source: Caselaw Access Project

author: MINER, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Sheldon BUSCHEL, a/k/a Robert G. Solomon and Mark T. Hein.
    No. 84-CR-26.
    United States District Court, N.D. New York.
    Aug. 13, 1984.

      See also 594 F.Supp. 942.
    Frederick J. Scullin, Jr., U.S. Atty., Albany, N.Y., for the U.S.; John J. McCann, Asst. U.S. Atty., Syracuse, N.Y., Robyn C. Mitchell, Trial Attorney, U.S. Dept, of Justice, Washington, D.C., of counsel.
    Arkin & Arisohn, P.C., New York City, for defendant Buschel; Marc Bogatin, New York City, of counsel.
    Zwerling & Mark, P.C., Alexandria, Va., for defendant Hein; John Flowers Mark, Alexandria, Va., of counsel.
   MEMORANDUM-DECISION and ORDER

MINER, District Judge.

I

Defendant Sheldon Buschel, also known as Robert G. Solomon, was charged in a two-count indictment with unlawful possession with intent to distribute approximately 1,250 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count I) and conspiracy to possess with intent to distribute the same controlled substance, in violation of 21 U.S.C. § 846 (Count II). Before the Court is Buschel’s motion to suppress the marijuana described in the Indictment as well as other items seized by members of the New York State Police from the rented home he occupied at Napanoch, New York. Fed.R.Crim.P. 41(f). A hearing on the motion was conducted on May 30 and 31, 1984, and final submissions of counsel were received in chambers on June 20, 1984.

II

In late December, 1983, Buschel rented from Leonard Durell a colonial dwelling house located off Bennett Road in the Village of Napanoeh, Town of Wawarsing, Ulster County. The house is surrounded by approximately one hundred acres of mostly wooded land, and access to it is gained through a driveway approximately one-half mile in length. The oral lease was for a three-month term covering the period January — March 1984. Buschel paid to Mr. Durell the sum of $3,750.00, representing three months’ rent at $750.00 a month and a security deposit of $1,500.00 to cover heat, utilities and plowing, and took possession of the property on January 3, 1984. Buschel, who occupied the property under the name of Robert G. Solomon, made it clear that the house was not to be shown to anyone during his occupancy and Durell agreed to take the property off the market. The property had been listed for sale for approximately two years prior to that time by several real estate brokers in the area, and the lease was effected through the efforts of a broker known as “Metes and Bounds Realty.” Allen Chamberlain, owner of “Chamberlain Realty,” one of the brokers employed by Mr. Durell to effect a sale, was unaware of the lease and remained in possession of a set of keys to the house. On January 15, 1984, Chamberlain used the keys to enter the house through the basement doors for the purpose of showing the property to a prospective buyer. He was surprised to encounter Buschel at the premises, and apologized for the intrusion. Although Buschel allowed Chamberlain and the prospective purchaser to tour the house, with the exception of an upstairs bedroom, he accompanied them on their tour of the basement, where he discouraged them from examining a small workroom, saying that it contained garbage.

Immediately after the broker’s unexpected visit, Buschel complained to Durell, who expressed his regrets for the violation of privacy. Buschel conveyed his displeasure to Durell in no uncertain terms, and Durell offered to refund the rental payments. The refund was refused, but Buschel demanded that his permission be obtained in advance for any future visits. Durell asserted that he would do his best to see that such notice was given. Shortly thereafter, the prospective purchaser appeared again at the property for a further inspection, accompanied by Chamberlain and Durell. Buschel also was present, apparently having given previous permission for the entry. On that occasion, he instructed those present not to enter the workroom, because valuable items were kept there. Moreover, the door to the workroom was blocked by a stack of firewood three to three and one-half feet high.

At a later time, Durell entered the unlocked house after representatives of the Suburban Propane Gas Company had delivered fuel to the premises at Buschel’s request. Buschel had notified Durell that the fuel tank was empty, and Durell went to the house to see that the furnace pilot light was on after the fuel delivery. Both Durell and the Suburban Propane employee gained access through an unlocked garage door. While he was in the house, Durell noticed some rolls of plastic and a heat séaling device. On yet another occasion, Buschel permitted a building inspector to enter the house at the request of Durell and Chamberlain. Although Durell was allowed to enter the property at various times, Buschel always made it clear to him that no one was to enter the workroom, because it contained “valuables” and Durell acknowledged his understanding of that proscription.

In order to advance the sale of the property to the purchaser procured by Chamberlain, it became necessary for bank appraisers to inspect the house, apparently for mortgage loan purposes. The inspection was scheduled for February 15, 1984, and Chamberlain and Durell made several futile attempts to contact Buschel to secure his permission for the entry prior to that date. On the morning of February 15th, Durell told Chamberlain to enter the house with the appraisers without obtaining Buschel’s consent and expressed to Chamberlain the hope “that Solomon’s drugs were not all over the place.” Chamberlain, also suspecting the presence of narcotics at the house and fearing for his safety, contacted Investigator Snyder of the New York State Police and requested an escort for the appraisers and himself. He advised Snyder of his suspicions about narcotics at the premises and his fear of the defendant. Investigator Snyder passed the information to Senior Investigator Keiler, who directed Investigator Lang to call Chamberlain. Lang agreed to accompany Chamberlain to the property, but Durell never was advised of Chamberlain’s contacts with the state police. Chamberlain also informed the state police about his suspicions concerning the basement workroom and complained that Durell seemed more concerned about Buschel’s rights of privacy than with making a $95,000.00 sale.

Chamberlain and Lang drove to the property late in the morning on February 15th and met the appraisers there. Chamberlain opened the garage door with a key and all proceeded through the garage into the house. The appraisers departed following their inspection of the premises, but their examination did not include an inspection of the basement workshop. After they left, however, Chamberlain led Investigator Lang to the workshop and assisted him in removing the wood that blocked the room’s entrance door. Since the doorknob attachment was missing, it was necessary for Chamberlain to insert his pen in the mechanism to open the door. Lang then entered the workroom, turned on a light and was met with a strong odor of marijuana. To the right as he entered the room was a large sheet of black opaque plastic extending from the floor to the ceiling. On a shelf behind the sheet he found a large bale or bundle covered by the same type of black plastic. He pulled back the covering and found underneath it a wrapping of clear plastic, through which he observed marijuana. Lang immediately replaced the plastic, left the room, replaced the firewood and went upstairs to notify Senior Investigator Keiler by telephone of his discovery. He then returned to the state police barracks, where he prepared an application for a warrant to search the house. Two other state police officers were dispatched to secure the premises in the event of the return of Buschel to his home before the issuance and execution of the warrant. The search warrant was issued by the Wawarsing Town Justice on February 15, 1984, and fifty-eight bales of marijuana, the controlled substance subject of this Indictment, were seized from the house pursuant to the terms of the warrant on the same day. Based upon that seizure, another search warrant was obtained on February 20, 1984, and various records and packaging materials were seized from the house as the result of the execution of that warrant.

Ill

The Government contends that “Chamberlain possessed a sufficient relationship and access to the Durell house to authorize his [Chamberlain’s] consent to Investigator Lang’s entry and inspection of the house, more specifically, the workshop where the marihuana was housed.” Government’s Post-Hearing Brief in Opposition to Defendant Buschel’s Motion to Suppress at 8. Defendant Buschel, on the other hand, contends that the original warrantless search by Investigator Lang was unlawful, inasmuch as any consent to search given by Chamberlain was insufficient to justify Lang’s entry. Where the Government relies upon any consent to search by a third party, it must demonstrate that the consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the case of a claimed third party consent to search premises “[t]he well established rule in this Circuit is that ‘[c]onsent to a search by one with access to the area searched, and either common authority over it, a substantial interest in it or permission to exercise that access, express or implied, alone validates the search.’ ” United States v. Buettner-Janusch, 646 F.2d 759, 765 (2d Cir.) (quoting United States v. Gradowski, 502 F.2d 563, 564 (2d Cir.1974) (per curiam)), cert. denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981).

In this case there is no question that Chamberlain freely and voluntarily gave his consent to Lang to search Buschel’s house for narcotics and that he had access to the house by virtue of the keys given to him by Durell. It cannot be contended seriously, however, that Chamberlain had either common authority over the premises or any substantial interest in the property. He merely was a real estate broker engaged by Durell to sell the property, and he never received from Buschel, who was a tenant with the exclusive right to possession, express or implied permission to exercise any access. Although Buschel permitted him to remain at the property when he appeared there on several occasions, Chamberlain never was given permission to enter alone. The fact that Buschel had, on occasion, given others specific permission to enter the house in his absence did not serve to confer authority upon Chamberlain to exercise a right of access at any time of his own choosing. While he had Durell’s permission to go upon the property on February 15, 1984,.Chamberlain was fully aware that Buschel had not consented to his entry. His only authority on that day came from Durell, who was himself obligated to seek permission from Buschel before making any visit to the premises. Accordingly, Chamberlain had no right to consent on behalf of Buschel to a search by Investigator Lang.

