Orand v. U.S., No. 77-3458

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT and GOODWIN; EUGENE A. WRIGHT
Citation602 F.2d 207
PartiesDonald Milton ORAND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Decision Date08 August 1979
Docket NumberNo. 77-3458

Page 207

602 F.2d 207
Donald Milton ORAND, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 77-3458.
United States Court of Appeals,
Ninth Circuit.
Aug. 8, 1979.
As Corrected Aug. 14, 1979.

Donald Milton Orand, pro. per.

William W. Youngman, Asst. U. S. Atty., Portland, Or., on brief for United States.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT and GOODWIN, Circuit Judges, and THOMPSON, * Senior District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Our opinion of January 12, 1979, reported at 589 F.2d 472, is withdrawn. The mandate had been issued on February 6 but was recalled on March 26 when Orand was permitted to file a late petition for rehearing. The petition was granted. This opinion is substituted for the earlier one.

Orand's conviction for armed bank robbery was affirmed and his petition for writ of certiorari denied. United States v. Orand, 491 F.2d 1173 (9th Cir.), Cert. denied, 414 U.S. 1006, 94 S.Ct. 365, 38 L.Ed.2d 243 (1973). His motion for modification of sentence was denied and he has appealed from the denial of his § 2255 petition. We reverse and remand.

An evidentiary hearing on his § 2255 petition was held by a magistrate under Rule 8(b), Rules Governing Section 2255 Proceedings, and 28 U.S.C. § 636(b)(1) (B). The magistrate recommended denial and the district court adopted that recommendation. We conclude, contrary to Orand's assertion, that a magistrate rather than a judge may conduct a postconviction evidentiary hearing.

Orand cites Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), which held that an article III judge rather than a magistrate must conduct a § 2254 evidentiary hearing. The Court reached that result by its reading of congressional intent as revealed in the Magistrates Act, 28 U.S.C. §§ 631-639 (1970), and in 28 U.S.C. § 2243 (1970). See 418 U.S. at 469-

Page 208

74, 94 S.Ct. 2842. 1 This court reversed and remanded a habeas corpus case for further proceedings before an article III judge in light of Wingo. McCusker v. Cupp, 506 F.2d 459, 460 (9th Cir. 1974).

In 1976, however, Congress amended the Magistrates Act in direct response to the holding in Wingo. Congress clearly expressed its intent that magistrates may conduct evidentiary hearings in postconviction relief proceedings. 28 U.S.C. § 636(b)(1)(B) (1976).

The Fifth Circuit addressed the question presented here and held that, notwithstanding Wingo and McCusker, a magistrate may conduct an evidentiary hearing in a postconviction proceeding:

The legislative history to the 1976 statute clearly and firmly states the opinion of Congress that Wingo was wrongly decided and that the Supreme Court erroneously interpreted the intent of the earlier Congress which had adopted the Magistrates Act.

White v. Estelle, 556 F.2d 1366, 1367-68 (5th Cir. 1977) (citing H.R.Rep.No.1609, 94th Cong., 2d Sess., Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 6162-74). 2

We adopt the analysis and holding of White that a magistrate may conduct a postconviction evidentiary hearing. 3 It makes good sense and is efficient judicial administration to delegate responsibilities to magistrates who perform commendable work as part of the federal judicial system.

Commendable as that work...

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1419 practice notes
  • Karis v. Vasquez, No. Civ. S-89-0527 LKK JFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 5, 1993
    ...no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979). All of the magistrate's conclusions of law are reviewed de novo. See Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989......
  • McCarthy v. Manson, Civ. No. H 80-263.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 3, 1982
    ...supra, at 4. Even assuming that Wedding were still good law, as to which there is considerable doubt, see, e.g., Orand v. United States, 602 F.2d 207 (9th Cir.1979), the passage in Wedding relied upon by respondent does not support respondent's argument. The Senate Report quoted by the Cour......
  • HTS, Inc. v. Boley, No. CV–12–835–PHX–SMM (BSB).
    • United States
    • U.S. District Court — District of Arizona
    • June 21, 2013
    ...the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir.1974)). By failing to object to a Report and Recomme......
  • Rouser v. White, No. Civ. S-93-767 LKK/GGH P.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 28, 1996
    ...and decide the motion on applicable law. See United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989) (citing Orand v. United States, 602 F.2d 207, 208 (9th The court is not bound to adopt the magistrate judge's Findings and Recommendations; on the contrary, the court must exercise "......
  • Request a trial to view additional results
1359 cases
  • Karis v. Vasquez, No. Civ. S-89-0527 LKK JFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 5, 1993
    ...no objection has been made, the court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979). All of the magistrate's conclusions of law are reviewed de novo. See Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1989......
  • McCarthy v. Manson, Civ. No. H 80-263.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 3, 1982
    ...supra, at 4. Even assuming that Wedding were still good law, as to which there is considerable doubt, see, e.g., Orand v. United States, 602 F.2d 207 (9th Cir.1979), the passage in Wedding relied upon by respondent does not support respondent's argument. The Senate Report quoted by the Cour......
  • HTS, Inc. v. Boley, No. CV–12–835–PHX–SMM (BSB).
    • United States
    • U.S. District Court — District of Arizona
    • June 21, 2013
    ...the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir.1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir.1974)). By failing to object to a Report and Recomme......
  • Rouser v. White, No. Civ. S-93-767 LKK/GGH P.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 28, 1996
    ...and decide the motion on applicable law. See United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989) (citing Orand v. United States, 602 F.2d 207, 208 (9th The court is not bound to adopt the magistrate judge's Findings and Recommendations; on the contrary, the court must exercise "sound......
  • Request a trial to view additional results

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