SANTOS ARANGO-ORTIZ V. MARK NOOTH, No. 11-35730 (9th Cir. 2013)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 21 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT SANTOS LEONARDO ARANGOORTIZ, No. 11-35730 D.C. No. 3:10-cv-00966-ST Petitioner - Appellant, MEMORANDUM * v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent - Appellee. 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 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 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 state-court finding is in error. Taylor, 366 F.3d at 1000. Accordingly, he may not be granted habeas relief. AFFIRMED. 3
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