The Government’s argument that the landlord-tenant relationship between Durell and Buschel somehow changed after a buyer for the property was found must be rejected. Buschel made it clear, after the buyer arrived on the scene, that his permission would be required for any visit inside the house. Although Durell said that he would try his best in that regard, Buschel agreed to no qualification of his rights as a tenant. The visits of Durell, Chamberlain, the gasman and the building inspector after the unexpected arrival of the prospective purchaser with Chamberlain, all were made with Buschel’s express consent. Moreover, Buschel at, all times demonstrated “objective, external evidence of an expectation of privacy,” United States v. Mannino, 635 F.2d 110, 114 (2d Cir.1980), in the workroom. By his words and actions, he sealed off the basement room where his cache of marijuana was stored. No greater expectation of privacy could have been shown, and even if Lang were authorized to enter the house, it is clear that the workroom was “off limits.” Under those circumstances, the search of the workroom without a warrant was improper. United States v. Dien, 609 F.2d 1038, 1046-47 (2d Cir.1979), aff’d on rehearing, 615 F.2d 10 (2d Cir.1980).

The Government’s belated citation of Nix v. Williams, — U.S. —, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) hardly bears mention. In that case it was held that “[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.” Id. at —, 104 S.Ct. at 2509-10 (footnote omitted). There was nothing inevitable about Investigator Lang’s discovery of the marijuana in the workroom, and there was no evidence that the noxious substance ever would have been discovered in the absence of Lang’s unlawful entry. Also rejected is the Government’s claim that Investigator Lang’s original search was justified by exigent circumstances requiring him to enter the premises to protect Chamberlain. In Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), cited by the Government, the Supreme Court rejected the “murder scene exception” created by the Arizona Supreme Court as violative of the fourth and fourteenth amendments, although the Court did recognize the necessity for warrantless entries and searches by police to aid a person in need of emergency assistance or to promptly investigate a murder scene to locate other victims or a killer. As in Mincey, however, “it simply cannot be contended that [Lang’s] search was justified by any emergency threatening life or limb.” Id. at 393, 98 S.Ct. at 2413. No threats of any kind had been made against Chamberlain, and it seems apparent that Investigator Lang accompanied him only for the purpose of searching for the controlled substance he ultimately found.

IV

In light of the foregoing.the defendant’s motion is granted in its entirety and all items seized pursuant to the search warrants obtained after the original unlawful search are suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is so Ordered.

      . The hearing was combined with a hearing held in connection with the challenge of co-defendant Mark T. Hein to the legality of his arrest. A separate Memorandum-Decision and Order relative to the Hein motion will be issued at a later date. The witnesses at the joint hearing whose testimony was germane to the motion at bar were as follows: Leonard Durell, landlord of the property occupied by movant; George R. Rider, gas delivery man employed by Suburban Propane Gas Co.; John M. Lang, investigator, New York State Police; and Allen Chamberlain, real estate broker. Various exhibits were received in evidence at the hearing.

      . The application for the search warrant included the following information furnished by Investigator Lang:
      That on February 15, 1984 at approximately 1:15 PM I personally observed the property mentioned in section * *B of this application. That based on my experience I have reason to believe that the property observed is unlawfully possessed pursuant to the aformentioned [sic] Atricles [sic] of law; and further that I have reason to believe based on my experience that written and/or recorded records may be found concerning the possession, sale, acquisition, and/or inventory of said property. More specifically the property sought to be seized are bails [sic] of marijuana observed in the basement area of the location described in section * *C of this application. These observations were made while your deponent was in the company of ALLEN CHAMBERLAIN, who had requested your deponent accompany him to said location.

      . The warrant authorized the seizure of the following items: "The controlled substance marijuana, unlawfully possessed pursuant to Articles 220 and 221 of the Penal Law and Article 33 of the Public Health Law; and any written or recorded records evidencing the possession or sale of the aforementioned controlled substance."

      . The following items were included in the inventory of property seized pursuant to the warrant:
      1. 1 glass bottle with 15 green pills
      2. 1 plastic bag with 9 green pills
      3. 1 plastic bag with 6 large white capsules
      4. 1 plastic bag with 13 small white capsules
      5. 2 plastic bags with 13 yellow capsules
      6. 1 brown vial
      7. 1 glasine [sic] bag
      8. 1 single edge razor blade
      9. 1 clear glass sniffer

        10. 2 blue plastic sniffers
      11. 1 roll of gray cloth tape
      12. 1 box bounce fabric sofner [sic] sheets
      13. 58 bales of marihuana

      . The second warrant authorized the seizure of the following items: "Records of Marihuana shipments, sales, locations of other stash houses, records of customers, papaphernalia [sic] used to wrap, ship and store marihuana scales and records to telephone calls from this residence.”

      . The following items were listed in the inventory as seized pursuant to the second warrant:
      1 — Roll gray duck Tape
      1 — Bx [sic] gray garbage Bags
      9 — Bags of samples of various records seized from (9) bags of garbage (1) in kitchen (8) from rear porch off kitchen outside.
      7 — empty bags which contained Nylon utility bags
      1 — empty box which contained Bounce


text:
    UNITED STATES of America v. Sheldon BUSCHEL, a/k/a Robert G. Solomon and Mark T. Hein.
    No. 84-CR-26.
    United States District Court, N.D. New York.
    Aug. 24, 1984.

      Frederick J. Scullin, Jr., U.S. Atty., N.D. N.Y., Albany, N.Y., for the U.S.; John J. McCann, Asst. U.S. Atty., Syracuse, N.Y., Robyn C. Mitchell, Trial Atty., U.S. Dept, of Justice, Washington, D.C., of counsel.
    Arkin & Arisohn, P.C., New York City, for defendant Buschel; Mare Bogatin, New York City, of counsel.
    Zwerling & Mark, P.C., Alexandria, Va., for defendant Hein; John Flowers Mark, Alexandria, Va., of counsel.
   MEMORANDUM-DECISION and ORDER

MINER, District Judge.

I

On February 29,1984, a two-count indict ment was filed charging defendant Sheldon Buschel with unlawful possession with intent to distribute approximately 1,250 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1) (count I) and charging defendants Sheldon Buschel and Mark Hein with a conspiracy to possess with intent to distribute that marijuana in violation of 21 U.S.C. § 846 (count II). Presently before the Court is defendant Hein’s motion to suppress all evidence seized from him following his allegedly unlawful arrest. Fed. R.Crim.P. 41(f). The challenged arrest was made without a warrant and assertedly without probable cause. A hearing on the motion was conducted on May 30 and 31, 1984. Final submissions of counsel were received in chambers on August 9, 1984.

II

On February 15, 1984, approximately 1,250 pounds of marijuana were seized from a home owned by Leonard Durell. At the time, the home was rented and occupied by defendant Sheldon Buschel. Allegedly, when Buschel .discovered the marijuana was missing, he called Durell and accused him of its theft. Fearing for his safety, Durell subsequently requested protection from the New York State Police. On February 19, 1984, New York State Police Investigator Gregory Harlin and others were assigned to protect Durell. According to .Harlin, Durell appeared nervous and frightened and told Harlin of conversations he had had with Buschel in which Buschel had stated that he was not the only one involved in the case and that he would not “take the fall” alone.

On February 20, 1984, Investigator Harlin returned a telephone call he had received from Durell. Durell told Harlin that he (Durell) was to meet Buschel at the intersection of Front and Church Streets in New Paltz, New York. Harlin testified that Durell stated that “they” (Buschel and another) were going to meet him (Durell) there. Harlin then arranged to meet with Durell in New Paltz prior to Durell’s meeting with Buschel, and notified New York State Police Investigator Daniel Reidy of the impending meeting. Harlin met Durell at a parking area on lower Main Street in New Paltz at approximately 7:00 P.M. on the 20th. He advised Durell that he would follow him to the Front and Church Street location where the meeting with Buschel was to occur.

A. Investigator Harlin’s testimony

Harlin testified that after his meeting with Durell he turned his vehicle off Main Street and proceeded to the intersection of Front and Church Streets. Before arriving there, he observed defendant Hein standing by a restaurant. He then observed Hein walk to. the corner and then towards the Durell car in which a passenger, who later proved to be Buschel, was now seated. After Harlin exited his car on Front Street, Hein looked at him, turned around, and then walked back toward the restaurant. Harlin approached the Durell car and observed Buschel sitting in the front passenger seat. He also observed Hein walking up Front Street, looking back and talking into his coat. Harlin opened the door of the Durell car and arrested Buschel. By this time, Investigator Reidy had arrived and a search of Buschel uncovered a small tape recorder with a microphone attached to his sleeve and a quantity of marijuana. Harlin and Reidy then proceeded in their car up Front Street in search of another person whom they believed to be involved. When they came upon Hein, Harlin exited the car and placed Hein under arrest. Reidy assisted in the arrest and subsequent search which revealed a walkie-talkie, a beeper and a small notebook. No drugs were found on Hein’s person.

