West Virginia Record

CLARKSBURG – Because they pleaded guilty to a lesser charge, a judge has ruled two Clarksburg men cannot make valid claims of civil rights violations against the police officers who arrested them on sexual assault charges.

U.S. District Judge Irene Keeley on Feb. 11 dismissed in its entirety Brandon Lewis’ and Frankie Tiborsky’s lawsuit against the Clarksburg Police Department and officers Joshua Cox and Robert Hilliard. However, her dismissal order left open the possibility of them refiling some of the claims in state court.

In their suit, Lewis and Tiborsky alleged Cox and Hilliard violated their constitutional rights from the day they were arrested on Dec. 15, 2009, by the CPD SWAT team up to and including their trial nearly a year later. Lewis was charged on one count each of sexual assault in the second degree and conspiracy to commit sexual assault, and Tiborsky on two counts of sexual assault in the second degree, plus one count of conspiracy stemming from an encounter they had with Erika Southern the night before.

According to court records, Southern, after being introduced to them by a mutual friend, claimed she was raped by Lewis and Tiborsky. The men claim the sex was consensual.

At trial, Lewis' and Tiborksy’s attorney, Dan Cooper, was able to get Cox to admit video evidence favorable to them was either lost or destroyed. Cooper accused Hilliard, who is Southern’s brother and a part-time security guard for the Clarksburg Housing Authority, of making unaccompanied visits to Koupal Towers, where the encounter occurred, to view surveillance footage and download selected portions.

Also, during an evidentiary hearing, Cooper was able to get Southern to admit she falsely accused her ex-husband Adam of raping her.

The trial was halted when Cox testified Lewis, while being interrogated, invoked his right to remain silent. When presented the options of giving the case to the jury with limiting instructions, declaring a mistrial or pleading guilty to a misdemeanor charge of battery, Lewis and Tiborsky took the plea deal.

The agreement allowed them to walk out of court free men sentenced to time already served and not having to register as a sex offender.

However, in her 25-page opinion, Keeley says their decision to accept the plea agreement hamstrings their civil rights claims. Her opinion cites the U.S. Supreme Court’s 1994 decision in Heck v. Humphrey that held a “plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal...  or called into question by a federal court’s issuance of a writ of habeas corpus.”

Because they neither appealed their conviction nor sought to have it expunged or pardoned, Keeley says Lewis and Tiborsky can’t make a case why their suit should proceed under Heck’s “favorable termination” requirement.

Though noting the U.S. Court of Appeals for the Fourth Circuit in 2008 carved out a narrow exception to Heck in Wilson v. Johnson, where a former inmate sued the state of Virginia for arbitrarily delaying his release from prison but did not seek habeas corpus relief. The Fourth Circuit, Keeley said, was clear that the Wilson exception to Heck “applies only where habeas relief is unavailable due to circumstances beyond a petitioner’s control.”

Since they were in custody up until the time they accepted their plea agreement, and had at their disposal a writ of habeas corpus, Keeley said Lewis and Tiborsky can’t seize upon the Wilson exception.

“Plainly,” Keeley wrote in her opinion, “the principal rule is that Heck’s favorable termination requirement is excused only where the plaintiff has diligently pursued his habeas remedies, or was practicably unable to do so prior to his release. Lewis and Tiborsky’s current dilemma, therefore, stems not from any unfair turn of the law, but solely from a calculated decision to cut their losses by pleading guilty to the lesser included offense of misdemeanor battery."

“Under those circumstances,” she added, “to allow them shelter in Wilson’s narrow exception would enable them to ‘end-run Heck,’ and, at bottom, would confer on them the benefit of their plea bargain while shielding them from its consequences.”

In dismissing the suit, Keeley said the claims Lewis and Tiborsky make against CPD, Cox and Hilliard for malicious prosecution, intentional infliction of emotional distress and spoliation of evidence could be refiled in Harrison Circuit Court particularly since the latter claim seeks to expand current case law “beyond its current boundaries.”

Prior to granting summary judgment in favor of CPD, Cox and Hilliard, Keeley on June 12 granted Lewis and Tiborsky's motion for default judgment against Southern, who was named as co-defendant in the suit, when she failed to answer or file any responsive pleading to their complaint. Since then, no hearing has been scheduled on the amount of damages they are to receive from her.

U.S. District Court for the Northern District of West Virginia, case number 11-cv-192