USCA4 Appeal: 23-1566 Doc: 84 Filed: 01/06/2025 Pg: 1 of 26

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1566

GARY WASHINGTON,

Plaintiff - Appellant,

v.

THOMAS PELLEGRINI; OSCAR REQUER; HELEN FAHLTEICH, personal representative of Defendant Officer Richard Fahlteich’s estate,

Defendants - Appellees,

and

BALTIMORE POLICE DEPARTMENT; JOHN TEWEY; FRED CERUTI; JOHN MACGILLIVARY; UNKNOWN EMPLOYEES OF THE BALTIMORE POLICE DEPARTMENT; MAYOR AND THE CITY COUNCIL OF BALTIMORE,

Defendants.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:19-cv-02473-SAG)

Argued: October 30, 2024 Decided: January 6, 2025

Before NIEMEYER, THACKER, and QUATTLEBAUM, Circuit Judges. USCA4 Appeal: 23-1566 Doc: 84 Filed: 01/06/2025 Pg: 2 of 26

Reversed in part and affirmed in part by published opinion. Judge Thacker wrote the opinion in which Judge Quattlebaum joined. Judge Niemeyer wrote a separate opinion concurring in the judgment.

ARGUED: Renee Anne Spence, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Michael Patrick Redmond, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: Jon Loevy, Gayle Horn, Roshna Bala Keen, LOEVY & LOEVY, Chicago, Illinois, for Appellant. Ebony M. Thompson, City Solicitor, Kara K. Lynch, Jasmine England-Caesar, Office of Legal Affairs, CITY OF BALTIMORE LAW DEPARTMENT, Baltimore, Maryland, for Appellees.

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THACKER, Circuit Judge:

In 2018, Gary Washington (“Appellant”) was released from prison on a writ of

actual innocence after serving 31 years of incarceration for murder.

In the civil lawsuit that is the subject of this appeal, Appellant accused the police

officers who investigated the murder of coercing the prosecution’s sole eyewitness into

providing false testimony, which the witness later recanted. The district court granted the

police officers’ motion for summary judgment and dismissed Appellant’s claims alleging

violation of due process, malicious prosecution, detention without probable cause, failure

to intervene, and intentional infliction of emotional distress. It found that Appellant was

collaterally estopped from relying on the witness’s recantation in this case because another

state court had initially found that recantation incredible when denying Appellant’s

post-conviction petition for relief, despite the later in time state court ruling granting

Appellant a writ of actual innocence. The district court independently dismissed

Appellant’s alternative due process Brady claim on the merits. It additionally dismissed

Appellant’s intentional infliction of emotional distress claim on the independent ground

that Appellant failed to adduce sufficient evidence of severe emotional distress.

We hold that that the state court decision granting Appellant a writ of actual

innocence was inconsistent with the prior post-conviction ruling that the recantation by the

prosecution’s sole eyewitness was incredible, thereby precluding the application of

collateral estoppel. We additionally hold that applying collateral estoppel to prohibit

Appellant from litigating the alleged misconduct that led to his now vacated convictions is

incompatible with the equitable principles that underlie the doctrine. We agree with the

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district court’s disposition with respect to Appellant’s alternative due process claim

premised on a Brady violation. And, finally, we hold that the district court erred in

determining that Appellant failed to adduce sufficient evidence of severe emotional

distress.

Consequently, as detailed below, we reverse in part and affirm in part.

I.

A.

On December 27, 1986, at approximately 7:45 p.m., Faheem “Bobo” Ali, was shot

and killed outside of Appellant’s home in Baltimore, Maryland. In their investigation of

the murder, police officers Thomas Pellegrini, Oscar Requer, and Helen Fahlteich

(“Appellees”) interviewed a 12 year old bystander, Otis Robinson, who had seen the

shooting. Appellees obtained two statements from Robinson, signed by both him and his

mother, wherein Robinson asserted that Appellant had shot Ali:

I was walking up the street toward 24th Street, I heard [Appellant] and [Ali] arguing and [Appellant] asked about some money, and [Ali] said I’ll get it when I’m ready to get it. Then [Appellant] hit [Ali] in his jaw then he drawed [sic] his gun, and shot [Ali] then [Ali] ran across the street tripped on the curb and fell on the sidewalk.

J.A. 192. 1

On January 7, 1987, Robinson testified before a grand jury that he had seen

Appellant shoot Ali:

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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I saw [Appellant] and a boy named [Ali] arguing about some money and [Appellant] told him he better have his money and [Ali] say he will wait. And [Appellant] quickly hit him in his jaw and drawed [sic] a gun and he shot ‘em. Then [Ali] ran across the street and tripped on a curb at 2311 and [Appellant] tossed the gun he shot [Ali] with up on the roof.

