Medero Moon v. Rick Coursey

MEMORANDUM

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 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998), Moon could not overcome procedural default under Schlup v. Delo, 513 U.S. 298, 315 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (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 , 118 S.Ct. 1604 . 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, 331 Or. 27 , 10 P.3d 901, 905-06 (2000). After Moon breached his plea…