William B. Donlavey v. S. Lamont Smith, Warden, Georgia State Prison, Reidsville, Georgia

Petitioner, having been previously denied a writ of habeas corpus by this court, now requests that we reconsider our decision (Donlavey v. Smith, 5 Cir., 1970, 426 F.2d 800) in light of the Supreme Court’s recent pronouncement in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), concerning the right to have an appointed attorney present at the state preliminary hearing.

In our prior decision, supra, we refused to decide the lack of counsel contention because the state court had not dealt with the issue and, thus, petitioner failed to exhaust his available state remedies. 28…