J.A. 204. On February 4, 1987, the grand jury indicted Appellant on charges of first degree

murder and use of a handgun in the commission of a felony or a crime of violence.

A jury trial in the circuit court for Baltimore City began on June 5, 1987. Robinson

testified at the trial that he had seen Appellant shoot Ali. The parties do not dispute that

the prosecution’s case rested entirely on Robinson, who was its sole eyewitness. No other

witnesses corroborated Robinson’s testimony, nor did the prosecution provide any physical

or forensic evidence to connect Appellant to the crime.

In his defense, Appellant testified that he was inside his home at the time of the

shooting. He called the following witnesses to corroborate his account: (i) Nathaniel

Taylor, a neighbor, who testified that he saw Lawrence Thomas, and not Appellant, shoot

the victim; (ii) Ronald Brady, Appellant’s brother-in-law, who testified that he was with

Appellant at Appellant’s house before the shooting, but then proceeded outside of

Appellant’s house at which time Brady, like Taylor, saw Thomas shoot the victim; (iii)

Sheila Brady, Appellant’s sister, who testified that Appellant was in his home when the

shooting occurred; and (iv) Tangela Washington, Appellant’s other sister, who also

testified that Appellant was in his house when the shooting occurred. 2

2 As disclosed in his opposition to Appellees’ motion for summary judgment, Appellant testified in a 2022 deposition that he was in his home with Thomas and Brady (Continued)

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Crediting Robinson’s testimony, the jury convicted Appellant of first degree murder

and use of a handgun in the commission of a felony or a crime of violence. He was

sentenced to life in prison for the murder conviction and a twenty year consecutive sentence

for the handgun conviction.

B.

On August 2, 1996 -- when Robinson was an adult -- he issued his first retraction of

his testimony incriminating Appellant. He stated to a private investigator, hired by

Appellant, that Appellant did not shoot Appellee, and that he had only testified as such

because he was a “victim of Baltimore City Police Dep[artment].” J.A. 225. Robinson

informed Appellant’s investigator that he had provided false testimony because the

Baltimore Police had “threatened to take [him] away from [his] mother forever.” J.A. 226.

He asserted that he had decided to come forward and provide this information now because

“[he] couldn’t live with [him]self.” Id.

On February 24, 1997, Appellant filed a petition for post-conviction relief pursuant

to Maryland’s Uniform Post-Conviction Procedures Act, which entitles Maryland inmates

to collaterally attack their state court convictions for constitutional violations and other

enumerated errors. See

. Appellant alleged, inter alia,

on the night of the shooting. The three were using drugs together in the basement. Appellant attests that Thomas had to leave, so Brady showed him out while Appellant remained in the basement. Appellant further testified that when he went upstairs to put his drugs away, he saw that Thomas and Brady had left the front door open. When he walked to the door, he saw Thomas and Brady standing outside with Ali. Appellant testified that he then saw Thomas pull out a gun, hit Ali, and shoot him, before fleeing.

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that the state had violated his Fourteenth Amendment due process rights by coercing

Robinson into providing false testimony. The reviewing Baltimore City circuit court held

a hearing on Appellant’s petition, where Robinson testified once again.

Consistent with his written recantation, Robinson asserted that his prior

identification of Appellant as the person who shot Ali had been false. He asserted instead

that on the night of the murder, he had seen “three guys standing across the street . . . [i]n

front of [Appellant]’s house.” J.A. 1623. As he was walking by them, Robinson heard a

single gunshot. Contrary to his testimony at trial, Robinson informed the court that he did

not recognize any of the individuals.

Robinson testified that after the shooting, Baltimore City police officers came to his

home and took him and his mother to headquarters to be interviewed. There, Appellees

interviewed the 12 year old boy without his mother present. 3 Alone, Robinson told

Appellees that he had seen the shooting but could not identify any of the people he had

seen on the street at the time. He asserted that Appellees wrote his initial statement down,

but that he was never asked to sign it. Appellant alleges that this recorded but unsigned

statement was never disclosed to the defense.

Robinson asserted that Appellees then asked him if he knew Appellant and, when

Robinson confirmed that he did, asked him to identify Appellant based on a picture they

provided. When Robinson declined to identify Appellant as the shooter, Appellees accused

3 In a 2022 deposition, Appellant’s mother testified that her son had been crying when Appellees asked her to leave the room, and was still crying when she came back in. J.A. 2220 (“He was still the same, crying. He just kept -- he just kept crying.”).

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Robinson of lying: “[t]hat’s when they stated I was lying, I knew everything about the

murder, if I didn’t cooperate with them that I would never see my mother again.” J.A.

