Mooney v. Frazier

• Citation: 225 W.Va. 358,693 S.E.2d 333
• Decision Date: 01 April 2010
• Docket Number: No. 35224.,35224.
• Court: Supreme Court of West Virginia
• Parties: John David MOONEY, an Individual, Plaintiff Below, Respondent,v.Michael FRAZIER, an Individual, and Frazier & Oxley, L.C., West Virginia Legal Corporation, Defendants Below, Petitioners.

225 W.Va. 358
693 S.E.2d 333

West Virginia.

John David MOONEY, an Individual, Plaintiff Below, Respondent,
v.
Michael FRAZIER, an Individual, and Frazier & Oxley, L.C., West Virginia Legal Corporation, Defendants Below, Petitioners.

No. 35224.

Supreme Court of Appeals of

Submitted March 2, 2010.
Decided April 1, 2010.

693 S.E.2d 334

Syllabus by the Court

1. “The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

2. “When a court appoints a private attorney to represent a client pursuant to W. Va.Code § 29-21-1, et seq. , and that client then sues the attorney for malpractice in connection with that representation, the attorney shall be immune from liability arising from that representation in the same manner and to the same extent that prosecuting attorneys are immune from liability.” Syllabus point 5, Powell v. Wood County Commission, 209 W.Va. 639, 550 S.E.2d 617 (2001)

3. W. Va.Code § 29-21-20 (1989) does not provide immunity from legal malpractice for attorneys appointed by federal courts to represent indigent defendants.

4. An 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.

Michael M. Fisher, Ben M. McFarland, Jackson Kelly PLLC, Charleston, WV, for Petitioners.

Nicholas S. Preservati, Joseph L. Jenkins, Preservati Law Offices, Charleston, WV, for Respondent.

DAVIS, Chief Justice:

This matter comes before this Court upon a request from the Circuit Court of Cabell County to answer three certified questions. The parties briefing the certified questions are: John David Mooney, respondent/plaintiff

693 S.E.2d 335

below, and Michael Frazier and Frazier & Oxley, L.C. (hereinafter collectively Mr. Frazier), petitioners/defendants below. By order dated April 7, 2009, the circuit court certified the following three questions to this Court:

1. Whether the statute of limitations on a legal malpractice action stemming from the defense of a criminal defendant begins to run when the criminal defendant files a habeas corpus petition claiming that he suffered ineffective assistance of counsel in the underlying criminal proceedings?

Answer: Yes X No ____

2. Is a criminal defendant collaterally estopped from filing a civil legal malpractice claim against his attorney until the underlying criminal conviction is overturned?

Answer: Yes ____ No X

3. Whether, under West Virginia law, an attorney who is court appointed to represent a criminal defendant in a federal criminal prosecution is immune from purely state law claims of legal malpractice stemming from the underlying criminal proceedings?

Answer: Yes ____ No X

Upon review of the parties' briefs, arguments, and the record, we answer the third certified question in the affirmative. Because of our answer to the third certified question, the first two certified questions are moot.I. FACTUAL AND PROCEDURAL HISTORY

This case has its origins in the criminal prosecution of Mr. Mooney by the federal government. The underlying facts of the federal criminal prosecution were set out in an opinion by the Fourth Circuit Court of Appeals in United States v. Mooney, 497 F.3d 397 (4th Cir.2007). The facts set out in the Mooney opinion are as follows:

In the early morning hours of August 4, 2002, at approximately 2:00 a.m., John Mooney returned home from his job at Whisman's Bar, a bar seven blocks away. Home for Mooney was apparently the house he shared with his ex-wife, Florencia “Sandy” McCloud. After fixing himself dinner, he retired to the master bedroom, sat on the bed, and began to eat his meal. At that point, McCloud retrieved a .38 caliber revolver from a lockbox under her side of the bed and placed the end of its barrel against the side of Mooney's head, near the temple. Mooney knew that McCloud had been drinking that night and that she had a propensity to brandish and shoot guns at the men in her life. McCloud had pulled a gun on Mooney before, had fired a gun at a boyfriend once, and had fired at and actually hit a different ex-husband with the very same gun whose barrel was touching the side of Mooney's head. Mooney stated he was “scared,” and he twirled around and grabbed the gun from McCloud's grasp.

