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Fourth Circuit: Defendant Entitled to Discovery and Evidentiary Hearing on § 2255 Petition to Withdraw Guilty Plea Because It Was Not Knowingly and Voluntarily Made

by Richard Resch

The U.S. Court of Appeals for the Fourth Circuit vacated the U.S. District Court for the District of Maryland’s order and remanded for discovery and an evidentiary hearing on Kenyon Paylor’s petition to vacate his guilty plea, which alleged his plea was induced by egregious police misconduct of the arresting officers and that he would not have entered a guilty plea had he been aware of the pervasive corruption of Baltimore Police Detective Daniel Hersl.


Before the Court was the appeal of Paylor in connection with his petition pursuant to 18 U.S.C. § 2255. He sought to vacate his federal conviction for being a felon in possession of a firearm, arguing that his guilty plea was not knowing and voluntary. Specifically, Paylor contended that on January 2, 2014, four Baltimore police officers—Detectives Hersl, John Burns, Timothy Romeo, and Jordan Moore—falsely arrested him for being a felon in possession of a firearm.

Paylor insisted from the beginning of his case that the officers planted the firearm in a chair on his front porch and stole four to five thousand dollars from him during a search of his bedroom. Recorded phone calls from jail captured Paylor telling his sister about the “money that the police took,” yet they reported that they recovered only $94. Paylor had prior experience with Hersl. He asserted that he knew Hersl to be a dirty cop, who had previously planted evidence on him.

Procedural History

In the present case, Paylor 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. The District Court allowed him limited discovery and performed an in camera review of 30 complaint-related files on the arresting officers, but the District Court subsequently allowed disclosure of only four-and-a-half of the 30 files the Baltimore Police Internal Affairs Division provided for review by the District Court.

Paylor’s defense counsel advised him to plead guilty because counsel did not believe only four complaints were enough to establish a pattern of corruption by Hersl in order to discredit his testimony about Paylor’s arrest. A plea bargain offered the potential for a previous 15-year state sentence for a parole violation be reduced to time served, and Paylor would receive credit for 60 months on the federal charge, which carries a 10-year sentence.

About two years later, a federal grand jury returned an indictment against Hersl, charging him and six other officers with numerous crimes, including racketeering, Hobbs Act robbery, and extortion spanning the time period between 2014 and 2016 in relation to the arrest of four different men. Hersl was sentenced to 18 years of imprisonment. His convictions and sentence were affirmed on appeal to the Fourth Circuit.

On March 12, 2018, Paylor filed a petition pursuant to 28 U.S.C. § 2255 seeking to withdraw his guilty plea and vacate his conviction. He alleged that had he known about the rampant, widespread misconduct of the now-disgraced Hersl, he would not have pleaded guilty. The District Court dismissed Paylor’s petition on the merits and did not allow him discovery or an evidentiary hearing. It subsequently denied the petition, ironically reasoning that Paylor failed to provide sufficient evidence to show that information regarding Hersl’s misconduct materially affected his decision to plead guilty, despite the fact he was not afforded the opportunity to gather such evidence. Paylor timely appealed.


The Court began its analysis by noting that guilty pleas are important components of the criminal justice system and must be “accorded a great measure of finality.” United States v. Akande, 956 F.3d 247 (4th Cir. 2020). However, in order for a guilty plea to be constitutionally valid, the Court stated that the plea “must be knowingly and voluntarily made.” United States v. Fisher, 711 F.3d 460 (4th Cir. 2013). Further, it is not possible for a guilty plea to be knowingly and voluntarily made if “the defendant has been misinformed as to a crucial aspect of his case.” Id. Although the solemnity of a defendant’s declarations in open court affirming a plea agreement “carry a strong presumption of” truthfulness, United States v. White, 366 F.3d 291 (4th Cir. 2004), the Supreme Court has instructed that such pleas are not categorically immunized against collateral attack. Blackledge v. Allison, 431 U.S. 63 (1977).

However, absent “extraordinary circumstances,” sworn statements made during a Rule 11 colloquy are deemed to be conclusively established, and “without holding an evidentiary hearing, [a District Court should] dismiss any § 2255 motion” that relies upon claims that contradict the statements made in the colloquy. United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005).

