Robert J. Andrino v. United States Bd. of Parole, 550 F.2d 519 (9th Cir. 1977). · Go Syfert
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Robert J. Andrino v. United States Bd. of Parole, 550 F.2d 519 (9th Cir. 1977). Cases Citing This Book View Copy Cite
49 citation events (11 in the last 25 years) across 17 distinct courts.
Strongest positive: William Thornton v. Edmund G. Brown, Jr (ca9, 2014-02-18) · Strongest negative: Duke v. Warden (tnwd, 1978-11-17)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Statutes interpreted (leading-cases list)
#8 28 C.F.R. § 2.14 cited 2× in this case · 114 total citations of statute #4 28 C.F.R. § 2.1 cited 2× in this case · 49 total citations of statute
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited "but see" Duke v. Warden
W.D. Tenn. · 1978 · signal: but see · confidence high
Kortness v. United States, 514 F.2d 167 (8th Cir. 1975); Edwards v. United States, 574 F.2d 937 (8th Cir. 1978), cert. granted,-U.S.-, 99 S.Ct. 643 , -L.Ed.2d -; United States v. Salerno, 538 F.2d 1005 (3d Cir. 1976); Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974); but see Andrino v. United States Board of Parole, 550 F.2d 519 (9th Cir. 1977).
discussed Cited "but see" United States v. Leonard McIntosh (2×)
5th Cir. · 1978 · signal: but see · confidence high
See United States v. Salerno, 538 F.2d 1005 (3rd Cir. 1976); Kortness v. United States, 514 F.2d 167 (8th Cir. 1975); but see Andrino v. United States Bd. of Parole, 550 F.2d 519 (9th Cir. 1977).
discussed Cited as authority (rule) William Thornton v. Edmund G. Brown, Jr (2×)
9th Cir. · 2014 · confidence medium
A collateral attack on the sentence imposed brought under 28 U.S.C. § 2255 will not lie.”); Andrino, 550 F.2d at 520 (holding that a habeas petition under § 2241 is the appropriate vehicle for such attacks).
discussed Cited as authority (rule) William Thornton v. Edmund G. Brown, Jr
9th Cir. · 2014 · confidence medium
A collateral attack on the sentence imposed brought under 28 U.S.C. § 2255 will not lie.”); Andrino, 550 F.2d at 520 (holding that a habeas petition under § 2241 is the appropriate vehicle for such attacks). 24 THORNTON V.
discussed Cited as authority (rule) William Thornton v. Arnold Schwarzeneggar (2×)
9th Cir. · 2013 · confidence medium
Andrino v. United States Board of Parole, 550 F.2d 519 (9th Cir.1977) [(per curiam)], A collateral attack on the sentence imposed brought under 28 U.S.C. § 2255 will not lie.”); Andrino, 550 F.2d at 520 (holding that a habeas petition under § 2241 is the appropriate vehicle for such attacks).
discussed Cited as authority (rule) Bohner v. Daniels
D. Or. · 2003 · confidence medium
Subject Matter Jurisdiction Under 28 U.S.C. § 2211 A petition for writ of habeas corpus under 28 U.S.C. § 2241 may be filed only in the district court with “jurisdiction over the prisoner or his custodian.” Andrino v. United State Bd. of Parole, 550 F.2d 519, 520 (9th Cir.1977).
cited Cited as authority (rule) Joseph Tyler v. United States
9th Cir. · 1991 · confidence medium
Andrino v. United States Bd. of Parole, 550 F.2d 519, 520 (9th Cir.1977) (per curiam).
discussed Cited as authority (rule) Pedro Bennett, Jr. v. Arturo Soto, Chairman of Parole, Edwin Potter, Director of Bureau of Correction, Clavin R. Edwards, Warden of Lewisburg Prison
3rd Cir. · 1988 · confidence medium
See Ferri, 686 F.2d at 158 ; Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979); Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir.1977); United States v. DiRusso, 535 F.2d 673, 675 (1st Cir.1976); Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.), cert. denied, 429 U.S. 851 , 97 S.Ct. 140 , 50 L.Ed.2d 125 (1976); Zannino v. Arnold, 531 F.2d 687 , 689 n. 5 (3d Cir.1976).
discussed Cited as authority (rule) Scott v. United States
E.D. Va. · 1984 · confidence medium
See also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495 , 93 S.Ct. 1123, 1129 , 35 L.Ed.2d 443 (1972); U.S. v. Monteer, 556 F.2d 880, 881 (8th Cir.1977); Andrino v. U.S. Board of Parole, 550 F.2d 519, 520 (9th Cir.1977).
