PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-7565
JOHN DAVID MOONEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(3:02-cr-00231; 3:04-cv-1001)
Argued: May 23, 2007
Decided: August 6, 2007
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.
COUNSEL
ARGUED: Meghan Mary Poirier, Third-Year Law Student, WAKE
FOREST UNIVERSITY, School of Law, Winston-Salem, North Car-
olina, for Appellant. Miller A. Bushong, III, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Beck-
2 UNITED STATES v. MOONEY
ley, 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 Attor-
ney, Charleston, West Virginia, for Appellee.
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 jus-
tified in the circumstances and that he did "the right thing" in return-
ing 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 fire-
arm." Relying on counsel’s advice, Mooney reluctantly pleaded
guilty, and the district court sentenced him to 180 months’ imprison-
ment. On direct appeal, we affirmed with an unpublished opinion.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 assis-
tance 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
UNITED STATES v. MOONEY 3
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 posses-
sion, 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 Peti-
tioner 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 pro-
ceeding, all of which show the following.
In the early morning hours of August 4, 2002, at approximately
4 UNITED STATES v. MOONEY
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 tem-
ple. 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 Moo-
ney departed, McCloud called 911 and reported that Mooney pos-
sessed her handgun and was headed for Whisman’s Bar.
1
The only disputes in the record appear with respect to whether Moo-
ney was actually sharing the house with McCloud and the basis for their
altercation. On these issues the district court found Mooney to be "just
as credible, or maybe more so, than [McCloud]."
UNITED STATES v. MOONEY 5
Mooney walked the seven blocks to Whisman’s Bar with the hand-
gun 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 dis-
trict court denied Mooney’s request to withdraw his guilty plea, rea-
soning 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 with-
draw 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 (1985); Str-
ickland v. Washington, 466 U.S. 668 (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 per-
6 UNITED STATES v. MOONEY
suading 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 coun-
sel’s failure to research the defense of justification was not unreason-
able 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 representation provided to Mooney
by his counsel when Mooney pleaded guilty "fell below an objective
standard of reasonableness," Strickland, 466 U.S. at 687-88, and
whether, "but for counsel’s errors, [Mooney] would not have pleaded
guilty and would have insisted on going to trial," Hill, 474 U.S. at 59.
Because the "alleged error of counsel is a failure to advise the defen-
dant of a potential affirmative defense to the crime charged, the reso-
lution of the ‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial." Id. We
resolve this question on the record de novo. See Becton v. Barnett,
920 F.2d 1190, 1192 (4th Cir. 1990).
A
We address first the question of whether defense counsel’s perfor-
mance was reasonable "under prevailing professional norms," Strick-
land, 474 U.S. at 688, such that it was "‘within the range of
competence demanded of attorneys in criminal cases,’" Hill, 474 U.S.
at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
It is uncontested that Mooney fully advised his counsel of his ver-
sion of the facts surrounding his arrest. Mooney also told his counsel
that he "should have a defense to the charge since [he] was doing the
right thing" in seizing the gun from his wife in self-defense and
returning it to the police. As a result of counsel’s advice that he had
no defense, Mooney agreed to plead guilty, but only on the condition
UNITED STATES v. MOONEY 7
that "the judge agreed with the fact that there was no defense to the
charge."
When Mooney and his counsel appeared before the district court
to plead guilty, Mooney tried to explain to the court why he felt his
possession of the gun was justified, but, contrary to the arrangement
that Mooney and his counsel had reached, Mooney’s counsel silenced
him, and Mooney reluctantly pleaded guilty. The transcript reads:
The Court: Mr. Mooney, do you believe you’re guilty of
the charge contained in the indictment?
Mooney: I did have a gun.
The Court: All right. Do you believe you’re guilty of this
charge? If you don’t believe you’re guilty, now
is the time to say so for sure.
Mooney: The circumstances surrounding it —
Counsel: I know what he’s hung up on, if you’ll give me
just a moment.
The Court: Go ahead.
(Defense counsel and the defendant conferred privately off
the record.)
The Court: All right. Mr. Mooney, do you believe you’re
guilty of this charge?
Mooney: Yes sir.
