Stanley C. Olsen v. E. C. Ellsworth

Petitioner sought habeas relief in federal district court after the Montana Supreme Court affirmed his conviction of burglary. The basic facts are summarized in State v. Olsen, 152 Mont. 1 , 445 P.2d 926 (1968). The district court denied relief after an evidentiary hearing, and petitioner appealed. We affirm.

Petitioner did not have counsel at his preliminary hearing held in 1966. If the rule announced in Coleman v. Alabama, 899 U.S. 1 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970), is to be applied retroactively, petitioner is entitled to relief on this ground, absent a showing that the deprivation of counsel was harmless beyond a reasonable doubt. All courts that have considered the question, however, have concluded that the rule of Coleman v. Alabama is to be applied prospectively only. *We agree, and can add nothing of substance to the discussion of the problem in the cases cited.

Petitioner argues, however, that in this particular case, lack of counsel resulted in a denial of due process because he was identified at trial by a witness who had identified him at the preliminary examination. To hold that this alone was sufficient to establish a denial of due process would be…