Bernard G. McCusker v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

Bernard G. McCusker appeals from a denial of his petition for a writ of habeas corpus. The petition raised questions of law and of fact which the parties stipulated required an evidentiary hearing.

The matter was referred to a United States magistrate who proceeded to conduct an evidentiary hearing and thereafter filed a Recommendation that the petition be denied. It was dated June 29, 1973. To it was attached an Order signed by the District Court on July 6, 1973, as follows:

Thereafter a motion to vacate the Recommendation and Order was filed which raised the principal question at issue here, i. e., whether this hearing had to be before a United States judge. The motion was denied.

Preliminarily, we consider the argument of the Government that by the failure of the petitioner to object to the hearing before the magistrate prior to the date upon which it took place and by participating therein, he has waived his right to insist upon an evidentiary hearing before a United States judge. We do not accept the Government’s position. If the authority of the magistrate to hold such hearings is invalid because it is inconsistent with the laws of the United States under 28…