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

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WRIGHT and GOODWIN; EUGENE A. WRIGHT
• Citation: 602 F.2d 207
• Parties: Donald Milton ORAND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Decision Date: 08 August 1979
• Docket Number: No. 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Our opinion of January 12, 1979, reported at 589 F.2d 472, is withdrawn.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...