discussed Cited as authority (rule) United States of America, in Nos. 82-5103 82-5198 v. Francis D. Ferri A/K/A Rick Joseph Laverich, Kenneth R. Matthews, Kenneth R. Matthews, United States of America, in No. 82-3227 v. Honorable Rabe F. Marsh, United States District Judge for the Western District of Pennsylvania, Nominal Kenneth R. Matthews
3rd Cir. · 1982 · confidence medium
See Zannino v. Arnold, 531 F.2d 687 , 689 n.5 (3d Cir. 1976); Izsak v. Sigler, 604 F.2d 1205 , 1206 n.1 (9th Cir. 1979); Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977) (per curiam).
discussed Cited as authority (rule) United States v. Ferri
3rd Cir. · 1982 · confidence medium
See Zannino v. Arnold, 531 F.2d 687 , 689 n.5 (3d Cir. 1976); Izsak v. Sigler, 604 F.2d 1205 , 1206 n.l (9th Cir. 1979); Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977) (per curiam).
discussed Cited as authority (rule) Arthur Earl Robbins v. Glenn R. Thomas, Parole Agent, and United States Board of Parole (2×)
9th Cir. · 1979 · confidence medium
Andrino v. United States Bd. of Parole, 550 F.2d 519, 520 (9th Cir. 1977).
cited Cited as authority (rule) John Dioguardi v. United States
2d Cir. · 1978 · confidence medium
See United States v. McBride, 560 F.2d 7, 10 (1st Cir. 1977); Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977).
discussed Cited "see" United States v. Michael Glynn, Sr.
6th Cir. · 1992 · signal: see · confidence high
See Andrino v. United States Bd. of Parole, 550 F.2d 519, 520 (9th Cir.1977) (per curiam). 5 Moreover, a recent Supreme Court decision holds that authority to award sentencing credit under § 3585(b) is granted by Congress to the Attorney General rather than to the sentencing court.
discussed Cited "see" Al Walter Bolden, Also Known as Earl Scott, Also Known as Joe Lee Bailey, Also Known as Al Bowman v. United States
6th Cir. · 1992 · signal: see · confidence high
See Andrino v. United States Bd. of Parole, 550 F.2d 519, 520 (9th Cir.1977) (per curiam). 5 Moreover, the Supreme Court recently held in United States v. Wilson, 112 S.Ct. 1351 (1992), that the authority to award sentencing credit under 18 U.S.C. § 3585 (b) is granted by Congress to the Attorney General, rather than the sentencing court.
cited Cited "see" Howard L. Hain v. George E. Killinger
4th Cir. · 1990 · signal: see · confidence high
See Andrino v. United States Bd. of Parole, 550 F.2d 519 (9th Cir.1977).
cited Cited "see" Moss v. Clark
E.D. Va. · 1988 · signal: see · confidence high
See Andrino v. United States Board of Parole, 550 F.2d 519 (9th Cir.1977).
cited Cited "see" Charles Musto v. United States
3rd Cir. · 1978 · signal: see · confidence high
See Andrin v. United States Bd. of Parole, 550 F.2d 519 (9th Cir. 1977); United States v. McBride, 560 F.2d 7 (1st Cir. 1977).
cited Cited "see" Richard Paul Elliott v. United States
9th Cir. · 1978 · signal: see · confidence high
See Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977); Tedder v. United States Board of Parole, 527 F.2d 593 , 594 n.1 (9th Cir. 1975).
cited Cited "see" United States v. Lawrence Francis McBride
1st Cir. · 1977 · signal: see · confidence high
See Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977) (per curiam).
cited Cited "see, e.g." Nathaniel Errol Smith v. United States
8th Cir. · 1980 · signal: see, e.g. · confidence medium
See, e. g., Andrino v. United States Board of Parole, 550 F.2d 519, 520 (9th Cir. 1977).
Retrieving the full opinion text from the archive…
Robert J. ANDRINO, Plaintiff-Appellee,
v.
UNITED STATES BOARD OF PAROLE, Defendant-Appellant
76-1366.
Court of Appeals for the Ninth Circuit.
Mar 21, 1977.
550 F.2d 519
William C. Smitherman, U. S. Atty., Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., Richard L. Thornburgh, Asst. Atty. Gen., George W. Calhoun, Glenda G. Gordon, Attys., argued, Sp. Litigation Section, Crim. Div., Dept, of Justice, Washington, D. C., for defendant-appellant., Michael D. Kimerer argued, Phoenix, Ariz., for plaintiff-appellee.
Hufstedler, Wright, Lydick.
Cited by 40 opinions  |  Published
[*520] PER CURIAM:

