Man's suit against attorney lands in Cabell County

By Steve Korris | Dec 18, 2008

HUNTINGTON – John David Mooney, who claims attorney Michael Frazier should have kept him out of federal prison, has shifted his claim from federal court to Cabell Circuit Court.

Mooney sued Frazier in Cabell County on Dec. 15, three weeks after U.S. District Judge Joseph Goodwin dismissed the suit for lack of jurisdiction.

Goodwin ruled that Mooney's claims arose under state law.

Mooney had pleaded with Goodwin to keep the case but when Goodwin dismissed it, Mooney decided to try state court after all.

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 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.

Mooney 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, Mooney 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.

Mooney soon dismissed claims against the officers, prompting a motion from Frazier to dismiss for lack of jurisdiction.

Preservati responded that Mooney was convicted in federal court and appealed his conviction in federal court.

A state court would have to learn the case from the beginning, he wrote.

The argument didn't sway Goodwin, and now Cabell Circuit Judge Jane Hustead will learn the case from the beginning.

Cabell Circuit Court case number: 08-C-1038

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