UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: September 22, 1971.
UNITED STATES OF AMERICA EX REL. ROBERT E. JOHNS, APPELLANT,
WARREN PINTO, SUP'T RAHWAY
Ganey, Van Dusen and Aldisert, Circuit Judges. Aldisert, Circuit Judge concurs in the affirmance of the District Court order of May 15, 1970.
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal challenges a May 15, 1970, district court order denying a petition for a writ of habeas corpus filed by a state prisoner on the ground that the absence of counsel for relator at two proceedings before a municipal judge, held under New Jersey Criminal Practice Rules 3:2-3, after he had been arrested as a result of the filing of complaints charging him with misdemeanors (see N.J.Stat.Ann. 2A:96-4) and high misdemeanors (see N.J.Stat.Ann. 2A:114-2), requires the vacating of his convictions and, at least, a remand to determine whether the absence of counsel was harmless error. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970). After careful consideration of this record, we have concluded that Coleman is inapplicable to this case because no preliminary hearing of the type held in Coleman, namely, "to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury" (399 U.S. at 8, 90 S. Ct. at 2002), was either required under New Jersey law*fn1 or was held in this case.
On December 22, 1967, as the result of complaints filed, relator was taken before the municipal judge who set bail and advised him of his constitutional rights pursuant to subsection (b) of the above-mentioned Rule 3:2-3.*fn2 Since relator was unable to make bail, he was committed to jail to await a preliminary hearing scheduled for December 28, 1967 (see Exhibit P-5). An additional complaint charging relator with violation of N.J.S. 2A:114-2 was filed on December 28, 1967, and, when he appeared that day for his preliminary hearing, he advised the judge "that he was unable to obtain an attorney." For this reason, the judge adjourned the preliminary hearing until January 15, 1968, and sent a request to the Public Defender to supply counsel for relator. On January 12, 1968, the Grand Jury returned indictments covering the charges contained in the complaints and under the New Jersey procedure (see note 1 above), no preliminary hearing was held. Counsel was assigned to represent relator on January 19, 1968.
Relator's contention that the state was required to provide counsel for him on December 22 and 28 and that such counsel might have secured his release on minimal or no bail or an early psychiatric examination (see Coleman at 9 of 399 U.S., at 2003 of 90 S. Ct.) is not supported by this record*fn3 and must be rejected.
Finally, it is noted that this court has held that Coleman should not be applied retroactively to preliminary hearings held prior to June 22, 1970.*fn4 See United States ex rel. Walker v. Maroney, 444 F.2d 47 (3rd Cir. 1971).*fn5
For the foregoing reasons, the district court order of May 15, 1970, will be affirmed.
ALDISERT, Circuit Judge, concurs in the affirmance of the district court order of May 15, 1970.