Opinion
No. 7902.
January 19, 1965.
Robert A. Backus, of Schmidt Van Cise, Denver, Colo., for appellant.
L.D. Harris, Sp. Asst. Atty. Gen., for State of New Mexico (Earl E. Hartley, Atty. Gen., of State of New Mexico, on the brief), for appellee.
Before PICKETT, LEWIS and SETH, Circuit Judges.
The appellant Gallegos is confined in the New Mexico State Penitentiary pursuant to a sentence imposed for the unlawful sale of marihuana. After exhausting his remedies in state court, he brought this habeas corpus proceeding in the United States District Court for the District of New Mexico, alleging that the sentence is invalid because he had not been furnished counsel at a preliminary hearing and later upon arraignment in the District Court of McKinley County, New Mexico, where he pleaded not guilty to an indictment. At his trial in state court the appellant was represented by counsel of his own selection.
After a hearing in this habeas corpus proceeding, the trial court dismissed the petition, and properly so. Appellant did not testify at the preliminary hearing in state court, and no contention is made that any incriminating statements were made then or upon his arraignment. Under these circumstances no prejudice is shown. Downing v. New Mexico State Supreme Court, 10 Cir., 339 F.2d 435; Lathan v. Crouse, 10 Cir., 320 F.2d 120; Utah v. Sullivan, 10 Cir., 227 F.2d 511, certiorari denied, sub nom. Braasch v. Utah, 350 U.S. 973, 76 S.Ct. 449, 100 L. Ed. 844.
Affirmed.