445 F2d 306 Moses v. A Eyman

445 F.2d 306

Isom MOSES, Petitioner,
Frank A. EYMAN, Superintendent, Arizona State Prison, Respondent.

No. 24983.

United States Court of Appeals, Ninth Circuit.

June 2, 1971.

William E. Boyd, Tucson, Ariz. (argued), Gerald W. Alston, Phoenix, Ariz., for petitioner.

Roderic A. Dietz, Asst. Atty. Gen. (argued), Thomas M. Tuggle, Asst. Atty. Gen., Gary Nelson, Atty. Gen., Phoenix, Ariz., for respondent.

Before HAMLEY and KOELSCH, Circuit Judges, and GOODWIN, District Judge.*


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The issues in this habeas corpus appeal by an Arizona prisoner revolve around his allegations, unresolved by an evidentiary hearing, that, being indigent, he requested the assistance of appointed counsel and the presence of a court reporter at his preliminary hearing, and that these requests were denied. The preliminary hearing was held in 1964, and the background facts are stated in State v. Moses, 101 Ariz. 426, 420 P.2d 560 (1966), affirming the conviction.


Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), enlarging the concept of "rights or defenses" which may render a preliminary hearing a "critical stage" of a criminal proceeding, is to be applied prospectively only. Olsen v. Ellsworth, 438 F.2d 630 (9th Cir. 1971); Brown v. Craven, 438 F.2d 334 (9th Cir. 1971). The district court opinion herein, reported in 328 F. Supp. 1227, correctly states the applicable law as it existed prior to Coleman.


For the reasons stated in that opinion, we affirm.



The Honorable Alfred T. Goodwin, United States District Judge for the District of Oregon, sitting by designation