The Court observed that the Fourth Circuit applies the following two-part test to determine whether a guilty plea should be set aside as involuntary: the defendant “must show that (1) some egregiously impermissible conduct (say, threats, blatant misrepresentations, or untoward blandishments by government agents) antedated the entry of his plea and (2) the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.” United States v. Fisher, 711 F.3d 460 (4th Cir. 2013). The Fisher Court made it clear that the defendant’s miscalculation of the strength of the prosecution’s case does not satisfy the test. The Fisher Court instructed that the standard for the test is “whether there is a reasonable probability that [the defendant] would not have pleaded guilty, had he known of the impermissible government conduct.” Id.

Turning to the present case, the Court stated that the case involves the “extraordinary circumstance” of the Government espousing two “antithetical stances supporting two completely different versions of the truth relative to [Paylor’s] offense of conviction.” At Paylor’s plea hearing, the Government advised the court that Paylor placed a loaded handgun under a cushion of a chair on his front porch. However, before the grand jury that indicted the corrupt police officers, including Hersl, the Government introduced Paylor’s sworn testimony that the officers planted the gun and stole his money as evidence of their corruption. Additionally, the Government “explicitly disavowed [Paylor’s] plea agreement” before the grand jury, according to the Court. The Government was so supportive of Paylor’s testimony that it took the rare step of moving for a substantial reduction of his sentence under Rule 35, and in doing so, the Government certified that Taylor’s testimony was helpful and accurate.

Yet, in the current case, the Government once again argued that Paylor’s original guilty plea was accurate, which led the Court to state that the “Government cannot have it both ways. There is only one truth.” The Court was not amused by the Government’s tactics, chiding that the “Government’s two-faced positions and contrary statements before the court are clearly at odds with the notion of justice.”

Nevertheless, the Court agreed with the Government’s argument that Paylor failed to produce sufficient evidence to satisfy the Fisher standard for relief. Under Fisher, the relevant official misconduct is that which occurred prior to, not after, the defendant’s guilty plea. Hersl was convicted of robbing only a single person that occurred before Paylor’s guilty plea, and defense counsel had access to the internal affairs compliant in connection with that robbery. The Court explained that knowledge of that alleged (at the time of Paylor’s guilty plea, Hersl had not been convicted of any crimes) single occurrence of misconduct does not constitute “egregiously impermissible conduct” sufficient to satisfy the Fisher standard. Consequently, the Court stated that it cannot consider whether Paylor would have made a different decision regarding his guilty plea based on knowledge of events that occurred after he had already pleaded guilty, i.e., the many subsequent convictions of Hersl and the other arresting officers.

But importantly, the Court stated that its analysis was not concluded because Paylor has not yet been granted the “opportunity for discovery or an evidentiary hearing so as to produce the type of evidence necessary to demonstrate that the officers engaged in ‘egregiously impermissible conduct’” in his case. Because the District Court failed to hold an evidentiary hearing on the case, the Court explained that it must review the court’s denial of Paylor’s request for an evidentiary hearing or authorization of discovery under the standard governing motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. That is, the Court must accept Paylor’s allegations as true, and all reasonable inferences must be drawn in his favor. Gordon v. Braxton, 780 F.3d 196 (4th Cir. 2015).

The Court stated that the applicable standard in considering Paylor’s request is that unless “the motion and the files and records of the case conclusively [demonstrate] that the prisoner is entitled to no relief, the court shall … grant a prompt hearing….” § 2255(b); see United States v. Mayhew, 995 F.3d 171 (4th Cir. 2021). Furthermore, when evaluating a § 2255 petition, courts are required to consider it with reference to the record of the Rule 11 plea hearing, and summary dismissal is appropriate only if the allegations in the petition are “palpably incredible, [or] patently frivolous or false.” United States v. White, 366 F.3d 291 (4th Cir. 2004).


After examining Paylor’s petition and the record of the plea hearing, the Court concluded that the record does not conclusively show that Paylor is entitled to no relief. The Court reached that conclusion based on Paylor’s repeated and consistent attempts to raise “red flags” about Hersl as a “dirty cop” and his requests for records associated with that accusation prior to his guilty plea. He was provided with only four-and-a-half records out of 30 reviewed by the District Court. However, it turned out that Hersl’s corruption was even more pervasive than Paylor had known prior to pleading guilty; the Government subsequently argued that Hersl’s corrupt activities affected nearly 1,700 convictions and that his misconducted included a period of time that predated Paylor’s guilty plea. Thus, the Court held that the record does not conclusively show that Paylor is entitled to no relief.

Accordingly, the Court vacated the District Court’s dismissal of Paylor’s § 2255 petition and remanded for discovery and an evidentiary hearing. See: United States v. Paylor, 88 F.4th 553 (4th Cir. 2023).  

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