Donald Milton Orand v. United States

Our opinion of January 12, 1979, reported at 589 F.2d 472 , is withdrawn.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…