WEST VIRGINIA RECORD

HUNTINGTON – Three Huntington policemen plead in U.S. District Court that they don't belong in a civil suit that former prison inmate John David Mooney filed after U. S. appeals judges vacated his conviction.

Jeff Sexton, Scott Hudson and Chris Jackson moved on July 30 to dismiss Mooney's claim that they share responsibility for his improper incarceration.

Mooney named them as defendants along with Todd Willard of the Bureau of Alcohol, Tobacco and Firearms and his former defense lawyer, Michael Frazier of Huntington.

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

He spent more than five years behind bars. His father and his mother died, and he missed both funerals.

He left prison when the Fourth Circuit appeals court in Richmond, Va., ruled that Frazier should have argued that circumstances justified the possession of the gun.

Mooney had seized the gun from his former wife who he believed might shoot him, and he had walked to his job with the gun in his pants.

Upon gaining freedom, Mooney retained Nicholas Preservati and Joseph Jenkins of Charleston to seek damages for the years he lost. They filed suit in April.

Frazier and his firm, Frazier and Oxley, answered in two weeks. They denied negligence and pinned the blame for Mooney's fate on Mooney.

"The alleged injuries and damages, if any, were caused by the independent acts of the plaintiff himself and were not due to any acts or omissions of these defendants," wrote Michael Fisher of Jackson Kelly in Charleston.

He argued that Mooney is barred from trying to establish innocence in the underlying criminal matter.

The Huntington policemen did not respond so readily. It took more than three months for Michael Farrell of Farrell, Farrell and Farrell in Huntington to file their answer.

He argued that the Fourth Circuit vacated Mooney's conviction solely because of Frazier's failure to assert a justification defense.

The Fourth Circuit did not cite the arrest by Huntington police as a basis for reversal of the conviction, he wrote.

The names of the officers did not appear in Mooney's indictment and his complaint doesn't allege that they testified before the grand jury, he wrote.

"There is no holding or discussion in the Fourth Circuit opinion that can be construed to implicate Officer Sexton or the other Huntington police officers regarding the failure by Mr. Frazier to assert the common law justification defense," he wrote.

Willard, of Alcohol, Tobacco and Firearms, still hasn't answered the complaint.

Chief Judge Joseph Goodwin of the Huntington division of the Southern District of West Virginia presides over the case.