Moon v. Coursey

MEDERO P. MOON, Petitioner, v. RICK COURSEY, Respondent.

3:10-cv-00616-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

July 28, 2016

OPINION AND ORDER

LISA C. HAY

Federal Public Defender

C. RENÉE MANES

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, OR 97204

Attorneys for Petitioner

ELLEN F. ROSENBLUM

Attorney General

ANDREW HALLMAN

Assistant Attorney General

Department of Justice

1162 Court Street N.E.

Salem, OR 97301-4096

Attorneys for Respondent

BROWN, Judge.

Petitioner Medero P. Moon, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. In his Fifth Claim for Relief, Petitioner alleges his conviction for Kidnapping in the First Degree violates the Fifth and Fourteenth Amendments to the United States Constitution because there was insufficient evidence to convict him and he is actually innocent of that offense. Pet'r's Am. Habeas Pet. (ECF No. 13) at 14.¹

This Court previously denied habeas relief on the basis, inter alia, that Petitioner procedurally defaulted his available state remedies and was precluded from demonstrating actual innocence to excuse his procedural default. Findings and Recommendation (ECF No. 65) & Order (ECF No. 69). The Ninth Circuit reversed, holding Petitioner is not precluded from making a gateway showing of actual innocence and remanded to permit Petitioner to do so. Moon v. Coursey, No. 13-36155, Mem. Op. (ECF No. 73) at 1-3. For the reasons that follow, this Courtconcludes on remand that Petitioner has made a gateway showing of actual innocence² and that habeas relief is warranted.

BACKGROUND

I. The Crime

On August 20, 2000, Petitioner, Calvin Davis, and Jessica Rydman entered the home of Wayne Olson with the intent to commit a robbery. During the course of the robbery Petitioner killed Olson by shooting him in the back of the head at close range. Petitioner and Rydman subsequently surrendered to police and made incriminating statements. Gresham Police Detective Mike McGowen summarized Rydman's statements concerning the details of the crime as follows:

Ms. Rydman stated . . . she went up to the front door as Calvin and Medero hid around the corner. When the door opened Mr. Olson appeared to be happy to see Jessica and started to let her in. She stated that both Calvin Davis and Medero Moon then rushed the front door and forced their way into the residence. Calvin andMedero started yelling at Mr. Olson to get down to the fucking ground. Ms. Rydman stated when Medero came into the residence he had what appeared to be a 9mm handgun in his hand. She stated he was pointing the gun at Mr. Olson and demanding him to go to the ground.

* * *

[J]ust prior to leaving the residence Medero Moon stood over the top of Mr. Olson and fired one shot down in the direction of Mr. Olson's body.

Resp't Exs. to Answer - Part A (ECF No. 20), Ex. 117 at 13. See also Resp't Exs. 119, 121, & 124.

Rydman estimated they were in Olson's house for one-half hour. Resp't Ex. 117 at 5-6. With regard to the physical location of Olson during the course of the robbery, Rydman told police:

Medero Moon held the gun to Mr. Olson's body and told him not to move. Through the course of the half hour they were in the house the gun had been switched from Medero Moon into Calvin Davis' hands and Mr. Davis held the gun on Mr. Olson for a short period of time. After some time had elapsed Medero Moon took the gun back from Calvin Davis . . . .

* * *

Ms. Rydman stated Mr. Olson just laid on the ground and did no talking. She stated his dog laid beside him and that she heard absolutely nothing come from Mr. Olson's mouth. I asked if he was tied up and she stated he had his hands behind his back but she did not think he was actually tied up but that he did have something wrapped around his head.

Id. at 5-6. In a subsequent interview a police detective questioned Rydman about whether Olson was moved during the robbery:

HL: Did you ever see Mr. Olson resist or not cooperate with their orders?

Jr: No. The only time I really saw him is at the beginning and then hearing them telling him to get down. And then I remember when I was taking the pillowcases [of Mr. Olson's property] out [he was] just laying still.

HL: So from the whole time, from the time you met him at the door clear to the time he was killed you don't really remember him ever being moved other than laying right there?

JR: No.

Resp't Ex. 128 at 4.

Petitioner conveyed a similar story to Multnomah County Sheriff Detective Hollie Lincoln, which she summarized as follows:

Just as Mr. Olson answered the door, Medero held his gun out, stepped forward and pushed Jessica aside as she went through the doorway. Calvin was right behind Medero with his gun out. They both yelled at Mr. Olson to get on the floor and he complied. Jessica immediately ran to the other end of the house, with Calvin following her and Medero guarding Mr. Olson at gunpoint.