B. Investigator Reidy’s.testimony

Reidy testified that after receiving a call from Harlin he drove to New Paltz. Along the way, he passed Durell’s house looking for Durell’s yellow Pinto or- Escort type car. While in New Paltz, Reidy spotted the car parked on a corner and saw “two gentlemen,” whom he later identified as Buschel and Hein. According to Reidy, the two appeared to be talking on the street corner, although he could see no lip movement. Reidy saw Hein walk away and observed Buschel. enter Durell’s car. Within a minute, he observed Harlin place Buschel under arrest. He then observed Hein walking up the street, apparently talking to no one and looking back over his shoulder. Reidy then assisted in the arrest and search of Buschel. Harlin then told Reidy he thought there were “two of them.” Reidy agreed and said he had seen one. Reidy and Harlin then drove up Front Street and turned onto Main Street where they saw Hein in a recessed doorway. They drove around the block once and when they returned saw that Hein had moved and was now heading in the opposite direction on Main Street. The officers approached Hein and immediately placed him under arrest. .

Ill

In addition to questioning the complete truthfulness of the above account as set forth by Investigators Harlin and Reidy, defendant points to a number of factors assertedly supportive of his position that his arrest was without probable cause. First, defendant contends that there were no investigative inquiries made nor any opportunity given him to explain his presence, demeanor or any other suspicions the officers may have had prior to his arrest. Moreover, defendant suggests that there is no evidence that these officers feared for their own safety prior to his arrest. Finally, defendant notes that prior to the evening of his arrest he was not known to any law enforcement officers, he had never been seen by any law enforcement officers, and no officer had any information from any source that he was in any way associated with defendant Buschel.

Regarding the hearing testimony, defendant strenuously urges that no evidence has been adduced which would indicate that the officers had probable cause to effect his arrest. First, defendant points to the testimony of Investigator Harlin to the effect that prior to his arrest of Buschel, he had never seen Hein and Buschel together and had no information that Hein was in any way involved in-the drug conspiracy. Second, defendant indicates what are alleged to be substantial contradictions and inconsistencies in the testimony of Investigator Reidy.

The Government’s position with respect to probable cause in this case is simple. Indeed, the meager effort made by the Government to support its theory of the validity of the arrest bespeaks an overly sanguine projection of the disposition of the instant motion. In short, the Government is content to rely simply upon the experience of the arresting officers, their suspicions that a confederate of Buschel would be in the area, and the somewhat suspicious behavior of Hein in the Town of New Paltz on the evening of the arrest.

After careful review of the hearing testimony and the arguments of counsel, the Court is persuaded that there was an insufficient basis for the arresting officers’ determination of probable cause and the fruits of the arrest must therefore be suppressed.

IV

Both the starting and ending point for purposes of the present motion is found in the well settled proposition that warrantless arrests are unlawful unless made upon probable cause. Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963). Probable cause, of course, “must be determined with reference to the facts of each case ____” United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983). In general, “probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and .circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being comitted (2) by the person to be arrested.” Id.; see also United States v. Torres, 740 F.2d 122, 126 (2d Cir.1984). “The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, ... but it must constitute more than rumor, suspicion, or even a ‘strong reason to suspect.’ ” United States v. Fisher, 702 F.2d at 375 (quoting Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959)).

The Government has posited four factors, evaluation of which, in the context of the present case, is claimed to support a finding of probable cause. These factors include: (1) the experience and training of the police officers, see United States v. Price, 599 F.2d 494, 501 (2d Cir.1979); (2) elusive meanderings while appearing to be waiting for someone, especially where the experienced officers have observed this pattern of behavior before, see United States v. Vasquez, 634 F.2d 41, 43 (2d Cir.1980); (3) the appearance of checking for surveillance, see United States v. Fisher, 702 F.2d 373, 378 (2d Cir.1983); and (4) movements that are designed to avoid encounter with a police officer, see id. While all those factors have some relevance to the subject arrest, it is important to note that the cases cited by the Government employing these factors all involved only investigative stops, not warrantless arrests. It hardly need be stated that the standards governing the propriety of each are significantly different. See, e.g., United States v. Vasquez, 638 F.2d 507, 520 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981). While the totality of factors urged by the Government may have established a legitimate basis for an investigatory stop, that is, a reasonably articulable suspicion that Hein was or was about to be engaged in criminal activity, see United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); United States v. Nargi, 732 F.2d 1102, 1105 (2d Cir.1984); it is clear that those same factors do not support a finding of probable cause to arrest.

The weakness of the Government’s position is exemplified in its own statement that “there was sufficient probable cause to believe that [Hein] was performing a counter-surveillance of the Buschel and Durell meeting and was therefore a member of the conspiracy to possess, with intent to distribute, the 1250 pounds of marihuana seized from the Durell house.” Government’s Post-Hearing Brief in Opposition to Defendant Hein’s Motion to Suppress at 9. The Court simply is unable to fathom how probable cause to believe that a defendant was engaged in “counter-surveillance,” even when coupled with the other factors presented here, may lead to the objective conclusion that a defendant has engaged in or is engaging in criminal conduct. The hearing testimony establishes that at the very most, Hein’s behavior was somewhat suspicious. Probable cause, however, must consist of “more than rumor, suspicion, or even a ‘strong reason to suspect.’ ” United States v. Fisher, 702 F.2d at 375 (quoting Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959)).

The Court is satisfied that these officers acted without probable cause in effecting Hein’s arrest. First, although there is a substantial dispute as to whether Investigator Reidy actually saw Hein standing with Buschel immediately preceeding the arrest, the Court concludes that even assuming the truth of Reidy’s observations, the defendants’ presence together was insufficient to establish probable cause. The facts here are remarkably similar to those held in Sibron v. New York, 392 U.S. 40, 88 5. Ct. 1889, 20 L.Ed.2d 917 (1968), not to support a finding of probable cause. The Sibron Court noted:

The prosecution has quite properly abandoned the notion that there was probable cause to arrest Sibron for any crime at the time Patrolman Martin accosted him in the restaurant, took him outside and searched him. The officer was not acquainted with Sibron and had no information concerning him. He merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours. It must be emphasized that Patrolman Martin was completely ignorant regarding the content of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed “have been talking about the World Series.” The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort "of reasonable inference required to support an intrusion by the police upon an individual’s personal security. Nothing resembling probable cause existed until after the search had turned up the envelopes of heroin.

392 U.S. at 62-63, 88 S.Ct. at 1902. Here too, the mere presence of Hein in the area of Buschel’s arrest simply is an insufficient basis upon which to ground a determination of probable cause. Even assuming the officers knew that a confederate of Buschel’s would be in the area, there was no information or facts from which they, reasonably could infer that Hein was that person. As in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), “none of the circumstances preceding the officers’ [arrest] of [defendant] justified a reasonable suspicion that he was involved in criminal conduct.” Id. at 51-52, 88 S.Ct. at 1896-97.

The additional factors relied upon by the Government and claimed to bolster the officers’ probable cause determination likewise are rejected. First, although the Government now characterizes defendant’s “suspicious” behavior as having been in the nature of “counter-surveillance,” see United States v. Vasquez, 638 F.2d 507, 513 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981), there was no testimony by the officers that this was in fact how they perceived defendant’s actions. Indeed, their testimony indicated at most their observation of somewhat suspicious behavior on the part of Hein. While the “experience of a police officer is a factor to be considered in the determination of probable cause ..., the relevance of the suspect’s conduct should be sufficiently articulable that its import can be understood by the average reasonably prudent person.” United States v. Fisher, 702 F.2d 372, 378 (2d Cir.1983) (citations omitted). The mere fact that Hein observed the arrest of Buschel with apparent interest, or perhaps only curiosity, and then walked both toward and away from the scene, hardly can impel the conclusion that he was engaged in “counter-surveillance.” “From all that appears in the record, [Hein’s] conduct was entirely ambiguous, and ambiguous conduct does not provide probable cause for arrest.” Id. (citation omitted).