1630. Robinson protested to Appellees that he was telling the truth, but the officers “started

getting louder,” reiterating that Robinson was “lying.”

. The officers told

Robinson that “they knew [Appellant] did it and all they needed was my help.”

.

Robinson asserted that the officers again showed him the picture of Appellant, and

asked Robinson to confirm that he was the shooter. At this point, Robinson conceded that

Appellant was the shooter. He testified to the Baltimore City circuit court that he changed

his position at that time because he was “scared” and knew that Appellees would not “let

[him] go unless [he] cooperated with them.” J.A. 1633. He explained that Pellegrini and

Fahlteich:

made me feel uncomfortable when I wanted to leave. I told them what I seen, they wasn’t trying to hear, and they just held me there against my will.

.

On December 10, 1999, the circuit court for Baltimore City denied Appellant’s

petition to set aside his conviction (hereinafter referred to as the “Post-Conviction

Decision”). The court dismissed Appellant’s due process claim on the ground that

Robinson’s recantation was incredible:

Before and throughout [Appellant]’s trial, Mr. Robinson maintained that his statement that [Appellant] was the one who committed the murder was true; Mr. Robinson gave that statement, which he and his mother signed, to the Police and repeated that statement as sworn testimony before the Grand Jury, during pretrial motions, and at [Appellant]’s trial. His identification of [Appellant] as the one who committed the

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murder remained unchanged throughout the entire trial process. Only today, over thirteen years later, does Mr. Robinson change his story.

J.A. 275–76. The Post-Conviction Decision was affirmed on appeal.

C.

Seventeen years later, on November 28, 2016, Appellant sought a writ of actual

innocence pursuant to Section 8-301 of the Maryland Criminal Code, which permits

defendants to petition a court to, among other things, set aside a verdict and grant a new

trial based on newly discovered evidence.

Once again, the circuit court for Baltimore City held an evidentiary hearing. And,

once again, Robinson testified both that he did not see the person who shot Ali, J.A. 2101

(“Q: Did you see anyone actually shoot this victim? A: No, sir.”), and that his prior

identification of Appellant was made under coercion and at the suggestion of Appellees.

Robinson testified that when the Baltimore City Police Department first came looking for

him as part of their investigation, they “told [his] mother if she didn’t have [him] back at

th[e] house within 24 hours [to speak with them], she wouldn’t see [him] again.”

. Robinson also reiterated that during the interview with Appellees he initially told

them that he could not identify the shooter, which Appellees recorded in an unsigned and

undisclosed statement. Robinson testified that Appellees then started “getting loud” and

threatened him:

[H]e stated that I was with the victim before the shooting, and I would be charged with first degree murder if I didn’t cooperate with him . . . At that point, I was shocked. I was shocked, and I was scared.

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. Appellees told Robinson that he would be “taken away from [his] mother,”

who “was [not] present in the room at that time.”

at 2109–10 (“I mean, I’m 12 years

old.”). Feeling scared, and in response to Appellees’ threats, Robinson identified Appellant

as the shooter.

(“It was out of fear . . . [fear of] [b]eing taken away from my

mother, being possibly charged with this homicide, according to the Baltimore City Police

Department.”).

In opposition to Appellant’s request for relief, the Government argued, inter alia,

that Appellant was collaterally estopped from re-litigating the allegations decided in the

Post-Conviction Decision. J.A. 374 (“In the [Post-Conviction Decision], [the court] found

that ‘Mr. Robinson’s testimony was incredible’ . . . [Appellant] essentially brings forth the

same allegations in his Petition for Writ of Actual Innocence, which has already been fully

and finally litigated.”).

On August 20, 2018, the Baltimore City circuit court granted Appellant’s petition

for a writ of actual innocence (hereinafter referred to as the “Innocence Decision”). The

Innocence Decision court determined that Robinson’s recantation was newly discovered

evidence and that there was a substantial or significant possibility that the jury would have

ruled differently if it had been presented as evidence at trial. The court noted that Robinson

was the “sole eyewitness” to the crime and amounted to “the State’s entire case.” J.A. 314.

Indeed, “[n]o other witnesses corroborated Robinson’s testimony . . . [Appellant] did not

confess and there was no DNA or fingerprint evidence[], or any other forensic evidence

introduced.”

Thus, the court deemed that “it seem[ed] irrefutable that the outcome of

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[Appellant]’s trial hinged completely on the credibility of 12 year old Otis Robinson.”

.

