                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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




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