Mooney was not, however, comfortable with his plea, still main-
taining that he was innocent. At sentencing, he sought to raise the
defense again in a motion to withdraw his guilty plea. He told the
court:
I took the gun. I took the gun away from somebody to keep
them and me from getting hurt, to turn it in to the Hunting-
8 UNITED STATES v. MOONEY
ton police, okay? I did what was right. You know, I didn’t
do what was wrong.
Mooney repeatedly protested that he was innocent, stating, "I’m not
guilty of this." His counsel, however, again undermined Mooney’s
efforts to present his defense, stating, "Mr. Mooney and I have a
slight disagreement on this one." Then counsel explained:
He asserts he’s innocent because, while he had possession
of the handgun, he was doing it for the right reason. And I
don’t disagree with that. I think there’s plenty of evidence
that he was doing it for the right reason. He took this gun
away from his wife, who he was afraid was going to shoot
him or do something bad, and he took it.
I’ve advised him that, in my opinion, legally that may not
be legal innocence because I don’t think that the elements
of this offense allow for us to make that argument in front
of the jury.
Mr. Mooney understandably disagrees with that and thinks
that he should be allowed to argue to the jury that while,
yes, he had possession, that the reasons he had possession
should somehow nullify that.
The court denied Mooney’s motion to withdraw his plea.
Mooney now contends that his counsel did not meet the required
standard of representation when he advised Mooney to plead guilty
on the erroneous assumption that no justification defense existed. In
the language of Hill, he argues that counsel "fail[ed] to advise [him]
of a potential affirmative defense to the crime charged." 474 U.S. at
59. But he argues in addition that his counsel denied him the condi-
tion on which he agreed to plead guilty — to have the judge consider
the defense — and affirmatively advocated against him during sen-
tencing when Mooney sought to present the defense through his own
explanation. Mooney suggests that with only a few minutes of
research, his counsel would have discovered not only that courts rou-
tinely entertain such a defense, but also that Mooney’s circumstances
UNITED STATES v. MOONEY 9
presented a credible and likely claim for the jury to consider. Moo-
ney’s argument, accordingly, depends on the availability of a justifi-
cation defense to a violation of 18 U.S.C. § 922(g), which provides,
in relevant part, that "it shall be unlawful for any person[,] who has
been convicted in any court of a crime punishable by imprisonment
for a term exceeding one year[,] to . . . possess in or affecting com-
merce, any firearm."
It is well recognized that Congress enacts criminal laws against the
preexistence of the common law. See United States v. Bailey, 444
U.S. 394, 415 n.11 (1980) (stating that Congress enacts criminal laws
"against the background of Anglo-Saxon common law"). And it is
equally clear that firmly entrenched in the common law is the justifi-
cation defense. See, e.g., William Blackstone, 1 Commentaries *130
(explaining that "the life and limbs of a man are of such high value,
in the estimation of the law of England, that it pardons even homicide
if committed se defendendo (in self defense); or in order to preserve
them"); United States v. Gilbert, 430 F.3d 215, 219 (4th Cir. 2005).
In Bailey, the Supreme Court held that common law defenses of
duress and necessity were generally available in prosecutions under
18 U.S.C. § 751(a) for escape from federal prison, even though the
statutory language provided no such suggestion. 444 U.S. at 415. The
proper conclusion from Bailey is that "Congress’ failure to provide
specifically for a common law defense in drafting a criminal statute
does not necessarily preclude a defendant charged with violating the
statute from relying on such a defense." United States v. Panter, 688
F.2d 268, 271 (5th Cir. 1982). This conclusion is not surprising, how-
ever, inasmuch as statutes rarely enumerate the defenses to the crimes
they describe, and defenses continue to remain doctrines of the com-
mon law, the background against which Congress enacts federal
crimes. See also United States v. Dixon, 126 S. Ct. at 2445 (assuming
that the common law defense of duress would be available to charges
under 18 U.S.C. § 922(g) (the same offense at issue here)).
To recognize, in particular, the justification defense to the felon-in-
possession offense is not remarkable. "Common sense dictates that if
a previously convicted felon is attacked by someone with a gun, the
felon should not be found guilty for taking the gun away from the
attacker in order to save his life." United States v. Singleton, 902 F.2d
471, 472 (6th Cir. 1990).
10 UNITED STATES v. MOONEY
Every circuit to have considered justification as a defense to a pros-
ecution under 18 U.S.C. § 922(g) has recognized it. See United States
v. Leahy, 473 F.3d 401, 409 (1st Cir. 2007); United States v.
Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000); United States v.
Gomez, 92 F.3d 770, 774-75 (9th Cir. 1996); United States v. Pao-
lello, 951 F.2d 537, 540-41 (3d Cir. 1991); Singleton, 902 F.2d at 472
(6th Cir. 1990); United States v. Vigil, 743 F.2d 751, 756 (10th Cir.
1984); Panter, 688 F.2d at 271 (5th Cir. 1982); United States v.
Agard, 605 F.2d 665, 667 (2d Cir. 1979).
In this circuit, we have identified the justification defense and have
described its elements, but we have never had occasion to apply it
because the criteria for its application have never been fulfilled. See,
e.g., Gilbert, 430 F.3d at 218 (acknowledging that we have "recog-
nized the plausibility of a justification defense to a felon-in-
possession charge"); Perrin, 45 F.3d at 873-75; Crittendon, 883 F.2d
at 329-30; see also Washington v. United States, 264 F. Supp. 2d 413,
431-32 (W.D. Va. 2002). As we observed in Perrin, "It has been only
on the rarest of occasions that our sister circuits have found defen-
dants to be in the type of imminent danger that would warrant the
application of a justification defense." Perrin, 45 F.3d at 874. Accord-
ingly, "we continue to construe the justification defense for posses-
sion of a firearm by a felon very narrowly." Id. at 875.
But if the facts were presented at trial that have been established
in his § 2255 proceeding, they would satisfy the demanding criteria
set forth in Perrin and Crittendon, as well as the unanimous views of
the other circuits, and Mooney would have been entitled to have the
justification defense presented to the jury.
In view of this state of the law with respect to the justification
defense, it was patently inaccurate for Mooney’s counsel to have
advised Mooney and to have represented to the court that no such
defense was ever available. A justification defense could well have
been available if Crittendon’s four-prong test were satisfied. Coun-
sel’s erroneous legal advice resulted from a failure to conduct the nec-
essary legal investigation. Counsel in criminal cases are charged with
the responsibility of conducting "appropriate investigations, both fac-
tual and legal, to determine if matters of defense can be developed."
Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968) (emphasis added);
UNITED STATES v. MOONEY 11
see also Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make
reasonable investigations"). Not only did counsel fail to explore the
possibility of a defense, he also intercepted his own client’s efforts to
present the defense to the court during his plea colloquy and under-
mined his client’s efforts to present the defense at sentencing when
Mooney sought to withdraw his guilty plea. We find counsel’s perfor-
mance to fall outside "the range of competence demanded of attor-
neys in criminal cases." McMann, 397 U.S. at 771. While we apply
"a heavy measure of deference to counsel’s judgments," "reasonable
professional judgments" did not "support [counsel’s] limitations on
investigation" in this case. Id.
Moreover, in this case, counsel’s deficient performance did not
relate to some trivial or mildly important point. Nor did it involve a
difficult choice on how to allocate precious legal resources. Rather,
counsel’s failure to investigate, which resulted in erroneous legal
advice and legal representation, went to the heart of Mooney’s crimi-
nal liability. Counsel knew this; he knew the underlying extraordinary
facts; and he knew his client’s wishes. Thus, his failure to investigate
in the circumstances of this case resulted in faulty legal advice and
courtroom misrepresentations on a point of primary importance.
Accordingly, we conclude that the first prong of Strickland has
been demonstrated.
B
To address the prejudice prong of the Strickland standard in the
context of a guilty plea, we determine whether "but for counsel’s
errors, [Mooney] would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59. And because the error
is alleged to be counsel’s "failure to advise [Mooney] of a potential
affirmative defense," we must also inquire whether "the affirmative
defense likely would have succeeded at trial." Id.
The record is incontrovertibly clear — not even the government
disputes the fact — that Mooney would not have pleaded guilty and
would have insisted on going to trial if not for his counsel’s erroneous
advice. First, he stated this under oath in his § 2255 motion:
12 UNITED STATES v. MOONEY
I pled guilty because I truly believed that there was no
defense available to the charge. . . . If I would have known
of the availability of the ‘justification’ defense, I would have
pleaded not guilty and gone to trial on the grounds that I
possessed the firearm only to protect myself from my ex-
wife.
