                                                                           FILED
                            NOT FOR PUBLICATION                             APR 01 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MEDERO P. MOON,                                  No. 13-36155

              Petitioner - Appellant,            D.C. No. 3:10-cv-00616-HU

  v.
                                                 MEMORANDUM*
RICK COURSEY,

              Respondent - Appellee.


                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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




                                         2
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.

                                           3
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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