Additionally, the court highlighted the fact that Robinson had “recanted his trial

testimony on at least three occasions”: (i) when he was approximately 18 to 20 years old

in a statement to an investigator; (ii) when he was 24 years old at Appellant’s post-

conviction hearing; and (iii) when he was 42 years old at Appellant’s actual innocence

hearing. J.A. 315. Once he became an adult, Robinson “never wavered in his formal

withdrawal or renunciation of [his] prior testimony.”

(quotation marks omitted).

Accordingly, the court was “left with the inescapable conclusion that multiple recantations

of the uncorroborated testimony by the sole eyewitness in [Appellant’s] case have to create

a substantial possibility of a different result.”

at 315–16. “[B]ased on the Robinson

recantations,” the court vacated Appellant’s convictions and ordered a new trial.

.

Appellant was consequently released from prison after 31 years of incarceration.

On January 15, 2019, the State of Maryland dismissed the charges against him. In the

proceeding that is the subject of this appeal, Appellant testified that his treatment in prison

had been “inhumane,” and described such indignities as being subjected to strip searches,

cavity searches, being confined to his cell for 24 hours, being screamed at and thrown

against the wall by correction officers, and being housed with severely mentally ill inmates,

in addition to the pain of being separated from his family and subjected to an unrelenting

atmosphere of fear, distrust, and violence that attended his imprisonment. J.A. 621–27.

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D.

On August 27, 2019, Appellant filed a civil lawsuit in federal district court against

Appellees, the Baltimore Police Department (“BPD”), and the Mayor and City Council of

Baltimore, in the district of Maryland. 4

In the operative complaint, Appellant alleged (i) violation of due process pursuant

to

; (ii) malicious prosecution pursuant to § 1983; (iii) detention without

probable cause pursuant to § 1983; (iv) failure to intervene pursuant to § 1983; (v) violation

of Monell v. Dep’t of Soc. Servs. of City of New York,

(1978) pursuant to

§ 1983; (vi) malicious prosecution pursuant to state law; (vii) intentional infliction of

emotional distress; (viii) state law constitutional claims; and (ix) indemnification.

Appellant pled his due process claim in the alternative, alleging both a deprivation of

liberty caused by fabrication of evidence by a government officer and suppression of

evidence in violation of Brady v. Maryland,

(1963) (holding that

suppression of material evidence favorable to the accused violates due process).

In addition to Robinson’s prior recantations and testimony, Appellant now also

proffered evidence that Appellees had fabricated another identifying statement by a 13-

year-old witness, Rozetta Dorsey. Dorsey testified in a 2022 deposition that, on the night

of the shooting, she had been at a playground a block-and-a-half away and heard multiple

gunshots. Like Robinson, when Appellees brought Dorsey to headquarters for questioning,

4 John MacGillivary is deceased and no longer a party to this lawsuit. Appellant abandoned his claims against Fred Ceruti and John Tewey. The BPD, and the Mayor and the City Council of Baltimore are not party to this appeal.

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she told them that she could not identify the shooter. Nonetheless, when Appellees and

Dorsey’s mother told her to sign a statement that identified Appellant as the shooter, she

did so at their direction without reading or understanding the statement. J.A. 2579 (“I

didn’t know how to read it . . . Didn’t know how to read the statement, the words. I just

didn’t understand.”). Dorsey recanted her statement before trial and was not called as a

witness. Appellant asserts that Appellees’ notes of Dorsey’s original exculpatory

statements were not disclosed to the defense.

After the close of discovery, Appellees moved for summary judgment and the

district court granted their motion. It found that Appellant’s claims were collaterally

estopped by the Post-Conviction Decision and its factual finding that Robinson’s

recantation was incredible. In response to Appellant’s argument that the Innocence

Decision “overturned” the Post-Conviction Decision, the district court determined that the

two opinions were not contradictory because they addressed different issues: “[the

Innocence Decision] addressed the effect of a recantation—truthful or untruthful—on a

jury; whereas [the Post-Conviction Decision] addressed the truthfulness of that recantation

in the context of whether the officers had committed a constitutional violation.” J.A. 3825.

Moreover, the district court held that the Innocence Decision did not vacate any alleged

credibility determination the Baltimore City court made in the Post-Conviction Decision

regarding Robinson’s recantation, because that collateral post-conviction action was a

separate and independent proceeding.

Accordingly, the district court held that Appellant’s “challenge to the validity of

Robinson’s underlying statements and identifications [at trial] is collaterally estopped,

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meaning that the evidence from Robinson is properly considered in any assessment of the

probable cause [Appellees] had to charge or prosecute [Appellant].” J.A. 3827. On this

basis, the court dismissed Appellant’s claims for fabrication of evidence, malicious

prosecution, unlawful detention, failure to intervene, and intentional infliction of emotional

distress because each claim relied on the predicate allegation that Appellees lacked

probable cause. In the district court’s view, those claims were precluded by Robinson’s

original (and recanted) testimony.

