Medero P. Moon v. Rick Coursey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEDERO P. MOON,
Petitioner - Appellant,
v.
RICK COURSEY,
Respondent - Appellee.
No. 13-36155
D.C. No. 3:10-cv-00616-HU
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 4, 2015
Portland, Oregon
Before: FISHER, PAEZ, and IKUTA, Circuit Judges.
Medero Moon appeals the denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291.
The district court erred in holding that, under Bousley v. United States, 523
U.S. 614, 623 (1998), Moon could not overcome procedural default under Schlup
FILED
APR 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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v. Delo, 513 U.S. 298, 315 (1995) by showing that he is actually innocent of
kidnaping. The district court held that Moon was barred from raising his Schlup
argument on the ground that Moon failed to show he was actually innocent of more
serious charges dismissed during plea bargaining. See Bousley, 523 U.S. at
623–24. However, in effect, no more serious charges were dismissed during plea
bargaining. The state did not forego any additional sentence it could have obtained
when it agreed to dismiss other aggravated murder charges in exchange for Moon
pleading guilty to one count of aggravated murder, because only one sentence can
be imposed for the aggravated murder charges under state law. See State v.
Barrett, 10 P.3d 901, 905–06 (Or. 2000). After Moon breached his plea
agreement, the state could have sought the maximum sentence of life without
parole on Count 1, murder in the course of robbery (as well as seeking a sentence
on kidnaping); the state had not made any agreement as part of plea bargaining that
would preclude it from seeking the maximum sentence after Moon breached the
agreement. Because the state did not forego its right to obtain the maximum
sentence available for the charges brought against Moon as part of plea bargaining,
Moon did not have to establish that he was actually innocent of other charges in
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order to raise his claim of actual innocence.1 Cf. Bousley, 523 U.S. at 617–18,
23–24. The state points to nothing in the record that would suggest it sought a
lesser sentence on the murder charge because it viewed the sentence for kidnaping
as a vehicle for imposing additional punishment for the murder. Moon, therefore,
would obtain no windfall if he is ultimately able to overturn his conviction and
sentence for kidnaping.
On remand, Moon may attempt to prove that he is actually innocent of
kidnaping under State v. Wolleat, 111 P.3d 1131 (Or. 2005), and the state “is not
limited to the existing record to rebut any showing that [Moon] might make” and
may “present any admissible evidence” of Moon’s guilt. See Bousley, 523 U.S. at
624.
Under the “doubly deferential standard of review” of Strickland and
AEDPA, see Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (internal quotation marks
omitted), the state court did not unreasonably apply Strickland v. Washington, 466
U.S. 668 (1984), in rejecting Moon’s claim that his counsel provided ineffective
assistance by advising him to plead guilty to kidnaping. See § 2254(d). The state
1 In a letter sent after oral argument, the state argues for the first time that
Moon could have been sentenced to 120 months for robbery in addition to the
sentence for aggravated murder. Because the state did not argue this in its briefs or
at oral argument, we will not address it here.
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court reasonably determined that counsel’s performance was adequate because the
law regarding whether Moon’s conduct constituted kidnaping was unsettled at the
time, see Wolleat, 111 P.3d at 1134, and counsel could have reasonably advised
Moon to plead guilty in order to obtain the benefits of the settlement agreement.
See Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011).
Each party will bear its own costs on appeal.
AFFIRMED in part, REVERSED and REMANDED in part.
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