Moreover, the underlying record supports his claims. At the guilty
plea hearing, the court asked Mooney, "Do you believe you’re guilty
of the charge contained in this indictment?" Mooney responded, "I did
have a gun." Understandably not satisfied with the hesitating
response, the court told Mooney that "[i]f you don’t believe you’re
guilty, now is the time to say so." Mooney began to explain, "The cir-
cumstances surrounding it — ," but his counsel then cut him off, tell-
ing the court, "I know what he’s hung up on, if you’ll give me just
a moment." Of course Mooney was "hung up" on the belief that he
was justified in possessing the gun, but after counsel conferred with
him off the record, apparently disabusing him of that notion, Mooney
responded that he was guilty of the charge. Despite this exchange in
court, Mooney still told the court, "My wife was drinking the night
that she had the gun out and I was scared. I took it to get it out of the
house for my own safety."
Also at the sentencing hearing, where Mooney sought to withdraw
his guilty plea on the same basis, he stated to the court again, "I took
the gun away from somebody to keep them and me from getting hurt,
to turn it in to the Huntington police." He protested, "I’m not guilty
of this."
Even though there is no evidence in the record to suggest that Moo-
ney would have pleaded guilty but for his counsel’s unprofessional
performance, the government yet contends that Mooney was not prej-
udiced by counsel’s performance because the district court, at the sen-
tencing hearing when Mooney presented his motion to withdraw his
plea, rejected Mooney’s justification defense, stating, "I wouldn’t let
you or your lawyer argue that to the jury." Under the government’s
reasoning, Mooney was not prejudiced by counsel’s performance
because the district court would not have permitted the justification
defense even if counsel’s performance had been competent.
UNITED STATES v. MOONEY 13
We find several problems with the government’s argument. First,
the court rejected Mooney’s justification defense at the sentencing
hearing, and therefore the court’s statements were irrelevant to the
prejudice inquiry, which focuses on whether the defendant would
have pleaded guilty in the first place. At the plea colloquy the court
relied on Mooney’s counsel’s representations that "if this case went
to trial, there would be no meritorious legal defense to this charge."
Second, the court did not have the aid of an adversarial process when
it rejected Mooney’s justification defense. Instead of advocating on
behalf of his client, counsel affirmatively contradicted Mooney and
represented to the court that no justification defense was available for
charges under 18 U.S.C. § 922(g). There was no discussion of case
law and no mention of the numerous Fourth Circuit cases referring to
the defense, including Perrin and Crittendon. Mooney was thus left
to act essentially as a pro se defendant with both the government and
his own counsel aligned against him. Third, the district court was
incorrect as a matter of law, as we conclude in this appeal.
Under the prejudice prong of the Strickland/Hill analysis, we must
still determine whether the justification defense would likely have
succeeded at trial. See Hill, 474 U.S. at 59.
Our decision in Crittendon articulates a four-prong test for evaluat-
ing the merits of a justification defense to a felon-in-possession
charge under § 922(g), stating that to be entitled to the defense, a
defendant must produce evidence at trial that would allow the fact
finder to conclude that he:
(1) was under unlawful and present threat of death or seri-
ous bodily injury;
(2) did not recklessly place himself in a situation where he
would be forced to engage in criminal conduct;
(3) had no reasonable legal alternative (to both the crimi-
nal act and the avoidance of the threatened harm); and
(4) [that there was] a direct causal relationship between
the criminal action and the avoidance of the threatened
harm.
14 UNITED STATES v. MOONEY
Crittendon, 883 F.2d at 330; see also Perrin, 45 F.3d at 873-74.
Because Congress, in enacting § 922(g), "sought to keep guns out of
the hands of those who have demonstrated that they may not be
trusted to possess a firearm without becoming a threat to society,"
Small v. United States, 544 U.S. 385, 398 (2005) (quotation marks
and citations omitted), we "construe the justification defense for pos-
session of a firearm by a felon very narrowly," Perrin, 45 F.3d at 875.
Indeed, we reserve its application for the "rarest of occasions." Id. at
874; see also Gilbert, 430 F.3d at 219.
