UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 24, 1971.
UNITED STATES OF AMERICA EX REL. EDWIN WALKER, APPELLANT,
JAMES F. MARONEY, SUPERINTENDENT STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNA.
McLaughlin and Van Dusen, Circuit Judges, and Hannum, District Judge.
Author: Per Curiam
Opinion OF THE COURT
This case challenges a May 22, 1970, district court order denying a petition for a writ of habeas corpus filed by a state prisoner sentenced to life imprisonment for first degree murder on September 9, 1957, after a hearing to determine the degree of murder following the entry of a guilty plea with the advice of counsel. The thorough opinion of Judge Higginbotham, 313 F. Supp. 237, with which, after consideration of the record as well as of the arguments and briefs of counsel, we are in agreement, makes it unnecessary for us to recite the lengthy history of the proceedings involving relator in both the state and federal courts, the facts,*fn1 or the issues (particularly as to the voluntariness of the confession) raised in the district court and in this court, except as to the issue discussed below. See United States ex rel. Walker v. Maroney, 313 F. Supp. 237 (E.D.Pa.1970).*fn2 We note that many of the issues argued here had previously similarly been determined in the case of relator's co-defendant Crowson. See United States ex rel. Crowson v. Brierley, 300 F. Supp. 1175 (E.D.Pa.1968), aff'd 411 F.2d 910 (3d Cir. 1969).
Relying on Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), decided after the district court opinion and order of May 22, 1970, relator contends that such district court order must be reversed because he had no counsel at the time of his preliminary hearing.*fn3 It has been consistently held by the great majority of federal courts, as well as the Pennsylvania appellate courts, prior to the Coleman decision, that a preliminary hearing is not a critical stage in the criminal procedure in the state court, absent some special circumstances. See, e. g., United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); Pagan Cancel v. Delgado, 408 F.2d 1018 (1st Cir. 1969); United States ex rel. Budd v. Maroney, 398 F.2d 806 (3d Cir. 1968) (Pennsylvania); Carr v. Henderson, 385 F.2d 531 (6th Cir. 1967), cert. denied 391 U.S. 956, 88 S. Ct. 1864, 20 L. Ed. 2d 871 (1968); Rambo v. Peyton, 380 F.2d 363 (4th Cir. 1967); Thompson v. Pepersack, 270 F. Supp. 793 (D.Md.1967), aff'd sub nom., Thompson v. Warden, 413 F.2d 454 (4th Cir. 1969), cert. denied 397 U.S. 950, 90 S. Ct. 972, 25 L. Ed. 2d 131 (1970). We have concluded that Coleman should not be applied retroactively to the preliminary hearing on July 30, 1957, for the reasons clearly stated in Phillips v. North Carolina, 433 F.2d 659 (4th Cir. 1970), and Konvalin v. Sigler, 431 F.2d 1156 (8th Cir. 1970). See also United States ex rel. Bonner v. Pate, 430 F.2d 639 (7th Cir. 1970); Commonwealth v. James, supra 269 A.2d at 900.
For the foregoing reasons, the district court order will be affirmed.