United States of America v. Keyon Paylon

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

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.