Remanding 2255 Proceeding for Hearing Regarding Scope of Investigator’s Misconduct

US v. Paylor: Paylor was charged with being a felon in possession of a firearm, based on evidence provided by Detective Daniel Hersl of Baltimore’s infamous Gun Trace Task Force (as seen in David Simon’s We Own This City). Paylor always claimed (in recorded phone calls from the jail) that the gun, recovered from under a cushion on his front porch, had been planted and that during the arrest Hersl and two other officers stole money from inside the home. After an unsuccessful motion to suppress, Paylor sought from the Government information about allegations of misconduct against Hersl, ultimate a handful of which were turned over. Paylor decided 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 the arrest. Paylor pleaded guilty and was sentenced to 60 months in prison.

Two years later, Hersl was charged (along with others) with extortion, robbery, and other offenses. As part of that case, Paylor testified before a grand jury about his arrest, which produced a superseding indictment against Hersl and a Rule 35 motion for Paylor, which he turned down because of the risk of retaliation from police, that the Government would not entirely vacate his conviction, and the short time left on his sentence. Hersl was eventually convicted on multiple counts after a trial in which the jury specifically found he had falsely arrested and robbed another suspect in circumstances similar to Paylor’s arrest.

Paylor filed a 2255 motion seeking to withdraw his guilty plea, arguing that Hersl’s misconduct “rendered his plea involuntary, and consequently, he should be permitted to withdraw it.” The district court denied the motion, without holding a hearing or permitting Paylor to engage in discovery, as only one of the proven acts of misconduct by Hersl occurred before Paylor’s arrest and it was part of the allegations disclosed to Paylor prior to his plea.

On appeal the Fourth Circuit ordered Paylor’s 2255 motion remanded to the district court. The court noted that in situations like Paylor a petitioner does not have to allege actual innocence, only that “there was egregiously impermissible conduct involved in his prosecution” such that “this misconduct influenced his decision to plead guilty.” The court scolded the Government for its vacillation in Paylor’s case – from arguing he was guilty of the offense, to arguing he was not due to Hersl’s misconduct, and then back to Paylor’s guilt in defending his 2255 motion. Turning to the evidence of Hersl’s misconduct, the court held that the relevant time frame was what happened prior to Paylor’s arrest and that, right now, that included only the incident that was part of Hersl’s guilty verdict (for that reason the court did not reverse the denial of Paylor’s motion). However, Paylor had demonstrated the need for discovery and an evidentiary hearing so that he could attempt to develop further evidence.