Petitioner was convicted in 1972 of extortion and firearms offenses and sentenced to two five-year concurrent terms and twelve two-year terms to run concurrently with each other and consecutively to the five-year terms. [1] We upheld Andrino’s convictions and he began to serve his seven year sentence in November 1974.

The Board of Parole published new policy guidelines between the time of Andrino’s sentence and his incarceration. 28 C.F.R. § 2.1 et seq. (1974). At his initial parole hearing these were applied and he was found ineligible for parole. His case was continued for 36 months, the maximum period permitted under the regulations at the time. 28 C.F.R. § 2.14(d) (1974). [2]

Andrino filed a motion for modification of sentence under 28 U.S.C. § 2255 in November 1975. He contended that the district court would not have imposed the same sentence had it known the parole guidelines would be applied to postpone his parole. The district court, after a hearing, relied upon Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), and modified the sentence so that all sentences would be served concurrently. The Government appeals.

In Kortness v. United States, supra, the Eighth Circuit held that a sentence imposed under 18 U.S.C. § 4208(a)(2) without knowledge of the parole policy guidelines followed by the Board of Parole, 28 C.F.R. § 2.1 et seq., was a sentence “otherwise subject to collateral attack” within the meaning of 28 U.S.C. § 2255 and that the sentencing court therefore had authority to modify the sentence. Accord, United States v. Salerno, 538 F.2d 1005 (3d Cir. 1976); contra, Thompson v. United States, 536 F.2d 459 (1st Cir. 1976); cf. United States v. Slutsky, 514 F.2d 1222 (2d Cir. 1975) [unawareness of Board’s guidelines mandated district court’s reconsideration of sentence on prisoner’s motion under Fed.R. Crim.P. 35].

Our Circuit has not adopted the Kortness rationale, with or without the limitation of United States v. White, 540 F.2d 409 (8th Cir. 1976). [3] We decline to do so in this case. Rather, we adhere to the view that we expressed in Tedder v. United States Board of Parole, 527 F.2d 593, 594, n.1 (9th Cir. 1975), that a petition for habeas corpus, rather than a Section 2255 motion, is the proper vehicle for obtaining judicial review of parole board decisions under 28 U.S.C. § 2241. Cf. Ridenour v. United States, 446 F.2d 57 (9th Cir. 1971).

The district court could not treat the Section 2255 motion as a misbranded habeas petition, because the writ can only be sought from a district court with jurisdiction over the prisoner or his custodian. Braden v. 30th Judicial Circuit Court, 4-10 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). That condition was not met.

Vacated and remanded to dismiss for lack of jurisdiction.

1

. The five-year sentences were imposed pursuant to 18 U.S.C. § 4208(a)(2). The two-year sentences were imposed under 18 U.S.C. § 924(a). Both statutes provide for parole “as the Board of Parole shall determine.”

2

. The current regulations provide for meaningful consideration of parole not later than the one-third point of the sentence. 28 C.F.R. § 2.14(d), (e) (1976).

3

. The Kortness court may have been influenced by the Eighth Circuit’s rule that decisions to grant or deny parole are not subject to judicial review. Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967). In contrast, our Circuit permits limited judicial review. E. g., Grattan v. Sigler, 525 F.2d 329 (9th Cir. 1975).