UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6101
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)
Submitted: May 29, 2012 Decided: June 5, 2012
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Matthew Quinn Mason, Appellant Pro Se. John Castle Parr,
Michael D. Stein, Assistant United States Attorneys, Wheeling,
West Virginia, Erin K. Reisenweber, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Quinn Mason seeks to appeal the district
court’s order adopting the magistrate judge’s recommendation to
deny his 28 U.S.C.A. § 2255 (West Supp. 2011) motion to vacate,
set aside, or correct his federal sentence. For the reasons
discussed below, we find that the district court’s procedural
conclusion is debatable and that Mason’s motion states two
debatable constitutional claims. Accordingly, we grant a
certificate of appealability, vacate the district court’s order,
and remand this case for further proceedings.
I.
Following a jury trial, Mason was convicted of
conspiracy to retaliate against a witness, retaliation against a
witness, damaging the property of another in retaliation for
testimony, and aiding and abetting the same, in violation of 18
U.S.C.A. § 1513(a)(1)(A), (b)(1), (f) (West Supp. 2012) and 18
U.S.C. § 2 (2006). Mason was sentenced to ninety-five months’
imprisonment on each count, to be served concurrently. We
affirmed Mason’s convictions and sentence on appeal. See United
States v. Mason, 374 F. App’x 411 (4th Cir. 2010).
Mason timely filed his § 2255 motion, raising a
multitude of grounds for his claim of ineffective assistance of
trial counsel and other issues. After receiving the
2
Government’s response to the motion, Mason replied, supplying
the facts and context necessary to frame his claims. The matter
was referred to a magistrate judge, who recommended that the
district court deny the motion in its entirety. The magistrate
judge’s report and recommendation advised Mason of his duty to
file timely written objections and warned Mason that the failure
to do so would result in a waiver of his right to appeal a
judgment based on the recommendation.
Mason, however, did not object. The district court
thus reviewed the report for clear error and found none.
Accordingly, the district court denied the § 2255 motion for the
reasons set forth in the magistrate judge’s report.
Mason timely noted an appeal and requested a
certificate of appealability. In this pleading, Mason asserted
that he was in the special housing unit during the objections
period, that “no paperwork was given to [him] during this
period,” and, therefore, he had “no opportunity to object” to
the magistrate judge’s report. (E.R. 718). 1 Mason asked the
court for leave to file late objections. The district court
denied a certificate of appealability without discussing Mason’s
1
Citations to the “E.R.” refer to exhibits located in the
compiled electronic record in this case.
3
proffered reason for his failure to object or his request for
leave to file late objections.
In his informal brief in this court, Mason reiterates
that he did not object to the magistrate judge’s report because
he was housed in administrative segregation and lacked access to
his legal papers. Mason does not assign error to any aspect of
the magistrate judge’s report.
II.
An appeal may not be taken to this court from the
final order in a proceeding under 28 U.S.C.A. § 2255 unless a
circuit justice or judge issues a certificate of appealability
(“COA”). 28 U.S.C. § 2253(c)(1)(B) (2006). Where, as here, a
district court denies a § 2255 motion on a procedural ground, a
COA will not issue unless the movant demonstrates both that (1)
any dispositive procedural rulings by the district court are
debatable or wrong and (2) the original motion raises a
debatable constitutional question. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).
Each component of the COA inquiry is mandatory, and a
court may dispose of the application if it is clear from the
record that a showing on either prong is lacking. Id. at 485.
A showing that there was an error in denying the motion on a
procedural ground is insufficient, absent a showing that the
4
underlying motion makes a substantial showing of the denial of a
constitutional right. Accord Owens v. Boyd, 235 F.3d 356, 358
(7th Cir. 2000); United States v. Martin, 226 F.3d 1042, 1046
(9th Cir. 2000).
It is well established that a litigant who fails to
timely object to a magistrate judge’s proposed findings of fact
and conclusions of law is not entitled to de novo review of the
magistrate judge’s determinations, 28 U.S.C.A. § 636(b)(1)(B)
(West 2006 & Supp. 2011), and waives his right to appeal the
district court’s order based on that recommendation. Wells v.
Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997). However,
this is a prudential rule, not a jurisdictional requirement,
United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984),
and the Supreme Court permits the courts of appeals to exercise
their discretion to permit appellate review, notwithstanding any
waiver, where the “interests of justice” are served. Thomas v.
