WEST VIRGINIA RECORD

HUNTINGTON - John David Mooney, who endured five years in prison for a crime he didn't commit, believes that officers who arrested him and the lawyer who represented him should compensate him for all he lost.

Mooney sued federal agent Todd Willard, attorney Michael Frazier of Huntington, the firm of Frazier and Oxley, and Huntington police officers Jeff Sexton, Scott Hudson and Chris Jackson in U. S. district court at Huntington on April 10.

Mooney's attorney, Nicholas Preservati of Charleston, claims economic loss, physical injury, mental anguish, compensatory damages and punitive damages.

"During his incarceration, the plaintiff's father passed away. Plaintiff was not allowed to attend his father's funeral," Preservati wrote.

"During his incarceration, the plaintiff's mother also passed away," he wrote. "Again, the plaintiff was not allowed to attend his mother's funeral."

Mooney gained his freedom after the U.S. Fourth Circuit Court of Appeals vacated his conviction on a charge of being a felon in possession of a firearm.

The appellate court found that Frazier's representation "fell below an objective standard of reasonableness," according to Preservati.

The appellate court remanded the case to the district court with directions to let Mooney withdraw a guilty plea he entered in 2003.

The U.S. Attorney then dropped the charge.

In 2002, as Mooney watched television in a home he shared with his former wife, she stuck a pistol against his temple.

"Plaintiff was aware that his ex-wife had shot her previous husband with the same pistol," Preservati wrote.

Mooney grabbed the pistol. "Since the plaintiff had been convicted of a felony more than 20 years prior to this incident," Preservati wrote, "he was also aware that it was unlawful for him to be in possession of the pistol."

He tried to call 911, Preservati wrote, but she wrestled with him.
Mooney decided to hurry eight blocks to where he worked and call 911 there.

While he hurried, his former wife called police. She accused him of breaking into her home and pulling a weapon on her.

She told them where he went. Sexton, Hudson and Jackson arrested him there.

"Even though the plaintiff insisted that he was innocent of the charge in the circumstances," Preservati wrote, "he pleaded guilty because defendants advised him that there was no defense to a felon in possession charge."

At a sentencing hearing, Mooney asked U.S. District Judge Robert Chambers to withdraw the plea.

Frazier disagreed, telling Chambers the elements of the offense did not allow him to argue justification to a jury.

Chambers denied Mooney's request and sentenced him to 15 years in prison.

"For the five years that he was incarcerated," Preservati wrote, "the plaintiff lived in constant fear of being beaten, raped and/or killed."

Mooney alleges that Frazier and his firm committed negligence, legal malpractice, neglect of duty, and infliction of emotional distress.

He alleges malicious prosecution and unreasonable seizure by the Huntington officers and by Willard, of the Bureau of Alcohol, Tobacco and Firearms.

The district court at first assigned Mooney's suit to Chambers, who sentenced him.

The court reassigned it to Judge Joseph Goodwin on April 16.