CHARLESTON – The state Supreme Court issued a unanimous memorandum decision on Dec. 7 dismissing a federal prisoner’s action against his former appellate defense attorney on the grounds of absolute immunity.

“In judicially creating immunity for court appointed attorneys,” the memorandum reads, “this Court in Mooney noted that without such immunity, 'the lawyers in this state who represent indigent defendants in federal courts would be inundated with baseless claims of legal malpractice.'”

In August 2001, David O. Schles was appointed, pursuant to the federal Criminal Justice Act, to represent convicted credit union robber, Matthew Dulaney, in the post-conviction and appellate phases of his criminal action.

Schles “filed numerous post-trial motions, objections to the pre-sentence report prior to sentencing, a timely appeal to the United States Court of Appeals for the Fourth Circuit, and a petition for a writ of certiorari in the Supreme Court of the United States,” according to the opinion.

After the U.S. Supreme Court denied Dulaney’s petition for a writ of certiorari in April 2003, Schles notified Dulaney, by letter, that his representation was concluded and he advised Dulaney of his right to file a petition under 28 U.S.C. 2255 but he informed him he would need to do it with other counsel or pro se, court records state.

In July 2008 Dulaney filed a state court action against Schles, alleging that the attorney had committed legal malpractice during his representation of Dulaney.

Specifically, Dulaney alleged that Schles had failed to inform him of the deadline for filing a petition under 28 U.S.C. 2255 and he asked for a written apology along with $11 million dollars in damages.

The circuit court dismissed the action, citing Mooney v. Frazier, a 2010 West Virginia case that states that “[a]n attorney appointed by a federal court to represent a criminal defendant, in a federal criminal prosecution in West Virginia, has absolute immunity from purely state law claims of legal malpractice that derive from the attorney’s conduct in the underlying criminal proceedings.”

On appeal to the state Supreme Court, Dulaney asserted that the circuit court should have “liberally construed his complaint” and found an action for fraud.

He claimed that the attorney had defrauded the federal government by billing it for a petition of writ of certiorari he was not authorized to file. He also argued that the 2010 Mooney case should not be applied retroactively.

Schles argued that, at most, Dulaney’s complaint made allegations that he was not kept “reasonably informed” and that Dulaney received negligent advice.

Schles further noted that the Supreme Court of West Virginia adheres “to the common law principle that as a general rule, judicial decisions are retroactive in the sense that they apply both to the parties in the case before the court and to all other parties in pending cases.”

“After careful consideration of the parties’ arguments, this Court concludes that the circuit court properly dismissed petitioner’s action against respondent... We find no error in the circuit court’s decision and affirm its August 18, 2011 order dismissing petitioner’s action.”

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