Similarly, there is no basis in the record upon which to conclude that Hein was attempting to flee the scene, or, in the Government’s words, “moving so as to avoid an encounter with the police.” The testimony of both Reidy and Harlin was only to the effect that after apparently observing the arrest of Buschel, Hein simply turned around and walked the other way. There is hardly any indication of “flight” to be found in such behavior, particularly since there is no evidence that Hein knew that Reidy and Harlin were police officers. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court reiterated the general rule that when a police officer insufficiently or unclearly identifies his office or his mission, a suspect’s flight “must be regarded as ambiguous conduct.” 371 U.S. at 482, 83 S.Ct. at 414; see also Miller v. United States, 357 U.S. 301, 310-12, 78 S.Ct. 1190, 1196-97, 2 L.Ed.2d 1332 (1958). In holding that such conduct was insufficient to support a finding of probable cause, the Court placed considerable reliance on its well established refusal to accord probative value in criminal trials to evidence of an accused’s alleged flight, 371 U.S. at 483 n. 10, 83 S.Ct. at 415 n. 10, and quoted from its decision in Alberty v. United States, 162 U.S. 499, 16 S.Ct. 864, 40 L.Ed. 1051 (1896):

[I]t is not universally true that a man, who is conscious that he has done wrong, ‘will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right, and proper;’ since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth; but the righteous are as bold as a lion.’

162 U.S. at 511, 16 S.Ct. at 868. Because Hein’s avoidance of the officers provides no basis upon which an inference of guilt may be grounded, that fact could not supply the necessary probable cause for his arrest.

V

On balance, the Court finds inescapable the conclusion that officers Reidy and Harlin acted without probable cause in effecting the warrantless arrest of defendant Hein. While it is a closer question whether there may have been sufficient articulable suspicion warranting an investigatory stop, it is clear that that is a course of action these officers elected not to pursue. Having opted to arrest rather than simply question Hein, their actions can only be justified upon a finding of probable cause. Because probable cause was lacking, the arrest itself was unlawful and the fruits derived therefrom must be suppressed.

It is so Ordered.

      . The hearing was combined with a hearing held in connection with co-defendant Sheldon Buschel’s motion to suppress the fruits of an allegedly illegal search. In a decision filed on August 13, 1984, the Court granted Buschel’s motion to suppress. United States v. Buschel, 594 F.Supp. 937 (N.D.N.Y.1984). At the joint hearing, the following witnesses testified with respect to the instant motion: Gregory J. Harlin, Narcotics Unit Investigator with the New York State Police; Daniel J. Reidy, Senior Narcotics Investigator with the New York State Police; and defendant Mark T. Hein. By stipulation of the parties, the testimony of Leonard Durell, received relative to the Buschel motion, was incorporated into the record here.

      . The details of the search and seizure are set forth in this Court’s earlier decision granting defendant Buschel’s motion to suppress, United States v. Buschel, 594 F.Supp. 937 (N.D.N.Y.1984).

      . Defendant urges the Court to accord little weight to the testimony of officers Reidy and Harlin since neither made any contemporaneous notes or records of the surveillance and arrest and therefore testified only from memory some three months later.

      .- Defendant argues that the "groundless ‘assumption’ or ‘hunch’ by Investigator Harlin that someone was involved with Buschel and that this unknown individual would be in the immediate area of the meeting between Buschel and Durell is entitled to little consideration.” Post-Hearing Memorandum on Behalf of Defendant Mark T. Hein at 4 n. 1. Defendant is certainly correct in noting that Harlin’s testimony was to the effect that his assumption was based on his experience that drug dealers generally have associates in the area of a drug distribution to protect both themselves and their product. Defendant is also correct in pointing out that Officers Harlin and Reidy were not anticipating any drug distribution on the evening in question but rather were there simply to afford protection to Durell at what was feared to be a hostile meeting between a- suspected drug dealer and the man he apparently believed had stolen his drugs. Of course, as events later turned out, the officers also hoped to arrest that drug dealer. There was no indication, however, that the presence of Buschel was to occur in the context of a drug transaction fitting the pattern described by the officers, that is, one where their experience would suggest that confederates would be in the area. Nonetheless, defendant has ignored Investigator Harlin’s testimony that when Durell told him of the anticipated meeting in New Paltz, he specifically referred to the fact that "they were going to meet [him] at the intersection of Front and Church.” Transcript at 9. The officers therefore had at least some basis upon which to reasonably believe that another suspect would be in the area. As the discussion below makes evident, however, that suspicion was insufficient to support a determination of probable cause.

      . There can be no question here that the officers’ actions far exceeded the bounds of a simple investigatory stop and rose to the level of an arrest. Although there is no “litmus-paper test ... for determining when a seizure exceeds the bounds of an investigative stop,” Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983), in general, “the intrusion must be no greater.than the circumstances require.” United States v. Vasquez, 638 F.2d 507, 520 (2d Cir.1980); cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981); United States v. Nargi, 732 F.2d 1102, 1106 (2d Cir.1984). “In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.” Florida v. Royer, 103 S.Ct. at 1325. While the “scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case ..., an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id. The Government has failed to meet its burden of demonstrating that the seizure here was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. See id. First, the record makes clear that officers Harlin and Reidy never intended to simply question Hein, but rather to immediately arrest him. As the two first approached defendant, Reidy directed Harlin to "take him.” Hein was ordered immediately to place his hands against a wall prior to any questions being asked of him. Hein was arrested and then searched. At no time were investigative inquiries made. Nor was Hein given an opportunity to explain his presence, or what appeared to the officers to be his suspicious demeanor. Moreover, prior to the arrest, the officers had no reason to believe they were to fear for their own or others’ safety.

      . Investigator Reidy testified that when he arrived in New Paltz, he observed Buschel and Hein standing together on a street corner, appearing to be engaged in a conversation. Defendant Hein categorically denied ever having been with Buschel on the corner in question. Investigator Harlin never testified that he had seen the two defendants together. Durell testified that he never saw Buschel and Hein together that evening. All of the testimony, however, is not necessarily contradictory. Although it is not at all clear, it certainly is possible that Reidy alone was in a position where he was able to observe the alleged meeting. Of course, Hein flatly denies the substance of Reidy’s testimony. The inconsistencies and contradictions alleged by defendant to undercut Reidy’s testimony simply are exaggerated. First, it is of no particular significance that Reidy’s hearing testimony is somewhat at variance from his statement in support of the criminal complaint. Second, defendant’s reliance on Reidy’s statement that he was unable to physically view Hein at all is taken out of context. According to Reidy, it was not until after he observed the alleged meeting and after Buschel came down the street that. Hein was out of his sight.

      . It must be noted again that the counter-surveillance present in Vasquez was only deemed sufficient to justify an investigative stop and not a more intrusive warrantless arrest.

      . The weakness of the Government’s contention to the contrary is reinforced by the fact, as testified to by Investigator Reidy, that from the time he saw Buschel and Hein together until the time when Buschel was arrested, only a matter of minutes had elapsed. The officers could hardly discern the presence of counter-surveillance in so short a period of time.

      . The present case is readily distinguishable from United States v. Vasquez, 638 F.2d 507 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981), relied upon by the Government. First, in finding that police officers had probable cause to arrest defendant there, the court noted that one of the arresting officers recognized him as a suspected major narcotics dealer he had previously arrested for cocaine dealing. Certainly, that situation is vastly different from the present one. More importantly, with respect to flight, the court was able to find a reasonable basis for probable cause in the fact that only after the officer called out and ordered the defendant to stop did he then begin to walk "swiftly away from him.” 638 F.2d at 530 n. 15. Here, there was no clear indication that these officers were approaching Hein. His walking away would therefore not necessarily suggest an attempt to avoid a police encounter.

      . Investigator Reidy also testified that while Hein was walking he was looking back over his shoulder.


author: JOHN T. NIXON, District Judge.

text:
    William GROSECLOSE, et al. ex rel. Ronald HARRIES, Petitioners, v. Michael DUTTON, Warden, et al. Ronald HARRIES, Plaintiff, v. Michael DUTTON, Warden, et al.
    No. 3-84-0579.
    United States District Court, M.D. Tennessee, Nashville Division.
    Aug. 17, 1984.

      Larry D. Woods, Jinx Woods, William Marett, Woods, Bryan Woods & Watson, Nashville, Tenn., for William Groseclose et al.
    Richard McGee and William Redick, Nashville, Tenn., for Ronald Harries.
    Hal D. Hardin, Nashville, Tenn., for Harries as guardian ad litem.
    William Leech, Atty. Gen., Wayne E. Uhl and Robert Grunow, Asst. State Attys. Gen., Nashville, Tenn., for Michael Dutton et al.
   MEMORANDUM AND ORDER

JOHN T. NIXON, District Judge.

