-Mart
surveillance cameras show Mason and Tank approaching Clinkscale
in the store and then following him out of the parking lot,
which could certainly have persuaded the jury that the men were
seeking out Clinkscale for a reason. And although Latta claimed
at trial not to know why the men were following and firing shots
at Clinkscale, the government impeached him with his recorded
statement from the morning of the shooting, in which he stated
that Mason told him to shoot at Clinkscale and that Clinkscale
had put Ray in prison. While this impeachment evidence was not
admitted

for

its

truth,

it

was

sufficient

to

cast

doubt

on

Latta’s denial of any knowledge of Mason’s intent.
In sum, the jury had ample reason to doubt that this was
just a random act of violence. The evidence in the aggregate
suggests that the three assailants were targeting Clinkscale in
particular.

And

again,

Mason

has

not

offered

a

single

alternative explanation for the shooting. He simply never put
another

possible

motivation

for

his

actions

into

play,

thus

giving the jury less reason to doubt the prosecution’s case. In
short, Mason has not established the prejudice that Strickland

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requires,

and

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the

judgment

of

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the

district

court

must

be

affirmed.
AFFIRMED

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