E.

On Appellant’s alternative due process claim alleging a Brady violation, the district

court independently granted summary judgment because, in the view of the district court,

Appellant had adduced only speculative evidence that Appellant’s trial counsel did not in

fact receive the underlying Brady material. J.A. 3831–32. (“[Appellant] speculates that

had the exculpatory information been produced, his defense attorney would have used that

information as impeachment to question Robinson or [Appellees]. . . . However, he offers

no evidence to that effect.”).

As to Appellant’s intentional infliction of emotional distress claim, the district court

independently granted summary judgment, reasoning that Appellant had failed to

“adduce[] sufficient evidence of severe emotional distress.” J.A. 3836. And, the district

court dismissed Appellant’s state law constitutional claims as duplicative.

In sum, the district court dismissed Appellant’s claims of fabrication of evidence,

malicious prosecution, unlawful detention, failure to intervene, and intentional infliction

of emotional distress, based on its collateral estoppel ruling and the consequential

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determination that Appellees had probable cause to arrest and prosecute Appellant. The

district court dismissed Appellant’s Brady claim on the merits, and it independently

dismissed Appellant’s intentional infliction of emotional distress on the merits. Last, the

district court dismissed Appellant’s state constitutional claims as duplicative. 5

This timely appeal followed.

II.

We review an award of summary judgment de novo. T.H.E. Ins. Co. v. Davis,

(4th Cir. 2022). To be granted summary judgment, movants must

demonstrate that there is no genuine dispute of material fact and that they are entitled to

judgment as a matter of law. Gilliam v. Sealey,

(4th Cir. 2019) (citing

Fed. R. Civ. P. 56(a)).

III.

Pursuant to

, federal courts must give full faith and credit to state

court judgments. Gilliam v. Sealey,

(4th Cir. 2019). Additionally,

“Congress has specifically required all federal courts to give preclusive effect to state-court

judgments whenever the courts of the State from which the judgments emerged would do

so.”

(quoting Allen v. McCurry,

(1980)). Accordingly, “[t]he doctrines

of res judicata and collateral estoppel apply to § 1983 actions, and federal courts must

afford preclusive effect to issues which have been decided by state courts when the courts

of that state would do so.” Id.

5 Appellant abandons his state law constitutional claims on appeal.

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Relevant here, Maryland courts have established a four-part test for invoking

collateral estoppel when: (i) the issue decided in the prior adjudication is identical with the

one presented in the action in question; (ii) there was a final judgment on the merits; (iii)

the party against whom the plea is asserted is a party or in privity with a party to the prior

adjudication; and (iv) the party against whom the plea is asserted was given a fair

opportunity to be heard on the issue. Nat’l Union Fire Ins. Co. of Pittsburgh v. Fund for

Animals, Inc.,

(Md. 2017).

Among the varied exceptions to the collateral estoppel doctrine, it is black letter law

that a determination will not have preclusive effect when it is “itself inconsistent with

another determination of the same issue.” Restatement (Second) of Judgments § 29. This

rule has been adopted by Maryland courts. See, e.g., Rourke v. Amchem Products, Inc.,

(Md. Ct. Spec. App. 2003). Moreover, as Maryland courts have

recognized, the Supreme Court of Maryland “gives considerable, and at times, persuasive

weight to the position taken by the American Law Institute in Restatement (Second) of

Judgments.” Bryan v. State Farm Mut. Auto. Ins. Co.,

(Md. Ct. Spec.

App. 2012) (collecting cases). Therefore, in the application of the collateral estoppel

doctrine pursuant to Maryland law, we find that the exception for prior conflicting opinions

governs our disposition of this case.

Finally, as the Supreme Court of Maryland has recognized, the doctrine of collateral

estoppel is “based on two principles: judicial economy and fairness.” Garrity v. Md. State

Bd. of Plumbing,

(Md. 2016). And as we have recognized, courts should

not apply collateral estoppel where unfairness results. See Swentek v. Usair, Inc.,

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552, 561 (4th Cir. 1987) (“Collateral estoppel is appropriate where . . . preclusion does not

work an unfairness in the second trial.”). In the application of equitable doctrines such as

collateral estoppel then, courts must be cautious to ensure against inequitable results.

A.

Here, the district court found that, under “close scrutiny,” the determination by the

court in the Post-Conviction Decision that Robinson’s recantation was incredible was not

inconsistent with the later determination by the court in the Innocence Decision that

Robinson’s recantation created a substantial or significant possibility that a jury would not

convict Appellant. But both statements cannot rationally be true: if Robinson’s recantation

was incredible, no jury could have found differently than the one that convicted Appellant

based solely on Robinson’s testimony. By necessity, the court in the Innocence Decision

must have found that Robinson’s recantation had at least some degree of credibility.