Pursuant to the Court’s Memorandum and Order issued on June 8, 1984, Groseclose ex rel. Ronald Harries v. Michael Dutton, et al., 589 F.Supp. 362, (M.D.Tenn.1984), an evidentiary hearing was held on July 12 and 13, 1984 to determine whether this Court has jurisdiction to entertain the petitioners’ third-party next friend habeas corpus petition submitted under 28 U.S.C. § 2242. The petitioners on June 6, 1984 sought habeas corpus relief for Ronald Harries due to his decision to waive post-conviction remedies in state and federal courts challenging his conviction of murder and sentence of death by electrocution, 657 S.W.2d 414, then scheduled for June' 13, 1984 by Order of the Supreme Court of the State of Tennessee. The respondents sought dismissal of the third-party habeas petition arguing that the petitioners lacked standing to act on behalf of Mr. Harries. Because of the petitioners’ allegations and documentary evidence showing that the respondents’ administration of drugs to Mr. Harries hampered his ability to appreciate the gravity of his decision to waive judicial relief, this Court concluded that an evidentiary hearing was necessary on the standing of petitioners to invoke this Court’s jurisdiction. Accordingly, the Court stayed the execution of Ronald Harries.

Since this Court’s decision to stay indefinitely the execution of Mr. Harries pending an evidentiary hearing, all parties have engaged in reasonable, unlimited and expedited discovery. 4 J. Moore, Federal Practice and Procedure 26-190 (1983) (district court commits reversible error if it denies plaintiff an opportunity for discovery on jurisdiction in a complicated case). In addition, the passage of time has brought about a clarification of Mr. Harries’ position in this ease. Although he originally opposed and sought dismissal of the third-party habeas petition, Mr. Harries now contends that while he intelligently decided to waive further judicial review, his decision was not voluntary because of the unconstitutional conditions of confinement to which he is being subjected while in the respondents’ custody. By Order issued July 6,1984, this Court permitted Ronald Harries to proceed in this case as a party plaintiff asserting the issue of his lack of voluntariness in waiving post-conviction remedies due to allegedly inhumane prison conditions. The respondents timely moved the Court to reconsider that ruling. That motion and the respondents’ motion to strike the sworn statement of Mr. Harries are DENIED for the reasons set forth in this Memorandum.

On July 12 and 13, 1984, the Court heard evidence from all parties on the issue of Mr. Harries’ competency, including the lack of voluntariness in his decision to waive further judicial relief. While the evidentiary hearing on July 12 and 13, 1984 was in no way a full evidentiary presentation of the conditions existing on death row at the Tennessee State Penitentiary in Nashville, this Court permitted evidence on conditions to be admitted for the purpose of considering the issue presented by Mr. Harries. That issue and the competency question are the basis of the petitioners’ argument that they have standing and that this Court has jurisdiction over the next friends’ habeas petition.

In determining the standing of the petitioners to seek habeas relief for Mr. Harries, this Court applies the standard enunciated by the Fifth Circuit in Weber v. Garza, 570 F.2d 511 (5th Cir.1978), and the Sixth Circuit in Johnson v. Avery, 382 F.2d 353 (6th Cir.1967), rev’d on other grounds, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Those cases establish three requirements that a third-party must satisfy to acquire next friend habeas status under 28 U.S.C. § 2242. First, the third-party applicant must show why the detained person did not sign and verify the petition and the relationship of the third-party applicant to the detained person. Second, the third-party applicant must not be using the next friend vehicle to engage in the unauthorized practice of law. Third, the third-party applicant under 28 U.S.C. § 2242 must “set forth an adequate reason or explanation of the necessity for resort to the ‘next friend’ device,” otherwise the Court lacks jurisdiction to review the petition. Weber, 570 F.2d at 513-14. Accord Johnson, 382 F.2d at 357 (next friend petition appropriate when inmate suffers from physical or mental handicaps). There is no question that the petitioners are not using the next friend device to engage in the unauthorized practice of law. Thus, the inquiry in this case is whether there is an adequate explanation for Harries’ failure to join in the habeas corpus petition.

The burden of establishing that this Court has jurisdiction is on the petitioners. Weller v. Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir.1974). Given that an evidentiary hearing has been held on the jurisdictional issue, the petitioners must show that jurisdiction exists by a preponderance of the evidence. Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981). Accord Armbruster v. Quinn, 711 F.2d 1332, 1335 (6th Cir.1983); Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977). The petitioners assert two separate theories on the jurisdictional/standing issue. They maintain initially that a third-party habeas corpus petition on behalf of Mr. Harries is warranted because Mr. Harries is mentally incompetent to make the decision to waive post-conviction remedies, which would result in his execution. Additionally, the petitioners join in Mr. Harries’ argument that his decision to waive post-conviction remedies was involuntary be: cause of adverse, if not unconstitutional, conditions of confinement. Thus, the petitioners seek to establish jurisdiction, by a preponderance of the evidence, over the next friend petition because Ronald Harries suffers from a mental disease and because the conditions of his confinement make his waiver of post-conviction remedies involuntary.

Before addressing the merits of these two arguments, this Court recognizes the gravity of the decision presented to Ronald Harries. Because he has not utilized available state and federal post-conviction remedies that would, if triggered, have the concommitant effect of staying his execution for six to ten years, he is allowing the State of Tennessee to execute him without his sentence of death receiving complete state and federal judicial review. Although there is no federal requirement that state criminal convictions undergo post-conviction judicial scrutiny, the right to seek post-conviction relief is one of the greatest constitutional privileges guaranteed to the American citizenry. Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973). As has been repeatedly emphasized by the Supreme Court, habeas corpus actions are important in the constitutional scheme because they directly protect due process rights, which are highly valued. Bounds v. Smith, 430 U.S. 817, 827, 97 S.Ct. 1491, 1497, 52 L.Ed.2d 72 (1977) (relying on Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969) and Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974)). The due process protections embodied within the habeas corpus vehicle envision that “in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law ... [then the imprisoned man is entitled to relief].” Fay v. Noia, 372 U.S. 391, 402, 83 S.Ct. 822, 829, 9 L.Ed.2d 837 (1963). If Mr. Harries incompetently or involuntarily decided to waive state and federal post-conviction remedies, then it would be a violation of due process for the respondents to execute him. If, on the other hand, Mr. Harries’ decision to waive post-conviction remedies was made competently and voluntarily, then it behooves society to accept that decision. As explained by Justice Rehnquist in his in chambers opinion in the case of Lenhard v. Wolff, 443 U.S. 1306, 100 S.Ct. 3, 61 L.Ed.2d 885 (1979):

The idea that the deliberate decision of one under sentence of death to abandon possible additional legal avenues of attack on that sentence cannot be a rational decision, regardless of its motive, suggests that the preservation of one’s own life at whatever cost is the summon bonum, a proposition with respect to which the greatest philosophers and theologians have not agreed and with respect to which the United States Constitution by its terms does not speak.

Id. at 1312-13, 100 S.Ct. at 7. Thus, while Mr. Harries’ waiver decision directly affects whether he will live or die, the very nature of that decision does not preclude it from being one that may favor death over life.

Any decision to waive federally guaranteed rights requires that the court be convinced that the waiver decision is made intelligently and intentionally. Johnson v. Zerbst, 304 U.S. 458, 467-68, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (1938). No less is required when the consequences of the waiver decision may result in the execution of the criminal defendant. Given that waivers of constitutional rights are not favored, this Court must be cautious in finding that a criminal defendant has waived constitutionally guaranteed rights. Indeed, this Court is obligated to indulge in every reasonable presumption against waiver of fundamental rights such as due process protections. Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. See also Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 464-465, 86 L.Ed. 680 (1942). Even though not favored, however, a valid waiver may be accomplished if the evidence shows that the criminal defendant understood the nature of the constitutional rights waived and knowingly assented to their waiver. Phillips v. Neil, 452 F.2d 337, 349 (6th Cir.1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972).

I.

In determining whether Mr. Harries competently waived his post-conviction remedies, this Court must make a sensitive inquiry into whether he appreciates the legal alternatives available to him or whether he is suffering from some mental disease. As articulated by the Supreme Court in Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), this Court must determine whether Mr. Harries has the

capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand, whether he is suffering from a mental disease, disorder or defect which may substantially affect his capacity in the premises.

Id. at 314, 86 S.Ct. at 1506. The parties agree that the Rees standard properly applies in this case to determine the competency of Mr. Harries.

