Santos Leonardo Arango- Ortiz v. MARK NOOTH, Superintendent, Snake River Correctional Institution

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTOS LEONARDO ARANGO-
ORTIZ,
Petitioner - Appellant,
v.
MARK NOOTH, Superintendent, Snake
River Correctional Institution,
Respondent - Appellee.
No. 11-35730
D.C. No. 3:10-cv-00966-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted May 8, 2013
Portland, Oregon
Before: GOODWIN, REINHARDT, and HURWITZ, Circuit Judges.
Santos Leonardo Arango-Ortiz seeks a writ of habeas corpus, alleging that
he received constitutionally ineffective assistance of counsel that rendered his
FILED
MAY 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2
guilty plea involuntary. Strickland v. Washington, 466 U.S. 668 (1984); Hill v.
Lockhart, 474 U.S. 52, 59 (1985). The district court denied the writ. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The state post-conviction court rejected Arango-Ortiz’s claim because he
was not a credible witness. Because an adverse credibility finding is dispositive of
the Strickland claim, Arango-Ortiz may not be granted habeas relief unless he can
overcome this finding through an “intrinsic” challenge under 28 U.S.C.
§ 2254(d)(2) or an “extrinsic” challenge under 28 U.S.C. § 2254(e)(1). See Taylor
v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004). In his intrinsic challenge,
Arango-Ortiz argues that the state court’s fact-finding procedure was defective,
citing cases in which this court suggested that resolving a credibility contest
without hearing live testimony was defective. Nunes v. Mueller, 350 F.3d 1045
(9th Cir. 2003); Hibbler v. Benedetti, 693 F.3d 1140, 1147-48 (9th Cir. 2012)
(citing Earp v. Ornoski, 431 F.3d 1158, 1169-70 & n.8 (9th Cir. 2005)). Here,
however, Arango-Ortiz was permitted to testify, and it was on the basis of his live
testimony that the state court found his allegations not credible. Sophanthavong v.
Palmateer, 378 F.3d 859, 867 (9th Cir. 2004). Nor can Arango-Ortiz prevail on his
extrinsic challenge, as he has failed to present “clear and convincing proof that the

-- 2 of 3 --

3
state-court finding is in error.” Taylor, 366 F.3d at 1000. Accordingly, he may not
be granted habeas relief.
AFFIRMED.

-- 3 of 3 --