                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             2
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.



                                                        3
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

                                              4
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).



                                            5
     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

                                                6
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

                                               7
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

                                                    8
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

                                            9
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.

                                                     10
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

                                           11
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



                                         12
requires,   and   the   judgment   of   the   district   court   must   be

affirmed.

                                                                 AFFIRMED




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