The burden of proving, by a preponderance of the evidence, that Mr. Harries is incompetent is on the petitioners seeking to act on his behalf. Evans v. Bennett, 440 U.S. 1301, 1304, 99 S.Ct. 1481, 1483, 59 L.Ed.2d 756 (1979); Gilmore v. Utah, 429 U.S. 1012, 1014, 97 S.Ct. 436, 437, 50 L.Ed.2d 632 (1976); Lenhard v. Wolff, 603 F.2d 91, 93 (9th Cir.), aff’d, 444 U.S. 807, 100 S.Ct. 29, 62 L.Ed.2d 20 (1979); Weber v. Garza, 570 F.2d 511, 513-14 (5th Cir.1978). Under the Rees standard, the petitioners must present the medical opinion of qualified experts based upon “sufficient opportunity for proper psychiatric and psychological evaluation.” Hays v. Murphy, 663 F.2d 1004, 1011 (10th Cir.1981). In assessing the medical opinions presented, the brevity of the medical evaluations, the substance of the questions asked Mr. Harries, the atmosphere in which the evaluations took place and whether any psychological tests were given by the experts are but an example of some of the relevant factors to be considered by the Court. Hays, 663 F.2d at 1012-13 and n. 12.

In this case, the Court was presented with five medical experts who evaluated and made conclusions on whether Ronald Harries was competent. Doctors Otto Billig, Harold Jordan and Dorothy Lewis testified that Mr. Harries was not competent to make the decision to waive post-conviction remedies. Doctors Robert Begtrup and William Kenner concluded that Mr. Harries is competent to make decisions for himself, including that of waiving further judicial review of his conviction and sentence.

The cornerstone of the petitioners’ proof that Mr. Harries is incompetent was the testimony of Dr. Dorothy Lewis, a Professor of Psychiatry at New York University, Bellevue Medical Center and a clinical Professor of Psychiatry at Yale University Child Study Center. She is board certified in psychiatry and significantly published in that field. Moreover, Dr. Lewis has performed competency evaluations on death-row inmates in other states. After a six-hour evaluation of Ronald Harries on Wednesday, July 11, 1984, Dr. Lewis concluded that Mr. Harries suffers from bipolar mood disorder, which is commonly known as manic depressive illness. It is a psychotic disturbance characterized by mood changes from extreme euphoria to extreme depression, which may last from a day to weeks or months- at a time. When experiencing one of the extreme mood periods, the patient is out of touch with reality, but in between the extreme mood periods, the patient is intact and capable of coping with reality. Dr. Lewis further concluded that when Ronald Harries decided to waive his post-conviction remedies, he had no understanding that he might be executed. Thus, his decision was not based on reality. This viewpoint was confirmed by Mr. Harries when he testified and publicly expressed his thanks to petitioners’ counsel for saving his life. According to Dr. Lewis, Ronald Harries entered a depressive stage about eighteen months ago when certain prison activities were curtailed. Harries became extremely depressed, withdrew to his cell, stayed in bed all day and lost about thirty pounds. During the onslaught of this depression a feeling of hopelessness overcame him. Previously, Mr. Harries experienced a manic phase, during which he was extraordinarily high as characterized by his writing fifteen letters per night of about fifteen pages each in length. He was also very talkative. The depressive stage has been going on for the past eighteen months, and while he may have short periods of being in touch with reality, Dr. Lewis carefully explained that Harries is not competent because he cannot sustain a mood long enough to be certain that decisions rendered today will be in accordance with his wishes tomorrow. Moreover, this psychotic disorder does not prevent Mr. Harries from presenting an impressive front showing intelligence, coherence and articulation, but this breaks down the more one talks to him.

The second major conclusion of Dr. Lewis was that Ronald Harries suffers from some central nervous system impairment, which may be- a precipitant to the bipolar mood disorder. Dr. Lewis made this finding based on several mental and psychological tests she performed on Harries during her evaluation and because his medical history, which shows some indication of seizures. While Dr. Lewis did not find that the central nervous system impairment in and of itself was important in Harries’ decision to waive post-conviction remedies, she concluded that in combination with Harries’ bipolar mood disorder, the central nervous system problem had an adverse effect on Mr. Harries’ ability to reason.

The Court was further impressed by the overall confirmation of Dr. Lewis’ conclusion with past incidents involving Harries. For example, Dr. Lewis found that when Harries was given the drug Sinequan, a manic phase was precipitated and he became very violent and angry. This reaction explains, at least in part, Harries’ guard hostage episode because the evidence shows he had received Sinequan before that incident. Another confirmation of Dr. Lewis’ conclusion of bipolar mood disorder is the history of first degree relatives of Harries with an apparent bipolar disorder. Conversation with Harries indicates abnormal behavior by his father and grandfather. Thus, Dr. Lewis believes that Harries’ bipolar mood disorder has some hereditary origins.

The Court finds Dr. Lewis’ diagnosis credible and based upon sufficient opportunity for proper psychiatric and psychological evaluation. Dr. Lewis’ evaluation lasted longer than any other expert, and she covered more substantive areas of Mr. Harries’ mental health than any other expert. She was the only medical expert to use psychological testing of Mr. Harries in reaching her conclusions on Harries’ competency. Moreover, Dr. Lewis’ conclusions were based on more background information concerning Harries than any other expert. In the judgment of this Court, Dr. Lewis’ conclusion that Harries is incompetent to make the decision to waive his post-conviction remedies is more credible and has a more convincing force than the testimony of either of respondents’ experts. Both Doctors Kenner and Begtrup, respondents’ experts, disagreed with Dr. Lewis’ conclusion.

Dr. William Kenner is engaged in the private practice of adult and child psychiatry and is an assistant clinical Professor of Psychiatry at Vanderbilt University School of Medicine. Dr. Kenner is not board certified, but he does have experience evaluating the competency of criminal defendants to stand trial. Dr. Kenner’s opinion that Harries is competent is based upon his review of Harries’ prison medical file and five meetings with Harries over a five-day period. Dr. Kenner’s meetings with Harries ranged from thirty minutes to an hour and fifteen minutes in duration. Based on his evaluation of Harries and his medical file, Dr. Kenner concluded that Ronald Harries was competent to make the decision to waive post-conviction remedies. While finding that sensory deprivation may affect Mr. Harries, Dr. Kenner did not believe that it affected Harries’ competency to make a waiver decision. Dr. Kenner specifically disagreed with Dr. Lewis’ diagnosis of manic depressive illness and found Mr. Harries to have no abnormal or over-inflated estimation of himself.

The conclusion of Dr. Robert O. Begtrup, an assistant clinical Professor of Child Psychiatry at Vanderbilt University School of Medicine and Clinical Director of the Harriet Cohn Mental Health Center in Clarksville, Tennessee, on Mr. Harries’ competency was based upon two visits with him for two hours per visit, which occurred in June and July 1984. Dr. Begtrup is board certified in psychiatry and has experience in evaluating the competency of criminal defendants. Based on conversations with Harries during two meetings and background information on Harries in the respondents’ possession, Dr. Begtrup concluded that Mr. Harries is competent to make the decision to waive post-conviction remedies. He found that Harries understood the consequences of his waiver decision, understood the legal options available to him and understood the role of his attorneys, the Government and the courts in his decision. According to Dr. Begtrup, Harries has a wide range of moods, which is normal. Dr. Begtrup admitted, however, that his conclusions were based on less information than that used by Dr. Lewis and that he could not rule out the possibility that Mr. Harries suffered from a manic depressive illness.

The problem of sensory deprivation identified by Doctors Kenner and Begtrup as affecting Mr. Harries but not his waiver decision was also found by Dr. Otto Billig, who is a leading psychiatrist, having taught at the Vanderbilt University School of Medicine for over twenty-five years. Dr. Billig is board certified in psychiatry and author of numerous psychiatric articles. He met with Harries on two occasions from one and one-half to two hours at the prison. Dr. Billig testified that in his opinion Mr. Harries was incompetent to make the decision to waive post-conviction remedies. Not only did Dr. Billig find Harries’ mood to be euphoric before the stay of execution, he also concluded that Harries suffered from sensory deprivation due to the conditions of his confinement, which altered his level of consciousness. As a result of the sensory deprivation, Mr. Harries suffers from derealization — that is things become unreal to him or matters lose their usual meaning. This finding was supported convincingly by literature in the field. Moreover, Dr. Billig’s findings were consistent with those of Dr. Lewis, especially in terms of Harries’ altered perception of reality.

Like Dr. Billig, Dr. Harold Jordan, a board certified psychiatrist and currently Professor and Chairman of the Department of Psychiatry at Meharry Medical College, found after his evaluation of Mr. Harries that he suffers from sensory deprivation. Dr. Jordan viewed the cell and living conditions of Mr. Harries and concluded that those conditions were deplorable. Dr. Jordan found the following: limited, if not cramped, living space within the cell, poor ventilation resulting in extremely warm temperatures, no direct sunlight, little direct access to other people and limited opportunities for proper exercise. Because of these adverse conditions to which Mr. Harries has been subjected for several years, Dr. Jordan believed that Mr. Harries’ waiver decision indicated a suicidal intent that renders him incompetent. Although Dr. Jordan was of the opinion that Mr. Harries was generally intelligent, he, nevertheless, opined that for the purpose of deciding whether to waive post-conviction remedies, Ronald Harries was incompetent. This finding was reinforced in Dr. Jordan’s judgment after Harries went through the death watch procedure. Having been placed in the death watch cell from which he could view the electric chair continuously, Harries became very anxious and unable to reconsider the gravity of his decision and consequently persisted in his desire to be executed. This was clearly incompetent and suicidal behavior on the part of Mr. Harries, according to Dr. Jordan.

