2255 petitioner gets an evidentiary hearing on his motion to withdraw his guilty plea after he discovered the affiant, who he’d previously complained to all was a “dirty cop,” actually lied on the search warrant affidavit back in 2015. At serious issue was the fact the government argued two versions of the “truth” in the case. “But, there cannot be two sides to the truth. The truth is the truth. Nonetheless, in this case the Government proffers two versions.” The cop was prosecuted, too, and the government argued his misconduct potentially affected 1700 convictions. Discovery and evidentiary hearing granted. United States v. Paylor, 2023 U.S. App. LEXIS 33243 (4th Cir. Dec. 15, 2023). (Apparently the USAO involved has no shame? They should have resolved this case without an appeal to avoid this outcome, but they did not. Outrageous.)
This case presents the extraordinary circumstance in which the Government has taken antithetical stances supporting two completely different versions of the truth relative to Appellant’s offense of conviction. But, there cannot be two sides to the truth. The truth is the truth. Nonetheless, in this case the Government proffers two versions.
In 2015, Appellant pled guilty to being a felon in possession of a firearm. At Appellant’s plea hearing, the Government attorney — an officer of the court — averred that Appellant was, in fact, guilty of possessing a firearm. Specifically, the Government told the court:
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.
J.A. 49. Yet, before the 2017 grand jury, the Government made an about face and — again under oath — offered Appellant’s testimony that the officers involved in his arrest planted the firearm and stole money from him. In doing so, the Government offered Appellant’s account of his arrest as evidence of Detective Hersl’s corruption. In front of the grand jury, the Government — through Appellant’s testimony — explicitly disavowed Appellant’s plea agreement. See J.A. 1694-95 (The Government: “But to be clear, the testimony you’ve given today to the grand jurors is truthful and complete and accurate testimony?” Appellant: “Yes.”). Indeed, the Government was so supportive of Appellant’s grand jury testimony that it went so far as to move the court pursuant to Rule 35 for a substantial reduction of Appellant’s sentence. In making a Rule 35 motion on Appellant’s behalf, the Government certified that the information Appellant provided was helpful and accurate. Historically, Rule 35 motions are quite rare. …
But now that Appellant seeks to have the same conviction vacated, the Government claims that Appellant’s original plea — the same plea the Government disavowed in prosecuting Detective Hersl — is, in fact, accurate. What? The Government cannot have it both ways. There is only one truth.
In attempt to support its shifting position, at oral argument the Government contended, “The record shows that, with one exception, every known instance of criminal misconduct by [Detective] Hersl happened after [Appellant]’s guilty plea.” See Oral Argument at 13:04-12,
United States v. Paylor, (4th Cir. Mar. 12, 2021),
https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments. Let’s test that statement.. . .
Moreover, the Government specifically argued in its closing argument at the trial and conviction of Detective Hersl, “What investigators learned, to their surprise, was when they looked at Defendant Hersl’s conduct before he joined the GTTF, he was also robbing civilians in the previous unit he served with.” Id. at 1715. While the record is not clear exactly when Detective Hersl joined the GTTF, the indictment against Detective Hersl alleges that he “was assigned to the GTTF not later than April 28, 2016.” Id. at 1142. The Government’s two-faced positions and contrary statements before the court are clearly at odds with the notion of justice. When a party changes position in front of the court, its “previous position undermines the credibility of [its] current argument.” Pennsylvania Nat. Mut. Cas. Ins. Co. v. Roberts, 668 F.3d 106, 117 (4th Cir. 2012). This is particularly amplified when that party is the Government, whose role is to assure that justice is done.
. . .
However, as Appellant points out, since the time of his 2015 guilty plea, it has come to light that Detective Hersl’s misconduct was far more pervasive than Appellant — or anyone — could have known at the time. Indeed, in the course of the 2017 trial that led to Detective Hersl’s conviction, the Government argued that Detective Hersl’s misconduct dated back several years prior to the indicted conduct of Detective Hersl — and impacted nearly 1,700 convictions. See J.A. 1733. In addition to the Government itself arguing outright that Detective Hersl’s misconduct predated the robbery of Jimmie Griffin in 2014, J.A. 1715 (“[W]hen [investigators] looked at Defendant Hersl’s conduct before he joined the GTTF, he was also robbing civilians in the previous unit he served with.”), it is a far reach to conclude that Detective Hersl amassed 1,700 tainted convictions between 2015 and 2017 — the time between Appellant’s guilty plea and Detective Hersl’s removal from the GTTF. This is strong evidence that Detective Hersl’s crime spree pre-dated his alleged misconduct against Appellant in this case.
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.
