Case Number: 19-7861

Judge: Before GREGORY and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Plaintiff's Attorney: Peter Jeffrey Martinez

Defendant's Attorney: Debra Loevy

Description: Keyon Paylor (“Appellant”) filed a petition pursuant to 18 U.S.C. § 2255, seeking
to vacate his conviction for being a felon in possession of a firearm and asserting that his
guilty plea was not knowing and voluntary. Specifically, Appellant contends that the law
enforcement officers involved in his arrest planted the firearm and stole thousands of
dollars from him and that his plea was induced as a result of egregious law enforcement
misconduct. Appellant asserts that had he known about the rampant, widespread
misconduct of now-disgraced Detective Daniel Hersl (“Detective Hersl”), he would not
have pled guilty.
The district court denied Appellant’s petition without providing discovery or an
evidentiary hearing. Ironically, the district court held that Appellant did not produce
enough evidence to establish that information regarding former Detective Hersl’s
misconduct materially influenced Appellant’s decision to plead guilty.
For the reasons detailed herein, although we cannot conclude at this juncture that
Appellant has produced evidence sufficient to establish that his guilty plea was not
knowing and voluntary, we conclude that Appellant is entitled to discovery and an
evidentiary hearing in order to attempt to gather such evidence. Accordingly, we vacate
the district court’s order and remand for discovery and an evidentiary hearing on
Appellant’s § 2255 petition.
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I.
A.
Arrest
On January 2, 2014, four Baltimore police officers -- Detectives Hersl, John Burns,
Timothy Romeo, and Jordan Moore -- arrested Appellant for being a felon in possession
of a firearm. The officers aver that on the day of the arrest, they were in an unmarked car
when they observed Appellant walking down the street. The officers claim that when
Appellant noticed the officers, he quickened his pace, ran to the front porch of his
residence, removed a black metallic object from the waistband of his pants, and placed it
under the cushion of a chair on his front porch. The officers then pursued Appellant into
his house, handcuffed him, and escorted him back onto the front porch. At that point,
Detective Moore lifted up the seat cushion from the front porch chair and recovered a black,
.45 caliber semi-automatic handgun. Detectives Romeo and Moore then proceeded to
arrest Appellant.
B.
Jail Phone Calls
Since his arrest, Appellant has consistently disputed the officers’ version of events
and maintains that the officers planted the gun. Appellant also contends that while
Detectives Romeo and Moore arrested him outside on the front porch, Detective Burns
went upstairs to Appellant’s bedroom, rummaged through his dresser drawers, and stole
$4,000–$5,000 in cash.
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Immediately following his arrest, Appellant made two phone calls to family
members from a recorded jail phone. During these phone calls, Appellant relayed his
version of the arrest to his family members. He discussed the “money that the police took,”
and told his sister how officers dug through his dresser drawers and stole thousands of
dollars in cash, yet only reported that they recovered $94. J.A. 1597, Call 1, at 4:46–5:56.1