Having considered the opinion of all the medical experts, this Court finds that the petitioners have proven by a preponderance of the evidence that Mr. Harries has a serious mental disease, disorder or defect existing prior to the initiation of this case and during critical earlier times so as to render his waiver of post-conviction remedies void. This Court finds the testimony of Doctors Lewis, Billig and Jordan to be credible and more convincing on the issue of competency than the opinions of Doctors Kenner and Begtrup. In particular, the Court is impressed with the depth of Dr. Lewis' analysis of Mr. Harries’ mental condition. While the conclusions of Doctors Kenner and Begtrup differed from those of Doctors Billig and Jordan, this Court finds the inquiry of Dr. Billig and Dr. Jordan on the matter of sensory deprivation affecting Harries’ judgment to be more persuasive.

II.

Turning to the petitioners’ second theory to support their next friend petition, this Court’s research and that of all parties indicate that the issue of the voluntariness of an inmate’s decision to waive post-conviction remedies, when an inmate faces a sentence of death, has never been addressed by any other court. The petitioners and Mr. Harries argue that his decision to waive post-conviction remedies was involuntary because of the adverse conditions of confinement. As Mr. Harries testified, he decided not to pursue any challenge to his conviction and sentence because it would mean that he would have to live on death-row for six to ten years under deplorable conditions. Such a waiver is not, however, inherently unreasonable as long as it is made freely. Yet if not freely made, then, as previously pointed out, it is a violation of due process for a criminal defendant to bypass the safeguards created in federal and state post-conviction procedures.

By analogy to the area of criminal guilty pleas, this Court believes that a decision to forego due process protections created for a criminal defendant demands a voluntary relinquishment of constitutional rights. When a criminal defendant desires to enter a guilty plea to pending criminal charges, the court must determine whether the defendant is competent to enter such a plea. United States v. Masthers, 539 F.2d 721, 725 (D.C.Cir.1976). Because a guilty plea constitutes a conclusive conviction to which the trial court need only render judgment and sentence, a criminal defendant who desires to plead guilty must understand that he is waiving his constitutional right to trial by jury, to confront his accusers and to avoid compulsory self-incrimination. See, e.g., Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Before a waiver of constitutional rights is accepted in a guilty plea, the court must be satisfied that the guilty plea is voluntary and not the result of any force, threat or inducement other than the genuine desire to confess guilt to the crime. FED.R.CRIM.P. 11(d) and (e); United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.1981) (a voluntary confession must be the product of a rational mind and the free will of a defendant). Absent sufficient voluntariness, a guilty plea violates due process and is therefore void. United States v. Masthers, 539 F.2d at 725. Given the necessity that a guilty plea be voluntary, waiver of post-conviction remedies that may result in execution of a criminal defendant a fortiori requires a competently and voluntarily made waiver.

To determine whether a criminal defendant’s conduct is voluntary under the Federal Constitution, this Court must evaluate under the totality of the circumstances, Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1342-43, 10 L.Ed.2d 513 (1963), whether the defendant’s conduct is the product of a rational intellect and unconstrained will. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). Consequently, a defendant’s conduct is not voluntary if it is the result of an overborn will or the product of an impaired self-determination brought on by the exertion of any improper influences, Culombe, 367 U.S. at 602, 81 S.Ct. at 1879; Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Under any circumstances, voluntariness of the defendant’s conduct must be proven by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); see also United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.1981).

Application of the constitutional standard to determine voluntariness was applied in Townsend v. Henderson, 405 F.2d 324 (6th Cir.1968), in a situation involving an inmate’s subjection to adverse conditions of confinement. After a prison altercation involving several prisoners, one inmate, named Terry, confessed to involvement in the incident after prison officials placed him naked in solitary confinement while suffering from a head wound. Terry was placed in a dark cell and given only bread and water to eat. The cell contained primitive sanitary conditions and a board for a bed. Id. at 327. The Sixth Circuit reached what it labeled the “inevitable conclusion” that, under the circumstances, Terry’s confession was involuntary because he lacked the “free choice to admit, to deny, or to refuse to answer.” Id. at 328-29. The conditions of Terry’s confinement rendered his confession, although knowingly made, inherently involuntary.

In the present case, Mr. Harries alleges that the conditions of his confinement render involuntary his decision to waive his right to post-conviction habeas relief and acceptance of his sentence of death. The respondents argue that “the mere fact that a prisoner has chosen execution over life on death row does not render the prisoner incompetent, even if the conditions are possibly unconstitutional.” Respondents’ PreHearing Brief at 4. The respondents rely on Evans v. Bennett, 467 F.Supp. 1108, 1110 (S.D.Ala.1979), in which the district judge reasoned that John Evans’ decision to waive post-conviction remedies was rational given the allegations of unconstitutional conditions existing on death-row in the Alabama State penitentiary. Justice Rehnquist approved the district judge’s reasoning in his opinion as Circuit Justice in Evans v. Bennett, 440 U.S. 1301, 1305, 99 S.Ct. 1481, 1483, 59 L.Ed.2d 756 (1979). Nevertheless, Evans is clearly distinguishable from this case because Mr. Harries alleges that his decision to waive his post-conviction remedies was involuntary, however rational it may have been under the circumstances. Given the hesitancy of accepting waiver of rights, this Court does not find Evans dispositive of the matters raised by Mr. Harries. The lack of voluntariness alleged by Mr. Harries also differentiates his ease from Lenhard v. Wolff, 444 U.S. 807, 811 n. 2, 100 S.Ct. 29, 30 n. 2, 62 L.Ed.2d 20 (1979) (Marshall, J., dissenting) in which Jesse Bishop argued that the conditions of his confinement made him incompetent. In this Court’s judgment, the issue of whether the waiver of post-conviction remedies due to alleged unconstitutional conditions of confinement has never been addressed by the Supreme Court. Indeed, the issue asserted by Mr. Harries is one of first impression.

In regard to the conditions of confinement at issue in this case, the Court received evidence from the petitioners, the guardian ad litem and Mr. Harries. The evidence from the petitioners consisted of the direct testimony of their medical experts — Doctors Lewis and Jordan, who viewed Harries’ cell, and the testimony elicited from Doctors Kenner and Begtrup, respondents’ experts. The evidence from the guardian was presented in the form of the depositions of four inmates on death row — Timothy Eugene Morris, Richard Houston, Philip R. Workman and Richard W. Simon — and the deposition of Ernest Pellegrin, Commissioner of the Tennessee Department of Corrections. The guardian also presented discovery obtained from the respondents, probative of the issue of conditions of confinement. Mr. Harries’ evidence consisted of his testimony and that of his Catholic Deacon Frank Bainbridge. The Court has considered this evidence, not in terms of whether it shows a violation of the Eighth Amendment to the United States Constitution, but, in light of the jurisdictional issue, whether the petitioners have proved by a preponderance of the evidence that Mr. Harries’ failure to join in the next friend petition and seek post-conviction relief was the result of the coercive conditions of his confinement. The respondents offered no evidence to contradict the proof of adverse conditions in Unit VI. Thus, the Court’s findings relative to Unit VI conditions are undisputed.

Although the Tennessee State Penitentiary was constructed between 1895 and 1898, Unit VI, which houses inmates confined pursuant to a sentence of death, was built in 1957. The Unit contains cells that are forty-four square feet in size and nine cells that are thirty-five square feet in size. Interrogatory No. 11. (hereinafter cited as “Int. No.”). The cell occupied by Ronald Harries contains forty-four square feet of floor space. Admission No. 48 (hereinafter cited as “Adm. No.”). Like the other forty-seven inmates in Unit VI, Mr. Harries is housed in a single cell. Adm. Nos. 48 and 107. Although some double-celling of Unit VI inmates existed prior to the decision in the class action case of Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982), Adm. No. 6, the respondents have corrected that practice as part of its efforts to comply with Grubbs. Adm. No. 11.

Mr. Harries lives in a six by eight foot cell, which contains a toilet with a wash basin in the toilet well. A bunk bed is provided for his use, which takes up about one-third of the cell. Lighting in the cell. consists of one sixty-watt light bulb; additional lighting is available by use of an electrical hook-up, but this must be done at the inmate’s expense. There is no window in Mr. Harries’ cell and ventilation within his cell consists of blowers drawing out stale air. According to Mr. Harries, the ventilation is so poor that cigarette smoke stains his cell walls and toilet odors frequently make it difficult for him to sleep. Also, fumes from the respondents’ use of oil-based paints result in difficulty in normal breathing.