Mooney hurriedly stood up and called his boss Terry Whisman at Whisman's Bar to say that his ex-wife had pulled the gun on him again and that he was bringing it in to hand it over to the police. Before Mooney could leave, however, McCloud angrily demanded the return of the gun and threatened to call the police if Mooney did not return it. Instead of giving the gun back, Mooney himself called 911, but McCloud disconnected the call. Mooney called 911 again, and McCloud again disconnected the call. The transcripts of these two aborted 911 calls, however, recount the verbal fight then ensuing between Mooney and McCloud. McCloud repeatedly told Mooney that he was going to jail, and Mooney responded, “I'm not worried about going to jail. You're losing your gun. You'll never pull it on me again.”

Unsuccessful in his efforts to call a 911 operator from the house, Mooney departed for Whisman's Bar according to his original plan to hand the gun over to the police there. As Mooney left the house, McCloud attacked him, ripping off his shirt. Immediately after Mooney departed, McCloud called 911 and reported that Mooney possessed her handgun and was headed for Whisman's Bar.

Mooney walked the seven blocks to Whisman's Bar with the handgun in his

693 S.E.2d 336

pocket. When he arrived, the bar was locked, but Whisman let him in. As Mooney reached for the telephone in order to call 911, Whisman informed him that it was unnecessary to do so because the police were already outside. Mooney then walked out of the bar with his hands in the air, and the police took the gun from his pocket and arrested him without incident.

Mooney was charged in a single-count indictment for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1). Even though Mooney insisted that he was innocent of the charge in the circumstances, he pleaded guilty because his appointed counsel [Mr. Frazier] advised him that there was no defense to a felon-in-possession charge.

At his sentencing hearing on May 12, 2003, Mooney sought to withdraw his guilty plea on the basis that he “did something that was right” and was innocent of the charge. But Mooney's counsel expressed his disagreement with Mooney and advised the court that “the elements of this [felon-in-possession] offense [do not] allow for us to make that [justification] argument in front of the jury.” The district court denied Mooney's request to withdraw his guilty plea, reasoning that once Mooney walked out of the house with the gun, he “committed a crime” for which there was no justification, “even though [he had] a good reason to take the gun from [McCloud] in the first place.” The court denied Mooney's motion to withdraw his plea and sentenced Mooney to 180 months' imprisonment. On direct appeal, we affirmed, holding in a brief opinion that the district court had not abused its discretion in refusing to permit Mooney to withdraw his plea.

Mooney timely filed a motion under 28 U.S.C. § 2255, seeking to vacate his conviction and sentence based on a claim of ineffective assistance of counsel. He asserted that he pleaded guilty due to counsel's erroneous advice that his charge under 18 U.S.C. § 922(g) was not subject to a justification defense. If he had known of the possibility of a defense, Mooney claimed, he would not have pleaded guilty and would have insisted on proceeding to trial. He also claimed that he likely would have succeeded at trial in persuading the court to submit the justification defense to the jury and in convincing the jury of the defense.... The district court denied Mooney's § 2255 motion, holding that counsel's failure to research the defense of justification was not unreasonable professional assistance because Mooney's “continued possession of the weapon after leaving the home negate[d] his possible defense[.]”

Mooney, 497 F.3d at 401 (internal citations omitted). Mr. Mooney appealed the denial of his federal habeas petition. In an opinion that was decided on August 6, 2007, the Fourth Circuit found that Mr. Mooney had established a basis for habeas relief as follows:

Based on the record made in connection with the § 2255 motion, we conclude that in connection with Mooney's guilty plea, Mooney's counsel provided ineffective assistance of counsel, and but for that assistance, Mooney would not have pleaded guilty. We also conclude that if Mooney were able to present the same facts at trial, the trial court would be required, under the criteria [of our precedents], to submit a justification defense to the jury and that the jury would likely consider it favorably. Accordingly, we reverse the district court's order denying Mooney's § 2255 motion, vacate the judgment of conviction and sentence entered against Mooney on May 13, 2003, and remand the case to permit Mooney to withdraw his guilty plea.

Mooney, 497 F.3d at 399.

After the case was remanded, the federal government declined to reprosecute Mr. Mooney. Therefore, the case was dismissed. It appears that Mr. Mooney had served over five years imprisonment before the felony charge was dropped and the case dismissed.

Subsequent to Mr. Mooney's release from prison he filed a civil action against Mr. Frazier in federal district court on April 10,

693 S.E.2d 337

2008. ¹ By an order entered November 18, 2008, the federal district court dismissed the action against Mr. Frazier on the grounds of lack of subject matter jurisdiction.

After Mr. Mooney's federal civil case was dismissed, he filed the instant action...