Goodwin

HUNTINGTON – He proved he didn't belong in prison, but John David Mooney can't pursue a suit in federal court against the public defender who failed to prove he didn't belong in prison.

U.S. District Judge Joseph Goodwin on Nov. 18 dismissed Mooney's malpractice suit against Michael Frazier of Huntington and the firm of Frazier and Oxley, declaring he lacked jurisdiction.

Mooney went to federal prison in 2002, after pleading guilty to a charge that he was a felon in possession of a handgun.

He had seized the gun from his former wife in fear that she might shoot him, and he had carried it in his pants to a bar where he worked.

She called police. Officers Jeff Sexton, Scott Hudson and Chris Jackson arrested him along with federal firearms agent Todd Willard.

He wished to plead that circumstances justified his action, but Frazier told him the court would not allow a plea of justification.

Mooney pleaded guilty and spent more than five years in federal prison. His father and his mother died, and he missed both funerals.

The U.S. Fourth Circuit Court of Appeals in Richmond, Va., freed him last year upon finding that Frazier should have offered a justification defense.

This April, Charleston lawyer Nicholas Preservati filed suit for Mooney at federal court in Huntington against Willard, Frazier, Sexton, Hudson and Jackson.

Against the officers, Preservati asserted federal claims of malicious prosecution and lack of probable cause.

Against Frazier, he asserted claims of negligence, malpractice and infliction of distress, all under state law.

Before long, Mooney dismissed Willard and the Huntington policemen.

That prompted Frazier's lawyer, Michael Fisher of Jackson Kelly in Charleston, to challenge federal jurisdiction. He moved to dismiss.

In response, Preservati urged Goodwin to exercise supplemental jurisdiction.

He argued that Mooney was convicted in federal court and appealed his conviction in federal court. Evidence of malpractice was on file in federal court, he wrote.

A state court would have to learn the case from the beginning, he wrote, and so would the West Virginia Supreme Court of Appeals.

The argument failed.

Goodwin wrote that supplemental jurisdiction may lie where claims revolve around a central fact pattern.

Mooney's claims against the officers related to his arrest and prosecution, he wrote.

"By contrast, the plaintiff's claims for legal malpractice against his attorney and his law firm arose out of their legal representation and advice and have nothing to do with the plaintiff's arrest and indictment," he wrote.

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