* * *

Calvin gave the 9mm back to Medero as they both stood just outside the door while Medero held the screen door open. Calvin told Medero that he knew what he had to do and that he had to kill the man. . . . Medero went back into the house and closed the door. He stood off to the side of Mr. Olson, who was still face down and blindfolded. Medero says that he pointed his gun at the back of Mr. Olson's head . . . when he fired.

Resp't Ex. 136 at 5-6.

A grand jury indicted Petitioner on charges of Aggravated Murder (six counts), Felony Murder (three counts), Robbery in the First Degree with a Firearm, Burglary in the First Degree with a Firearm, and Kidnapping in the First Degree with a Firearm. Resp't Ex. 102. The Kidnapping charge provides as follows:

[O]n or about August 20, 2000, in the County of Multnomah, State of Oregon, [Petitioner] did unlawfully and knowingly, without consent or legal authority, take WAYNE E OLSON from one place to another, with intent to interfere substantially with the said WAYNE E OLSON's personal liberty, and with the purpose of causing physical injury to WAYNE E OLSON, and during the commission of this felony, the [Petitioner] did use and threaten the use of a firearm, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

Id. at 3-4 (emphasis in original).

II. Petitioner's Plea and Sentencing

On May 20, 2002, Petitioner signed a plea petition agreeing to plead guilty to one count of Aggravated Murder (murder in the course of committing the crime of Robbery in the First Degree) and Kidnapping in the First Degree with a Firearm. Resp't Ex. 103 at 1. With regard to the kidnapping charge, Petitioner admitted he unlawfully and knowingly took Olson from one place to another intending to substantially interfere with his personal liberty and cause physical injury to him. Id. at 2. See also Tr. (ECF No. 19), Vol. 3 at 30-31. As part of the plea agreement Petitioner agreed to cooperate with the Multnomah County District Attorney's Office and to testify truthfully at all proceedings.Resp't Ex. 198. Had Petitioner had complied with the conditions of the plea agreement, his Kidnapping conviction would have been dismissed after five years. Tr., Vol. 3 at 39.

Petitioner, however, breached the plea agreement by refusing to testify against Calvin Davis. See Resp't Exs. to Answer - Part B (ECF No. 21), Ex. 187 at 1; Tr., Part C (ECF No. 87), Vol. 7 at 167-68. Consequently, on July 10, 2003, Petitioner was sentenced to a term of life with the possibility of parole in 30 years, for Aggravated Murder, and for a consecutive 230-month upward departure sentence for Kidnapping in the First Degree. Resp't Ex. 101. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Moon, 126 P.3d 4 (Or. App.), withdrawn on recons., 142 P.3d 105 (Or. App.), rev. denied, 148 P.3d 915 (Or. 2006).

III. Calvin Davis's Trial

Calvin Davis was tried separately on charges of Aggravated Murder (6 counts), Robbery in the First Degree, Burglary in the First Degree, Kidnapping in the Second Degree, Unauthorized Use of a Vehicle with a Firearm (2 counts), and Felon in Possession of a Firearm. Resp't Ex. 222. Jessica Rydman testified on behalf of the prosecution consistent with her previous statements to police. See Tr., Part C, Vol. 5 at 199.

Detective Hollie Lincoln testified to Petitioner's out-of-court statements to police:

Mr. Olson answered the door. Medero said he held his gun out, stepped forward, pushed Jessica aside, and went through the doorway and Calvin was right behind him with his gun out, and they are both yelling at Mr. Olson to get on the floor. He said Mr. Olson complied with them. . . . Medero began guarding Mr. Olson at gunpoint. . . . Medero told us that he and Calvin traded positions a few times guarding Mr. Olson at gunpoint.

* * *

. . . . And one of the times that he said that he came back to guard Mr. Olson, he noticed that Calvin had put a blindfold around Mr. Olson's head to cover his eyes.

* * *

And also during the time the three were searching, apparently Mr. Olson had asked for a drink of water, and Jessica got the water for him, and then Mr. Olson asked if they were going to kill him. And Medero thinks he told Mr. Olson just to be quiet, but nothing else was said.

* * *

. . . . Medero went back into the house. . . . He stood off to the side of Mr. Olson, who was still face down and blind-folded. He said he pointed the gun at the back of Mr. Olson's head . . . [and] fired one shot . . . .

Id., Vol. 7 at 177-81.

Glenna Olson, the decedent's wife, testified to the location of her husband's body when she discovered it:

[W]hen I went—there's two stairs up into the family room. And I know we have a big screen TV. That's the first thing you see when you step in.

* * *

At that point, I didn't even see that Wayne was laying two feet in front of me on the floor.

Tr., Part B (ECF No. 86), Vol. 4 at 79-80. See also Resp't Ex. 192 (diagrams of the Olson home). Multnomah County...