Scarbrough v. Dutton, 393 F.2d 6 (5th Cir. 1968)

PER CURIAM:

Appellant is now serving a life sentence for murder in the Georgia State Penitentiary. After a full evidentiary hearing in the Federal Court on the disputed fact issues his petition for a writ of habeas corpus was denied by the District Judge. Cf. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Appellant presents two points of error, both of which we find to be without merit, and we therefore affirm the decision of the District Court.

Appellant initially contends that he was denied due process of law because he was incarcerated for seven months prior to trial without ever having had a preliminary hearing. In Georgia, the only purpose of a preliminary hearing is to determine whether probable

cause exists to hold a person for trial. This hearing in Georgia, as in most other states, is not per se a critical stage of a criminal proceeding. See Moore v. State, 113 Ga.App. 738, 149 S.E.2d 492. An accused is not required at this hearing to make any pleas or raise any defenses and no rights may be lost which would prejudice his defense at a later trial. In fact, Appellant does not contend here that any rights were lost by him because of a failure to have a preliminary hearing. Cf. Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The failure to hold a preliminary hearing, without more, does not amount to a violation of constitutional rights which would vitiate the subsequent conviction. See Graves v. Eyman, 9 Cir., 1967, 373 F.2d 324; Chester v. People of State of California, 9 Cir., 1966, 355 F.2d 778; Pappillion v. Beto, S.D.Tex., 1966, 257 F.Supp. 502; cf. Hamilton v. State of Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Also, Appellant had counsel for at least three months before trial and there is no contention that his attorney did not do everything necessary to secure a fair trial.

Appellant also contends that he was sentenced before the jury returned its verdict. The Trial Judge found as a fact that this was not true and the evidence supports this finding. See Phillips v. Dutton, 5 Cir., 1967, 378 F.2d 898; Williams v. Beto, 5 Cir., 1965, 354 F.2d 698; Post v. Boles, 4 Cir., 1964, 332 F.2d 738, cert. denied, 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274.

Affirmed.

FAHY, Circuit Judge

(dissenting):

Due to Georgia statutory developments since the decision of the District Court I would vacate its order and remand the case for dismissal of the application for the writ with leave to appellant to resort to the present habeas corpus procedures of the State of Georgia which became effective during the pendency of this appeal. The decision of federal questions, if any, which thereafter might arise, would await the result. The Georgia procedures referred to became effective July 1, 1967, through the Ha-beas Corpus Act of 1967, Ga.Code Ann. § 50-101 et seq. (Supp.1967). See Appendix to McGarrah v. Dutton, 5th Cir., 381 F.2d 161, 166 et seq. And see 28 U.S.C. § 2254.

My doubts about the merits are serious enough to lead me to desire to avoid a decision which does not afford appellant an opportunity to proceed under the new Georgia statute. Compare the recent decision of this court in Kerr v. Dutton, 5th Cir., 393 F.2d 79. The case of Moore v. State, 113 Ga.App. 738, 738, 149 S.E.2d 492, 493, to the effect that the commitment hearing in Georgia “is not inherently a critical stage of a criminal proceeding,” citing Molignaro v. Balkcom, 221 Ga. 150, 143 S.E.2d 748, and Blake v. State, 109 Ga.App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S.Ct. 281, 13 L.Ed.2d 337, and see Kerr v. Dutton, supra, does not foreclose the question whether in the circumstances before us it might well be a critical stage. Moreover, the Georgia cases referred to, as well as Graves v. Eyman and Chester v. People of State of California, sited in the court's opinion, involved the right to counsel at a preliminary hearing, whereas our case involves the right to a preliminary hearing itself. Arrested for murder in May appellant remained in confinement, without counsel and apparently without advice with respect to counsel, for some three to four months. See McGarrah v. Dutton, supra. He was tried in December on an indictment returned in November. On this record all we know respecting the representation of appellant is that three or four months prior to trial, which was three or four months after his arrest and detention, he had counsel. We know nothing more. A capital case which comes along in this fashion, without compliance with the command of the applicable Georgia statutes regarding

a preliminary hearing,1 is not necessarily controlled, in my opinion, by rulings that lack of counsel at a preliminary hearing does not necessarily render some or all subsequent proceedings nugatory. In Manor v. State, 221 Ga. 886, 868-869, 148 S.E.2d 305, 307, the right to a preliminary or commitment hearing is characterized as:

This view was repeated in the following dicta in Whitfield v. State of Georgia, 115 Ga.App. 231, 231-232, 154 S.E.2d 294, 296:

Assuming there is no independent federal constitutional right to a preliminary hearing, where state law guarantees such a hearing to the accused it “becomes a federal constitutional guarantee * as a part of the due process of the state, which must be afforded equally to all defendants.” Guerra v. Rodriguez, 10th Cir., 372 F.2d 472, 473.

The discovery aspects of a preliminary hearing are not the only factor bearing upon the possibility of prejudice in this case. There is the additional factor of protracted delay in representation, accompanied, insofar as the record before us discloses, with no advice as to his right to counsel.