Closer scrutiny underscores the implicit but necessary credibility determination

underlying the adjudication of a petition for a writ of actual innocence. To obtain relief

under Maryland’s actual innocence statute, a petitioner must produce newly discovered

evidence that: (i) speaks to their actual innocence; (ii) could not have been discovered in

time to move for a new trial under Maryland Rule 4-331; and (iii) creates a substantial or

significant possibility that the result may have been different. 6 See Smith v. State,

(Md. Ct. Spec. App. 2017).

6 There is no filing deadline for petitions for a writ of actual innocence pursuant to Maryland’s statute. See Hunt v. State,

(Md. 2021). Petitioners need (Continued)

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As the Supreme Court of Maryland has explained, the substantial or significant

possibility prong is simply a standard materiality analysis as is employed in Strickland or

Brady jurisprudence. 7 See Hunt,

(“Weighing the effect of newly

discovered evidence in an actual innocence proceeding involves substantially the same

inquiry as determining prejudice in the context of an ineffective assistance claim or

assessing whether Brady evidence is material.”); Faulkner v. State,

(Md.

2020) (“[T]he General Assembly intended courts to make actual innocence materiality

determinations in the same way that courts had long made materiality determinations in

other post-trial contexts.”). Accordingly, the test is whether, “if [the convicting] jury had

the benefit of the newly discovered evidence as well as the evidence that was before them,

would there be ‘a substantial or significant possibility that the result would have been

different[.]’” Smith,

(citation omitted).

only rely on newly discovered evidence that could not have been discovered in time to move for a new trial pursuant to Maryland Rule 4-331. 7 The Strickland and Brady doctrines were created by the United States Supreme Court to uphold Constitutional protections in criminal proceedings. See generally Strickland v. Washington,

(1984); Brady v. Maryland,

(1963). The Strickland doctrine entitles every criminal defendant to adequate legal representation at trial and in certain other criminal proceedings. The Brady doctrine enforces a due process obligation upon the state to disclose favorable evidence to the accused. Both doctrines include a materiality analysis as part of their tests for judicial enforcement. In the Strickland context, a lawyer’s deficient representation only creates a Constitutional error if there is a reasonable probability that their client would have received a different result, whether at trial or at the proceeding where Strickland attaches. Likewise, the Brady doctrine only permits a remedy where there is a reasonable likelihood that the nondisclosed evidence could have affected the judgment of the jury at trial.

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Appellees and the district court attempt to parse this line by reasoning that the

Innocence Decision was not evaluating the credibility of Robinson’s recantation, instead

noting that if it had been presented to the jury at all there would have been a possibility of

a different verdict. But the materiality requirement necessarily means that there could only

have been a possibility of a different verdict if Robinson’s recantation was sufficiently

credible. Certainly, if the recantation of the prosecution’s sole eyewitness was incredible,

then there could have been no “substantial or significant” possibility of an alternative result

at trial. This is especially true given that, as the Innocence Decision court found,

Robinson’s testimony amounted to “the State’s entire case.” J.A. 314.

This reasoning is consistent with the Innocence Decision analysis. Although the

Innocence Decision court did not utter the phrase, “Robinson’s recantation is credible,” it

did emphasize that Robinson had recanted his trial testimony “on at least three occasions”

and had even “traveled voluntarily from out of State to testify” in the Innocence Decision

proceedings. J.A. 315. Moreover, the court noted, Robinson “never wavered” in his formal

renunciation of his prior testimony.

Clearly, the fact that Robinson’s recantation was

credible was the obvious, and necessary, thrust of these facts, employed to satisfy the writ

of innocence materiality standard.

Thus, the straightforward conclusion is also the correct one. The Post-Conviction

Decision and the Innocence Decision are inconsistent with respect to the credibility of

Robinson’s recantation. Accordingly, per the Restatement (Second) of Judgments § 29,

which again Maryland courts have adopted, Appellees may not rely on the determination

by the Post-Conviction Decision court that Robinson’s recantation was incredible.

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Consequently, Robinson’s original testimony did not provide probable cause to arrest and

prosecute Appellant. Thus, his civil claims against Appellees that rely on Robinson’s

recantation may proceed.

B.

Significantly, an inconsistent prior judgment is not the only ground upon which we

reverse the district court’s decision.

