U.S. v. Mooney, 06-7565.

• Citation: 497 F.3d 397
• Decision Date: 06 August 2007
• Docket Number: No. 06-7565.,06-7565.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John David MOONEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

497 F.3d 397

UNITED STATES of America, Plaintiff-Appellee, v. John David MOONEY, Defendant-Appellant.

No. 06-7565.

United States Court of Appeals, Fourth Circuit.

Argued: May 23, 2007.

Decided: August 6, 2007.

ARGUED: Meghan Mary Poirier, Third-Year Law Student, Wake Forest University, School of Law, Winston-Salem, North Carolina, for Appellant. Miller A. Bushong, III, Assistant United States Attorney, Office Of The United States Attorney, Beckley, West Virginia, for Appellee. ON BRIEF: John J. Korzen, Wake Forest University, School of Law, Winston-Salem, North Carolina, for Appellant. Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee.

Before NIEMEYER and GREGORY, Circuit Judges, and DAVID C. NORTON, United States District Judge for the District of South Carolina, sitting by designation.

Reversed, judgment of conviction and sentence vacated, and case remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge NORTON joined.

OPINION

NIEMEYER, Circuit Judge.

In this proceeding under 28 U.S.C. § 2255, John Mooney presented evidence that on August 4, 2002, in Huntington, West Virginia, he seized a firearm from his ex-wife in self-defense, when his ex-wife, who was intoxicated, pointed it at his head. He then walked several blocks to his place of employment to hand the weapon over to the police. Because Mooney was a convicted felon, however, he was charged with the unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Despite Mooney's belief that his possession of the firearm was justified in the circumstances and that he did "the right thing" in returning it to the police, his counsel advised him that justification provided no defense to a violation of § 922(g). His counsel stated, "All the prosecutor has to prove was that [Mooney] was a felon with a firearm." Relying on counsel's advice, Mooney reluctantly pleaded guilty, and the district court sentenced him to 180 months' imprisonment. On direct appeal, we affirmed with an unpublished opinion.

Mooney filed a timely § 2255 motion, claiming that his guilty plea was involuntary in that his counsel rendered him ineffective assistance by not investigating the justification defense and by advising him to plead guilty because there was no such defense to § 922(g). Mooney also claimed that pursuant to the district court's inquiry, his counsel inaccurately represented to the court during his Rule 11 plea colloquy that "if this case went to trial, there would be no meritorious legal defense to this charge." In his motion, Mooney alleged that a quick search would have revealed that the Fourth Circuit, as well as most of the other circuits, has explicitly "recognized the justification defense in reference to Title 18 U.S.C. § 922(g)(1)," citing United States v. Perrin, 45 F.3d 869 (4th Cir. 1995), and United States v. Crittendon, 883 F.2d 326 (4th Cir.1989).

The district court denied Mooney's § 2255 motion noting,

[W]hile Petitioner may have been able to successfully show that he was under a present threat of death or serious bodily injury at the time he took the gun from his ex-wife's possession, he is unable to show a causal connection between that threat and his continued possession of the gun. Petitioner's continued possession of the weapon after leaving the home negates his possible defense.

Accordingly, the court found that "Counsel's failure to advise Petitioner of the defense of justification can be consider[ed] sound trial strategy and does not support a claim of ineffective assistance of counsel." We granted a certificate of appealability.

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 we articulated in Perrin and Crittendon, 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.

I

In denying Mooney's § 2255 motion, the district court relied on the entire record, which included the guilty plea colloquy, sentencing hearing, and the materials presented in the course of the § 2255 proceeding, all of which show the following.

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.¹ 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 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 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. See United States v. Mooney, 90 Fed.Appx. 59 (4th Cir.2004).

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. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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, based on the criteria for the defense articulated in United States v. Perrin, 45 F.3d 869 (4th Cir.1995), and United States v. Crittendon, 883 F.2d 326 (4th Cir.1989). 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" under Crittendon. From the district court's order dated August 28, 2006, Mooney filed this appeal.

II

The issue presented is whether...