McKeldin v. Rose
| Decision Date | 08 October 1980 |
| Docket Number | No. 80-1198,80-1198 |
| Citation | 631 F.2d 458 |
| Parties | Darryl Lamont McKELDIN, Petitioner-Appellee, v. Jim ROSE, Warden, Tennessee State Penitentiary and William M. Leech, Jr., Attorney General, State of Tennessee, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William M. Leech, Jr., Atty. Gen., William P. Sizer, Asst. Atty. Gen., Nashville, Tenn., for respondents-appellants.
Jerry H. Summers, Chattanooga, Tenn. for petitioner-appellee.
Before LIVELY and JONES, Circuit Judges, and LAMBROS, * District Judge.
The State of Tennessee appeals from a judgment of the district court granting habeas corpus relief to the petitioner McKeldin. The question in the case is whether the absence of counsel at a preliminary hearing on a felony charge requires automatic reversal, or whether this admitted denial of a constitutional right may be held harmless error. We conclude that the constitutional infringement disclosed in this case is subject to a harmless error analysis and, accordingly, reverse the judgment of the district court.
The petitioner was represented at the preliminary hearing by a court-appointed counsel who was subsequently discovered never to have been licensed to practice law. He was represented at trial, some eight months later, by a licensed attorney. Following his conviction of armed robbery, affirmed by the intermediate court of appeals, McKeldin appealed to the Supreme Court of Tennessee. On November 12, 1974 that court conditionally vacated the conviction and remanded to the trial court for determination of whether absence of an attorney at the preliminary hearing was harmless error. McKeldin v. State, 516 S.W.2d 82 (Tenn.1974). Following an evidentiary hearing, the trial court found that the absence of an attorney at the preliminary hearing constituted harmless error on the facts found. This decision was affirmed by the Court of Criminal Appeals of Tennessee, McKeldin v. State, 534 S.W.2d 131 (Tenn.Crim.App.1975), and certiorari was denied, first by the Tennessee Supreme Court and ultimately by the Supreme Court of the United States, McKeldin v. Tennessee, 425 U.S. 901, 96 S.Ct. 1490, 47 L.Ed.2d 751 (1976).
McKeldin next filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Tennessee. In that proceeding the State conceded that there had been a denial of effective assistance of counsel, but argued that the error was harmless beyond a reasonable doubt. On the basis of an "extensive record," the district court concluded that the Tennessee courts which had considered the issue had properly held that the error in McKeldin's case was harmless beyond a reasonable doubt. The district court further held that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), precludes a finding that denial of effective assistance of counsel at a preliminary hearing is per se prejudicial where the state claims the error was harmless.
Following dismissal of his habeas corpus action in the Middle District of Tennessee, McKeldin filed the present habeas corpus action in the Eastern District of Tennessee. Though the basis of the claim for relief is the same here as in the Middle District, the judge of the Eastern District concluded that the second petition could be considered because it presented purely legal issues which had been addressed in authoritative decisions subsequent to the decision of the Middle District. On appeal the State does not question this exercise of the district court's discretion. See Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Rule 9(b), Rules Governing Section 2254 cases.
The district court in the present case found that a preliminary hearing is a critical stage in criminal proceedings under Tennessee law. This is not disputed by the State. The district court then went on to hold that denial of assistance of counsel at a preliminary hearing may never be treated as harmless error. This finding was based primarily on the following language in Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978):
Moreover, this Court has concluded that the assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, supra, (386 U.S.), at 23, (87 S.Ct., at 827). Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 (83 S.Ct. 792, 9 L.Ed.2d 799) (1963); Hamilton v. Alabama, 368 U.S. 52 (82 S.Ct. 157, 7 L.Ed.2d 114) (1961); White v. Maryland, 373 U.S. 59 (83 S.Ct. 1050, 10 L.Ed.2d 193) (1963).
The district court also relied on People v. Felder, 47 N.Y.2d 287, 418 N.Y.S.2d 295, 391 N.E.2d 1274 (1979).
Neither Holloway nor Felder involved preliminary hearings. Both involved ineffective assistance of counsel at trial. It is established beyond question that denial of effective assistance of counsel at trial may never be treated as harmless error. However, the Supreme Court in Coleman v. Alabama, supra, provided specifically for a determination of whether denial of counsel at a preliminary hearing was harmless error. While recognizing that a preliminary hearing is a critical stage in Alabama criminal proceedings, the Court, through Mr. Justice Brennan, dealt with the proper relief for one denied counsel at a preliminary hearing as follows:
But on the record it cannot be said whether or not petitioners were otherwise prejudiced by the absence of counsel at the preliminary hearing. That inquiry in the first instance should more properly be made by the Alabama courts. The test to be applied is whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 386 U.S. 18 (87 S.Ct. 824, 17 L.Ed.2d 705) (1967). See United States v. Wade, supra, (388 U.S.), at 242, 87 S.Ct. at 1940.
Coleman v. Alabama, supra, 399 U.S. at 10-11, 90 S.Ct. at 2004.
We do not believe the quotation from Holloway indicates...
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