United States v. Matthew Mason

UNPUBLISHED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-00060-
JPB-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 against a witness in violation of 18 U.S.C.
§§ 1513(f), 1513(a)(1)(A), retaliation against a witness in
violation of 18 U.S.C. § 1513(a)(1)(A), and damage to the
property of another in retaliation for witness 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 not move to continue the trial in order to
investigate Clinkscale’s claims about his interactions 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 further indicate that Clinkscale’s cell was directly
above Mason’s. Clinkscale testified to three 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 before he took the stand in Ray’s trial, Mason
summoned Clinkscale to his cell to speak to Ray, 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.
Mason, 481 F. App'x 815, 818 (4th Cir. 2012).
Upon remand, the magistrate judge held a hearing to
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. He also received post-hearing briefing from the
parties. He then recommended based on this evidence 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 performance was deficient” (the “performance
prong”) and that “the deficient 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 694. “In assessing prejudice under Strickland, the
question is not whether a court can be certain counsel's
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performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been 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 to which Clinkscale testified could not have
occurred when or as he said they did. In particular, Mason
contends that the housing records show he was in the SHU on the
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night Clinkscale claimed to 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 in spite of defense counsel’s failure to
investigate certain methods for impeaching a key prosecution
witness). Moreover, Mason’s claim is further 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 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 not persuaded that the housing records tend to
undermine more than they corroborate Clinkscale’s testimony.
Mason spends a good deal of time arguing that particular
interactions could not have happened exactly how 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 ten-
day 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 the judgment of the district court must be
affirmed.
AFFIRMED
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