Applying collateral estoppel in this case would impose an unfair and inequitable

result that is inconsistent with the doctrine. Precluding Appellant from litigating his

colorable claims for relief would bar him from taking even a single bite of the apple

regarding Appellees’ alleged misconduct. That misconduct has never been litigated in a

civil case. And in the criminal corollary, the State of Maryland granted Appellant a writ

of actual innocence and dismissed all charges against him. Restated, under the district

court’s decision, Appellant would be barred from ever obtaining a civil remedy for

colorable claims premised upon convictions and a custodial sentence that the state has

overturned. If we follow the state’s lead and assume that Appellant has suffered an injury,

then we must acknowledge that, per the district court’s view, he is also left without any

means of recourse for that harm, pursuant to the application of an equitable doctrine.

Moreover, the application of collateral estoppel on these specific facts confounds

the purposes of the doctrine. Appellees have invoked non-mutual, defensive collateral

estoppel, meaning that they are relying on a prior ruling they were not party to, as an

affirmative defense in their own case. See Shader v. Hampton Improvement Ass’n, Inc.,

(Md. Ct. Spec. App. 2014) (“[D]efensive use of nonmutual collateral

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estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the

plaintiff has previously litigated unsuccessfully in another action against a different

party.”) (citation omitted).

As Maryland courts have explained, nonmutual, defensive collateral estoppel

incentivizes plaintiffs to join all potential defendants in the first action, if possible, to avoid

repetitious lawsuits. Shader,

(citing Parklane Hosiery Co. v. Shore,

, 329–30 (1979)). But here, Appellant could not possibly have joined Appellees -

- or anyone for that matter -- in his first action because it was a post-conviction collateral

attack on his criminal convictions. Put simply, Appellant could not bring a civil suit against

Appellees while his underlying criminal convictions remained undisturbed.

Thus, the possibility of the current lawsuit did not materialize until after Appellee

had obtained his writ of actual innocence. To permit nonmutual, defensive collateral

estoppel in this specific context would prohibit a lawsuit from happening at all. Such a

result would be a perverse inversion not only of equity, but also of the doctrinal incentives

to join all available parties in order to prevent burdensome, “needless litigation.” See

Garrity,

(citing Parklane,

).

Therefore, we also reverse on this basis.

C.

Furthermore, in determining the preclusive effect of a state court judgment, federal

courts must, as a matter of full faith and credit, apply the forum state’s law of collateral

estoppel. Gilliam,

. In undertaking this role, the function of the federal

court is to place itself in the shoes of the state court and give preclusive effect to the

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judgments of that state “when the courts of that state would do so.”

Here, there are

multiple indications that Maryland courts would not give preclusive effect to the

conclusion of the Post-Conviction Decision that Robinson’s recantation was incredible.

First, the government presented Appellees’ collateral estoppel argument to the court

adjudicating the Innocence Decision. There, the government argued that Appellant was

collaterally estopped from relitigating Robinson’s recantation because Appellant was given

a fair opportunity to raise the issue, and it was adjudicated in a final judgment by the

Post-Conviction Decision court. The court that rendered the Innocence Decision did not

address this argument; nor did it consider itself to be bound by that finding or precluded

from ruling that Robinson’s recantation created a substantial or significant possibility that

a jury would have ruled differently.

Second, that same court vacated Appellant’s convictions and awarded him a writ of

actual innocence. In doing so, the court ordered a new trial. The Innocence Decision court

cannot possibly have intended that Appellant should be accorded a new trial, but

collaterally estopped from litigating Robinson’s recantation if the government chose to

offer Robinson’s prior testimony as direct evidence at that trial. See Cook v. State,

(Md. 1978) (“It is beyond question that the closely related doctrines of res

judicata and collateral estoppel apply to criminal as well as civil causes.”). This would be

a more natural application of issue preclusion, within the context of one criminal

proceeding -- yet the result is obviously inconsistent with the judgment issued in the

Innocence Decision.

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Third, the State of Maryland determined in an administrative proceeding that

Appellant was factually innocent of murdering Ali, according to a clear and convincing

standard of proof, and awarded him approximately $3 million in compensation. That

decision, issued on January 2, 2024, was upheld upon judicial review by the circuit court

for Baltimore City in a decision issued on April 5, 2024. Although the district court did

not have the benefit of these decisions, we do. 8 These decisions leave no doubt about the

treatment that Maryland courts have afforded to the findings rendered in the

Post-Conviction Decision. To spell out the obvious: Appellant cannot be factually innocent

of murdering Ali if Robinson’s recantation was incredible.

These facts put to rest any ambiguity as to how Maryland courts would treat the

Post-Conviction Decision with respect to collateral estoppel.

IV.