Considering Crittendon’s first prong, the facts in this record cer-
tainly demonstrate that Mooney was under an unlawful and present
threat of death or serious bodily injury when he seized the gun from
his wife. His ex-wife, who smelled of alcohol, had placed the nose of
the gun to Mooney’s temple. Mooney knew that she had a history of
discharging firearms at people, having shot her former husband and
once shot at a former boyfriend. She had even pulled a firearm on
Mooney before. These circumstances undoubtedly show that Mooney
was under an imminent and specific threat of death when he seized
the gun. Cf. Paolello, 951 F.2d at 542-43 (imminence and specificity
requirements satisfied when defendant wrestled gun away from man
who struck defendant’s stepson with the gun and pointed it into the
air); Panter, 688 F.2d at 269-71 (imminence and specificity require-
ments satisfied when defendant stabbed in the abdomen three times
with a pocketknife).
In Crittendon, we pointed out that most justification defenses in
felon-in-possession cases fail at this first step, because "generalized
fears will not support the defense of justification." Crittendon, 883
F.2d at 330. In that case we rejected the defense for a felon who, eight
months prior to his arrest, was shot while walking home from work
and therefore carried a weapon for self-defense. See id. at 329-30.
While "it may have been perfectly rational for the defendant to have
feared another attack," the "defendant was not in imminent danger at
the time he was arrested on the § 922(g) charge." Perrin, 45 F.3d at
874 (summarizing Crittendon). Likewise, in Perrin itself, we rejected
the defense for a defendant who possessed a firearm to defend against
a person who had searched for him with a shotgun two days prior to
his arrest. Although the fear of attack "may have been rational, it
[was] the same type of generalized fear" we rejected in Crittendon.
UNITED STATES v. MOONEY 15
Id. at 875. In contrast, the threat facing Mooney was imminent, real
and specific, and life-threatening. Indeed, the district court found that
Mooney had "a pretty good argument for why [he] took the gun from
[his ex-wife] in the first place."
Considering the second Crittendon factor, the facts of record show
that Mooney did not recklessly place himself in a situation where he
would be forced to engage in criminal conduct. There is no evidence
on the record that Mooney posed a threat to his ex-wife that would
reasonably invite her to put a gun to his head or that he provoked her
to point the gun at his head. He testified that he simply returned
"home from work," fixed himself a meal, and retired to the master
bedroom to eat it. The verbal and physical altercations between Moo-
ney and his ex-wife occurred only after Mooney seized the gun from
her.
With respect to the third Crittendon factor — whether Mooney had
a reasonable alternative (to both the criminal act and the avoidance of
a threatened harm) — the district court believed that any justification
defense failed. While the court acknowledged that Mooney had a
good argument for taking possession of the gun in the first place, the
court believed that Mooney’s continued possession of the gun upon
leaving the house extinguished any plausible justification defense.
The court observed, "Once [Mooney] walk[ed] out of that house with
the gun, especially the fact that [he] continue[d] to possess it, [was]
enough [to] make [Mooney] guilty of this crime." The court did find
that after Mooney left the house, he walked directly to the bar, intend-
ing to turn the gun over to police:
All the law enforcement officers involved in your arrest
agree that you took that gun with you and you went to the
bar and that at least perhaps you told the bar owner that you
had taken the gun from her and you intended to turn that gun
over to the police.
The court found, however, that § 922(g) "doesn’t create any sort of
exception for that reason for having a gun." But the district court did
posit that if it was Mooney’s intention "to immediately turn the
weapon over to the authorities, he could simply have waited for the
16 UNITED STATES v. MOONEY
police to respond to his 911 phone calls instead of securing the
weapon in his pocket and walking to another location."
We wholeheartedly share the district court’s attentiveness to a
felon’s continued possession of a firearm after justifiably gaining pos-
session. Such attention is necessary for the narrow application of the
defense. After all, the purpose behind the statute is to "keep firearms
away from the persons Congress classified as potentially irresponsible
and dangerous," Barrett v. United States, 423 U.S. 212, 218 (1976),
and "it is the retention of a firearm, rather than the brief possession
for disposal . . . which poses the danger which is criminalized."
United States v. Mason, 233 F.3d 619, 625 (D.C. Cir. 2000) (quota-
tion marks and citation omitted).
