The petitioner asserts that he did not have effective assistance of counsel relative to the escape charge in that he was not represented at the preliminary hearing, and that his attorney appointed for his trial was not experienced, and did not have adequate time to prepare for trial. As to the lack of counsel at the preliminary hearing, petitioner makes no claim that anything then took place that was prejudicial nor that he did anything of an incriminatory nature, nor that anything which then transpired was used against him. He later entered a plea of not guilty, and the trial was had. Under our decisions in Latham v. Crouse, 320 F.2d 120 (10th Cir.); Johnson v. United States, 333 F.2d 371 (10th Cir.); Pearce v. Cox, 354 F.2d 884 (10th Cir.), and Engling v. Crouse, 357 F.2d 267 (10th Cir.), on these facts petitioner is not entitled to relief. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 2d 387, was decided after the above cited cases, and it directly concerned representation at a preliminary hearing. The Supreme Court there held that a preliminary hearing was a critical step in the proceedings, and counsel could provide the accused with much needed assistance.
The court, having interrogated the accused and his counsel with regard to the desire to change his plea and enter a plea of guilty, consented to the withdrawal and accepted the plea in open court by defendant and thereafter sentenced him concurrently in Nos. 9336 and 9335. This voluntary plea of guilty waived any subsequent attack in this case. Engling v. Crouse, 357 F.2d 267 (10th Cir. 1966); United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965). We, therefore, affirm the decision of the trial court in No. 9335.
Sobota, having voluntarily and understandingly pleaded guilty to the crime charged in the state district court, waived the procedural defects which occurred at the preliminary hearing. Engling v. Crouse, 10 Cir., 357 F.2d 267, cert. denied 379 U.S. 907, 85 S.Ct. 202, 13 L.Ed.2d 180; Pearce v. Cox, 10 Cir., 354 F.2d 884. Affirmed.
A guilty plea voluntarily entered constitutes a waiver of all non-jurisdictional defects at any prior stage in the proceedings. Emmett v. Balkcom, (5th Cir., 1966) 358 F.2d 302; Engling v. Crouse, (10th Cir., 1966) 357 F.2d 267; Gallegos v. Cox, (9th Cir., 1966) 358 F.2d 703; U.S. ex rel. Pizarro v. Fay, (2nd Cir., 1965) 353 F.2d 726. We will therefore deny petitioner the relief he seeks as to the question of counsel at preliminary hearing.
His plea of guilty in the district court after being fully advised of his right to counsel and having waived such right, forecloses reliance upon any prior procedural irregularity not shown to have been prejudicial. Sobota v. Rodriquez, 371 F.2d 909 (10th Cir. 1967); Engling v. Crouse, 357 F.2d 267 (10th Cir. 1966), cert. denied 379 U.S. 907, 85 S.Ct. 202, 13 L.Ed.2d 180; Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965); Latham v. Crouse, 320 F.2d 120 (10th Cir. 1963); Lovato v. Cox, 344 F.2d 916 (10th Cir. 1965). See also State of Utah v. Sullivan, 227 F.2d 511 (10th Cir. 1955), cert. denied, 350 U.S. 973, 76 S.Ct. 449, 100 L.Ed. 844 (1956).