Arn, 474 U.S. 140, 155 (1985).
Here, the magistrate judge’s report and recommendation
advised Mason of his obligation to object, as well as of the
consequences of a failure to do so. The report was sent to
Mason, via certified mail, at the proper correctional facility,
and the facility received the report. However, in his request
for a COA from the district court, Mason advanced a facially
5
viable excuse for his failure to object. This contention is
unaddressed in the record.
Given the district court’s silence in the face of
Mason’s proffered excuse for his failure to object, we are
constrained to hold that the district court’s resolution of this
pivotal procedural issue is debatable. Accordingly, we will
proceed to the second prong of the COA inquiry — whether the
underlying motion presents a debatable constitutional claim.
III.
Mason’s § 2255 motion raised multiple grounds for his
claim that his trial attorney, Lary Garrett, provided
constitutionally deficient representation, in violation of the
Sixth Amendment. To succeed on this claim, Mason bears the
burden of showing that (1) counsel’s performance was
constitutionally deficient and (2) such deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-
88, 691-92 (1984). To satisfy the first Strickland prong, Mason
must demonstrate that counsel’s performance fell below an
objective standard of “reasonableness under prevailing
professional norms.” Id. at 688. To satisfy the second
Strickland prong, Mason must do more than establish that any
unprofessional errors by counsel “had some conceivable effect on
the outcome of the [trial.]” Id. at 693. Indeed, he must
6
demonstrate “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
We conclude that two of the grounds for Mason’s
ineffective assistance of counsel claim have arguable merit.
First is Mason’s contention that Garrett failed to investigate
evidence that would have impeached the Government’s key witness,
Darryl Clinkscale, the victim of the retaliatory conduct. At
the heart of this issue is Clinkscale’s testimony regarding
three jailhouse interactions between himself and Mason, which
was offered by the Government “to prove [Mason’s] criminal
intent and motive to participate in the conspiracy to retaliate
against Mr. Clinkscale.” (E.R. 147).
The magistrate judge recommended denying relief on
this ground because Mason had not specified “what counsel could
have obtained” had he more thoroughly investigated potential
impeachment evidence. (E.R. 696). The record, however, belies
this proposed conclusion. In his reply to the Government’s
response, Mason clearly asserted that, had Garrett investigated
the matter, he would have discovered that Mason was not housed
in the jail’s general population at the time of the alleged
jailhouse interactions between himself and Clinkscale. If true,
this would have plainly impeached Clinkscale’s testimony, which
was critical to the Government’s case. Based on the record
7
presently available and because of the crucial role Clinkscale’s
testimony played in satisfying the Government’s burden of proof,
we conclude that this is a debatable claim of the denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); Slack, 529 U.S. at 484-85.
Finally, we find debatable Mason’s contention that
Garrett failed to convey to him the Government’s plea offer(s).
In his proposed disposition of this ground, the magistrate judge
framed Mason’s claim as being that Garrett did not convey a day-
of-trial plea offer, which Mason would have accepted. The
magistrate judge recommended denying relief, though, based
entirely on a letter from Garrett dated August 14, 2008.
Mason’s trial commenced on October 27, 2008.
It is impossible to evaluate whether the August 14
letter actually conveyed the then-available plea offer, as the
Government contends, or whether it simply offered a generalized
discussion of Mason’s sentencing exposure, as Mason contends,
because the letter is not part of the record. And while it is
not entirely clear from the record, if indeed Mason contends
that the Government made multiple plea offers that were not
communicated to him, 2 particularly one on the day of trial, then
2
We note that the Government did not definitively state
whether there were multiple plea offers.
8
exclusive reliance on the August 14 letter would be insufficient
to defeat this claim. These uncertainties, coupled with the
Supreme Court’s recent decision in Missouri v. Frye, 132 S. Ct.
1399, 1408 (2012), holding that “defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea
on terms and conditions that may be favorable to the accused,”
and that counsel’s failure to so communicate that offer amounted
to constitutionally deficient performance, compel our conclusion
that this too is a debatable claim of the denial of a
constitutional right.
For these reasons, we grant a certificate of
appealability, vacate the district court’s order, and remand
this case for further proceedings. On remand, the district
court should address Mason’s contention regarding his failure to
object and make any factual findings necessary to resolve
whether to allow Mason to file objections out of time. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
9