He alleged, “Hersl and them took my money” and “they went through my clothes and took
my [expletive] money.” Id. at 10:46. During this phone call, Appellant also noted that he
had previously called his mother from the jail, and his mother told him that his money was
not there and all of his clothes from his dresser were on the floor. See id. at 11:30–40.
C.
The Case Against Appellant
1.
On June 4, 2014, a grand jury indicted Appellant, charging him with one count of
possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Although four
officers were present at Appellant’s arrest, only Detective Hersl filed an arrest report
documenting the law enforcement version of the events of January 2. Thus, the
Government’s case against Appellant hinged on Detective Hersl’s account.
Notably, Appellant had prior experience with Detective Hersl. Appellant asserts
that he knew Detective Hersl to be a dirty cop who had previously planted evidence on
Appellant. According to Appellant, when Appellant was just 13 years old, Detective Hersl
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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stopped him, placed him in handcuffs, and put him in the back of a police car with another
officer. After Detective Hersl searched the surrounding alleyways where he had stopped
Appellant and failed to find any evidence of criminal activity, the officers began to drive
away with Appellant still in the back of the police car. Detective Hersl’s partner then
opened the glove compartment of the police car and pulled out an envelope with 25 heroin
pills. Appellant was then charged with possession of the drugs that were pulled from the
glove compartment of the police car. But, Appellant went to trial and was acquitted.
Fast forward to the case at hand. In this case, Appellant filed a motion to suppress
the gun he was charged with possessing, arguing that the evidence should be suppressed
because the officers lacked reasonable suspicion or probable cause to search him or his
home. To support his motion and in preparation for trial, Appellant sought discovery. In
particular, in an attempt to demonstrate a pattern of corruption by Detective Hersl,
Appellant made a request to the Government for “any and all Baltimore City Police
Department/Justice Department/U.S. Attorney’s Office files/records for all of the officers
involved in the investigation and arrest of Keyon Paylor in search of any complaint of
misconduct, civilian or departmental.” J.A. 159. Appellant’s request specified that the
Government should “pay particular attention to any allegation of or involving official
misconduct, excessive use of force, false statements, misrepresentations, stealing,
misappropriation, or any dishonest act that could, at minimum, affect a fact-finder’s
evaluation of the credibility of the officer.” Id. (emphasis in original). In response, the
Government turned over 30 Internal Affairs Division (“IAD”) files relating to complaints
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against Detective Hersl for in camera review by the district court. After review, the district
court allowed disclosure of only four and a half of the IAD files.
Ultimately, Appellant’s defense counsel advised Appellant to plead guilty because
counsel did not believe only four complaints were enough to establish a pattern of
corruption by Detective Hersl in order to discredit his testimony about Appellant’s arrest.
See J.A. 179–80, Written Declaration by Brendan Hurson (“I knew that I was not given,
and thus did not possess, sufficient information to mount a successful challenge to the
officers’ accounts of Mr. Paylor’s arrest. Without concrete evidence of Det[ective] Hersl’s
willingness to lie under oath, I believed the Government’s case against Mr. Paylor – which
hinged entirely on witness credibility – was strong.”).
As a result of the federal indictment, Appellant was facing a statutory maximum
sentence of ten years (120 months) of imprisonment. Additionally, Appellant was on
parole for a state offense for which he received a 15 year suspended sentence. As a result
of the charge in the federal case, Appellant was also facing a reinstatement of the 15 year
sentence for the state charge. Part of Appellant’s plea deal with the Government here
included an agreement that Appellant would receive time served for the pending violation
in state court. And, not only would the potential 15 year state sentence be reduced to time
served, Appellant would receive credit for a 60 month sentence on the federal charges --
quite a favorable resolution for Appellant.
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2.
On April 21, 2015, Appellant pled guilty to being a felon in possession of a firearm
as charged in the indictment. After Appellant took an oath to testify truthfully, the
Government offered:
THE GOVERNMENT: If this matter proceeded to trial, the
government would prove the following facts beyond a
reasonable doubt. The government would prove that on the 2nd
of January, 2014, four officers of the Baltimore Police
Department encountered Mr. Paylor while driving in an
unmarked vehicle on 600 block of Bartlett Avenue in
Baltimore City. Upon seeing the officers, Mr. Paylor ran up the
stairs of 647 Bartlett Avenue. He then hopped the walls of two
adjoining porches.
When he reached the porch of 651 Bartlett Avenue, his
residence, Mr. Paylor withdrew from his waistband a Heckler
& Koch .45 caliber pistol bearing Serial Number 2509021. The
pistol was loaded with nine rounds, one of which was in the
chamber. After withdrawing the pistol from his waistband, Mr.
Paylor placed it underneath a seat cushion on his front porch,
where it was late[r] recovered by law enforcement. Mr. Paylor
admits, Your Honor, that prior to January 2nd of 2014, he had
been convicted of a crime punishable by imprisonment for a
term exceeding one year and his civil rights had not been
restored. Mr. Paylor further admits that the firearm and
ammunition recovered from his residence were manufactured
outside the State of Maryland and therefore affected interstate
commerce.
The firearm was examined and found to be capable of
expelling a projectile by the action of an explosive. It was
therefore a firearm as defined in 18 USC Section 921(a)(3).
Similarly, the ammunition was examined and found to be
ammunition as defined in 21 USC Section 921(a)(17). Your
ellant’s

Outcome: As a result, we cannot say that the record “conclusively shows” that Appellant is
entitled to no relief. Accordingly, we vacate the order of the district court and remand for discovery and an evidentiary hearing.

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