But here, Mooney’s conduct appears to have been necessary and
efficient in disposing of the gun. Mooney’s first act after gaining pos-
session of the gun was to call his boss at Whisman’s Bar to tell him
that he was bringing the gun in to turn it over to the police. Before
Mooney could leave, however, his wife confronted him and
demanded the return of the gun. Still holding the telephone, Mooney
called 911 to report the incident himself, but his wife disconnected the
call. Mooney called 911 again, and his wife again disconnected the
call. Mooney then tried to depart for Whisman’s Bar, but a physical
altercation with his ex-wife detained him. After his ex-wife ripped off
his shirt, Mooney freed himself and walked directly to Whisman’s
Bar, where, upon his arrival, he surrendered the gun to the police.
The trajectory of Mooney’s actions all pointed toward handing
over the gun to the police. As is essential to the defense, he did not
unnecessarily delay or detour at any point. Mooney’s manifest inten-
tion from seizure to hand-over was the single-minded effort to rende-
vous with the police. The district court faulted Mooney for not
remaining at the house, but his intoxicated ex-wife would not permit
him to call 911, and the situation continued to threaten a much greater
verbal and physical altercation. While that may still have been an
alternative, the safest and most efficient alternative was surely to exit
the inflamed situation and follow through with his original plan to
turn the gun over to the police at the bar. As he protested several
times to the court, "I did the right thing." When a defendant pursues,
immediately and without delay or detour, a reasonable course for
UNITED STATES v. MOONEY 17
handing over a gun to proper authorities after legally taking posses-
sion of it, we cannot fault him for not choosing a different reasonable
course.
Also with respect to the third Crittendon factor, it would appear
that Mooney had no reasonable alternative to the threatened harm to
his life or body but to seize the firearm in the first place. The firearm
was pointed at his head without warning, and there was no opportu-
nity to leave before McCloud unexpectedly pointed it at him. More-
over, while the gun was at his head, there was no reasonable
possibility of escape without a serious and immediate risk of being
shot. These circumstances are not analogous to the more common sit-
uation where one could escape, call the police, run to a safe house,
or otherwise avoid the threat without possessing the firearm.
Finally, the fourth Crittendon prong is satisfied here. There was a
direct causal relationship between Mooney’s possession of the gun
and his avoidance of the threatened harm. The only way for Mooney
to have removed the threat posed by his ex-wife was to seize the gun
that was being held against his temple.
We do not conclude that Mooney will necessarily succeed at trial
in establishing the facts supporting the justification defense. But we
do conclude that the facts, as developed in the record and as recog-
nized by the district court, present one of those rare occasions which,
if they were proven at trial, would require the court to present the
defense to the jury and would likely persuade the jury.2 More point-
2
At any trial at which Mooney raises the justification defense, he will,
of course, bear the burden of production, see Crittendon, 883 F.2d at 330
(noting that "the defendant must produce evidence" satisfying the
defense), and the burden of proving the defense by a preponderance of
the evidence. See Dixon, 126 S. Ct. at 2247-48 (noting "in the context of
[18 U.S.C. § 922]," the defendant "bear[s] the burden of proving the
defense of duress by a preponderance of the evidence"); see also Leahy,
473 F.3d at 408-09 (holding that, in prosecutions under 18 U.S.C.
§ 922(g), the defendant bears the burden of proving the defense of justifi-
cation by a preponderance of the evidence); United States v. Beasley, 346
F.3d 930, 935 (9th Cir. 2003) (same); United States v. Dodd, 225 F.3d
340, 350 (3d Cir. 2000) (same); Deleveaux, 205 F.3d at 1296 (11th Cir.
18 UNITED STATES v. MOONEY
edly, the facts accepted by the district court demonstrate that, in
pleading guilty, Mooney did not receive legal representation that fell
within the range of competence demanded of attorneys in criminal
cases and that Mooney was prejudiced by his counsel’s failure.
In short, we conclude that Mooney was denied effective assistance
of counsel in entering a guilty plea and that he was prejudiced by that
ineffective assistance. Accordingly, we reverse the district court’s
order denying Mooney’s motion under 28 U.S.C. § 2255, vacate the
original judgment of conviction and sentence entered in this case, and
remand this case to the district court with directions to permit Moo-
ney to withdraw his guilty plea.
IT IS SO ORDERED.
2000) (same). This assignment of burdens is consistent with the long-
established common law rule that the burden of proving "affirmative
defenses ‘indeed, all circumstances . . . of justification, excuse or allevia-
tion’ rested on the defendant." Patterson v. New York, 432 U.S. 197, 202
(1977) (quoting Blackstone, 4 Commentaries *201).