WEST VIRGINIA RECORD

HUNTINGTON – John David Mooney, who lost his freedom in federal district court and regained it in federal appellate court, believes his malpractice suit against lawyer Michael Frazier of Huntington should stay in federal court.

Frazier has argued that the case belongs in state circuit court, but in a Sept. 23 response Mooney rejected the argument.

His current lawyer, Nicholas Preservati of Charleston, wrote that Mooney was charged, convicted and sentenced in federal court.

He wrote that Mooney challenged his conviction in federal appellate court and that evidence for the malpractice claim is already on file in federal court.

Mooney served five years in federal prison on a conviction for being a felon in possession of a firearm.

The U.S. Fourth Circuit Court of Appeals in Richmond, Va., freed him last year, finding that Frazier's representation fell below a constitutional standard.

The Fourth Circuit held that circumstances justified Mooney's conduct and that Frazier should have defended him on that basis.

Upon Mooney's release, Preservati filed suit at U. S. District Court in Huntington against Frazier, the firm of Frazier and Oxley, and three Huntington policemen.

To establish federal jurisdiction, Preservati named Alcohol, Firearms and Tobacco agent Todd Willard as lead defendant.

Mooney soon dismissed claims against the local police. Next he dismissed Willard, prompting Frazier to argue that federal jurisdiction no longer applied.

Preservati answered that exceptional circumstances warranted federal jurisdiction.

On appeal, he wrote, the West Virginia Supreme Court of Appeals would have to learn the case from the beginning.

The Fourth District, he wrote, is intimately familiar with the case.

"If this case is sent back to state court, the state circuit court will be determining whether the federal affirmative defense of justification applied in the plaintiff's underlying case," he wrote.

Frazier and Mooney dispute two other points.

According to Frazier, state law immunizes public defenders from malpractice claims.

According to Mooney, the law applies to lawyers that state courts appoint. A federal court appointed Frazier, he argues.

According to Frazier, a two year statute of limitations started running in 2004, when Mooney moved to vacate his conviction.

According to Mooney, the statute started running last year, when the Fourth Circuit issued its mandate in his favor.

Police arrested Mooney after he seized a gun from his former wife in fear that she might shoot him.

He stuck the gun in his pants and walked to a bar where he worked. She called police and told them where he went.

At a hearing before U.S. District Judge Robert Chambers, Mooney asked to plead a defense of justification.

Frazier told him he couldn't plead that defense, so he pleaded guilty.

While Mooney served his sentence, his parents died. He missed both funerals.

Michael Fisher, of Jackson Kelly in Charleston, represents Frazier and his firm.

U.S. District Judge Joseph Goodwin presides over the case.