Donald Milton Orand v. United States

Orand was originally convicted of armed bank robbery. His conviction was affirmed and his petition for 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). He filed a motion for modification of sentence, which was properly denied. He now appeals the denial of his § 2255 petition. We affirm.

' An evidentiary hearing on his § 2255 petition was held by a magistrate pursuant to Rule 8(b), Rules Governing Section 2255 Proceedings, and 28 U.S.C. § 636 (b)(1)(B). The magistrate recommended denial of the petition and the district court adopted that recommendation. The issue here is whether a magistrate rather than a judge may conduct a post-conviction evidentiary hearing. We conclude that he may.

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. §§ 631-39 (1970), and in 28 U.S.C. § 2243 (1970). See 418 U.S. at 469-74 , 94 S.Ct. 2842 . In a per curiam…