The district court dismissed Appellant’s alternative Brady due process claim, which

alleged that Appellees withheld: (i) exculpatory statements by Robinson and Dorsey

asserting that they could not identify the shooter; and (ii) Appellees use of threats and other

coercive tactics to extract their allegedly false identification. To succeed on his Brady

claim, Appellant must show: (i) the non-disclosed evidence was favorable to him; and (ii)

it was material to his defense. See Moore v. Illinois,

, 794–95 (1972). Then,

8 And we take judicial notice of them. See N.C. Ins. Guar. Ass’n v. Becerra,

, 435 n.6 (4th Cir. 2022) (taking judicial notice of administrative appeal); see also Colonial Penn Insurance v. Coil,

(4th Cir. 1989).

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because his claim is against police officers rather than a prosecutor, Appellant must show

the officers suppressed the evidence in bad faith. See Gilliam,

.

The district court assumed that such evidence existed and that it favored Appellant.

It then held that Appellant had failed to proffer non-speculative evidence in support of his

claim that Appellees had failed to disclose evidence to the prosecution in Appellant’s

criminal trial. The district court noted that Appellant’s only basis for inferring that

Appellant’s counsel did not receive the alleged Brady material was that he “did not make

an argument about such alleged evidence at trial.” J.A. 3831. Appellant presents no basis

to disturb this ruling on appeal. See, e.g., Appellant’s Br. at 55 (“Further proof that the

exculpatory evidence had not been produced comes from Washington’s suppression

hearing—because if his defense attorney Paul Polansky had it, he would have used it.”).

As the parties recognize, the homicide file is incomplete and neither the prosecuting

attorneys nor Appellant’s own attorney could recall the details of this case so many decades

later. While we are cognizant of the challenges of litigating old cases, those challenges do

not create an independent basis to relax the summary judgment standard. Therefore, we

affirm the district court’s judgment as to this claim. 9

V.

Finally, the district court dismissed Appellant’s intentional infliction of emotional

distress claim for a failure to adduce “sufficient evidence of severe emotional distress.”

9 The dismissal of this claim has no bearing on Appellant’s surviving due process fabrication claim. There is ample evidence in the record of both coercion and fabricated testimony.

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J.A. 3836. While this ruling makes sense on the district court’s prior theory -- that

Robinson’s recantation was incredible and, therefore, Appellant was not wrongfully

incarcerated for 31 years -- that theory rested on a faulty premise as discussed supra. As

it stands today, the State of Maryland has declared Appellant to be an innocent man. Thus,

if Appellant’s theory of the case is true, and he was incarcerated for 31 years pursuant to

Appellees’ coercive attainment of fabricated testimony, his incarceration would certainly

qualify as distress “so severe that no reasonable man could be expected to endure it.”

Harris v. Jones,

(Md. 1977); see also Prince George’s County v.

Longtin,

, 46 n.58 (Md. Ct. Spec. App. 2010) (“There is no doubt that wrongful

incarceration can be actionable as an intentional infliction of emotional distress.”) (citation

omitted).

Yet, Appellees argue that Appellant cannot meet his evidentiary burden because the

record evidence indicates that he now lives a healthy life as a free man. This line of

reasoning is offensive. That Appellant should be subject to a “no harm no foul” rationale

simply because he was able to overcome the damage inflicted upon him is not an argument

that deserves countenance.

Accordingly, the district court’s dismissal of Appellant’s intentional infliction of

emotional distress claim is reversed.

VI.

For the foregoing reasons, the grant of summary judgment to Appellees is

REVERSED IN PART AND AFFIRMED IN PART.

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NIEMEYER, Circuit Judge, concurring in the judgment:

I am pleased to concur in the judgment.

In 1999, the state court considering Washington’s petition for post-conviction relief

concluded that Washington had failed to present sufficient evidence “to support a finding

that the Police [had], in fact, coerce[d] Mr. Robinson,” concluding that Robinson’s

testimony was “incredible.” The 2018 actual-innocence factfinder found — in tension with

the 1999 order, but not in conflict with it — that evidence of Robinson’s recantation was

sufficiently credible and pervasive to “create[] a substantial or significant possibility that

the result [of Washington’s criminal trial] may have been different” had such evidence

been presented to the jury. Md. Code. Ann. Crim. Proc. § 8-301(a)(1)(i) (emphasis added).

As a consequence, the 2018 actual-innocence order granted Washington a new trial, but it

did not find him innocent.

Because of these circumstances, I would give controlling weight to the 2018

proceeding, not because it was in conflict with the 1999 post-conviction order but because

the actual-innocence remedies were newly conferred on Washington by the Maryland

General Assembly in 2009, giving him a range of new remedies, which he successfully

invoked.

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