Mr. Harries is confined in his cell for twenty-three hours per day. Respondents permit him to exercise during the day for forty to forty-five minutes and to shower daily for ten to fifteen minutes. At all other times, including the taking of his meals, Mr. Harries remains within his cell. The temperature in Mr. Harries’ cell averages, according to the • respondents, between eighty and eighty-five degrees Fahrenheit. Adm. No. 18. A stipulation jointly submitted by counsel for the respondents and Harries indicates that the temperature within his cell on July 11, 1984 was ninety degrees. Although the Court is wary of the circumstances upon which the stipulation is based, the stipulation indicates that the temperature within Mr. Harries’ cell may reach uncomfortable and potentially life threatening limits.

Other death row inmates and the testimony of several medical experts who viewed Mr. Harries’ cell substantiate the prison conditions described by Mr. Harries. According to inmate Simon, the lack of a window in his cell causes him to lose his orientation of time and direction. Moreover, Simon complains about the small width of his cell, which makes it difficult for him to maneuver. Similarly, Richard Houston, also a death-row inmate, asserts that the lack of proper lighting within the cell affects his eyesight. ' The ventilation problem is exacerbated when the humidity increases due to steam created from the showers of inmates. Houston Deposition at 8; Workman Deposition at 4.

The evidence before the Court also shows that respondents have notice of ventilation and sanitation problems that have existed on death-row for several years without any correction until recently. In a letter dated November 27, 1981 to then Warden Jim Rose from employees of respondents, the need for correction of certain ventilation problems as well as the offensive presence of an open sewer was discovered. The letter reads as follows:

In the past months, both summer and winter, we have noted an extreme amount of humidity in the air in Unit 6. Often moisture in the air is so dense that, at room temperature, it condenses on the walls and ceiling and runs in rivulets to the floor. Evidence of the continuing humidity can be seen in the patches of fungus found growing on the walls. Apparently this moisture is coming from the steam pipes in the room adjacent to the foyer and the dehumidifying effects of the air conditioning system are insufficient to cope with it. In the winter the air conditioning is off and there is no way for the moisture to escape at all.
During the periods of housekeeping when the ammonia based cleaner is used, the air in the unit is saturated to an intolerable level with the ammonia because of the inadequate venting in the unit of fresh air. Care should be exercised by housekeeping to use the very smallest amount of cleaning compound that is effective.
There. is what appears to be an open sewer in the floor covered by a grate under the steam pipes in the room mentioned above. The odors from this grate are also becoming part of the air that is circulated in the system in the unit.
RECOMMENDATIONS:
1. Venting of steam room (actively) to outside.
2. Venting of fresh air (actively) to the inside unit.
3. Dehumidifying air of closed circulation system.
4. Sealing of open “sewer”.
5. Restraint in the amount of cleaning compound and waxes used.

Petitioners’ Exhibit No. 14. The authenticity of this letter was admitted by respondents. Further, when the letter is considered in conjunction with the uncontroverted testimony of Ronald Harries that all of the ventillation and sanitation problems identified, with the exception of the sewer problem, existed at the time of the evidentiary hearing, it is apparent to this Court that since 1981 the respondents have known about serious ventilation problems and health hazards in Unit VI and have either refused or unreasonably delayed correction of those problems.

The lack of exercise for Unit VI inmates makes the impact of prison conditions worse on death-row inmates. As a general practice, inmates are allowed forty-five minutes to exercise, but there is little for inmates to do. The exercise area is too small for running and the number of inmates in the yard restricts them from walking. Moreover, even when the inmates are outside to exercise, the grate that covers the exercise area restricts the sunlight from shining through. While the respondents have provided a set of weights for inmates, many are unable to use them. When the weather does not permit inmates to go into the small exercise area, during the winter or when it rains, no exercise is afforded to inmates. Thus, according to Mr. Harries and other death-row inmates, it is not unusual for inmates not to exercise for a week or more during such times. See, e.g., Houston Deposition at 12. Previously, about eighteen to twenty months before the instant ease, Unit VI inmates were allowed to visit the prison gymnasium at least once a month. That practice has been stopped apparently due to security reasons. Adm. Nos. 103 and 109.

Turning to the area of food service to Unit VI inmates, it is undisputed that prior to the commencement of this lawsuit, food served to inmates was cold. Houston Deposition at 38; Morris Deposition at 19; Simon Deposition at 12. Although the respondents do not keep any records on food temperature, Adm. No. 16, the evidence shows, based on the report of the respondents’ agent Willie L. Bowie, Director of Food Services Management of the Department of General Services, that problems in food services, including the lack of warmth of food served in Unit VI, have been corrected by placing a steam table within the Unit. Int. No. 2 and attachments. Even though Mr. Harries and other inmates complain about the type and quality of food given to inmates, no proof on this issue exists other than the inmates subjective opinions. The Court, however, is concerned about the credible assertions of Mr. Harries that he discovered part of a mouse in his food. At this point it appears that, to some degree, problems with food service are being addressed.

In the area of religious services to inmates, the respondents admit that the State of Tennessee provides no regularly scheduled religious services to death-row inmates. Int. No. 8. Commissioner Pellegrin, however, concedes that the availability of religious practice is a basic right. Pellegrin Deposition at 7 and 49. According to inmates Harries, Houston and Simon, their last religious service was Easter service of 1982. The respondents previously permitted religious counseling to death-row inmates from Frank Bainbridge and Jeff Blum, who talked to inmates individually. The respondents have ceased that practice at present, again citing security needs. It is clear beyond peradventure to this Court, however, that regular religious services are most appropriate for inmates especially those facing death. As explained by inmate Richard Simon, the availability of religious services would ease tension. Simon Deposition at 22. Moreover, the availability of religious services would be important

because with all the idle time that I have, instead of watching [TV], ... I honestly believe my time could be well-spent trying to change what got me into the penitentiary. Pm not saying the Bible would change me, but maybe it would make me a better person while I do my time.

Simon Deposition at 6. Clearly, as inmate Workman put the matter,

[A] man on death row, if anybody ... needs religious services, it would be a confined man that’s going to die, to have the chance to learn more about God and learn about forgiveness and to correct and have inner peace with his soul.

Workman Deposition at 5. Thus, inmates receive no religious services or counseling from respondents and the respondents prohibit any such services from outside sources.

When the totality of conditions on death-row and the impact on those conditions on inmates are considered, this Court is troubled by the adverse impact the conditions exact on death-row inmates. Respondents place inmates with a sentence of death in Unit VI without any psychological or other classification or testing of the inmate. Adm. No. 46. As stated by Commissioner Pellegrin, criminal defendants sentenced to death go from the courtroom to Unit VI “without a great deal of study.” Pellegrin Deposition at 9. Given that Unit VI inmates are already faced with a sentence of death, when placed in Unit VI with its adverse conditions of confinement, this Court finds convincing the assertions of death-row inmates like Ronald Harries, that they would rather be executed than endure such circumstances. As expressed by Philip Workman:

It constantly builds mental anguish, and physically not being able to exercise right deteriorates you physically. The heat, the coldness in winter, the food, it all makes a man just totally lose hope and makes a man where he would just about would rather get it all over with and go to the electric chair than continue to live in these conditions.

Workman Deposition at 5. While the Constitution does not require that the conditions of confinement be extravagent, those conditions must not physically punish the inmate or psychologically tear him down. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 350-353, 101 S.Ct. 2392, 2401-2402, 69 L.Ed.2d 59 (1981); Estelle v. Gamble, 429 U.S. 97, 102-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976).

In the judgment of this Court, the conditions of confinement inflicted on Mr. Harries are so adverse that they have caused him to waive his post-conviction remedies involuntarily. By a preponderance of the evidence, the petitioners have established that the next friend petition filed on behalf of Mr. Harries is needed to protect his due process interests. Except for vague unsubstantiated assertions of security by the respondents, there is no contradiction of the evidence on conditions in Unit VI. Thus, the Court concludes that the petitioners have shown standing on their second theory — that of involuntary waiver due to adverse conditions of confinement.

The Eighth Amendment prohibition against cruel and unusual punishment not only governs the conditions of confinement but also is the benchmark against which all actions involving prison inmates must be tested. As expressed in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the cruel and unusual punishment standard must be interpreted in a flexible and dynamic manner. Id. at 345-46, 101 S.Ct. at 2398 (citations omitted). The Eighth Amendment standard reaches barbaric physical punishments and any infliction of pain that cannot be justified by credible penological concerns. Id. at 346, 101 S.Ct. at 2398. (citations omitted). The standard draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). Such concerns of decency were considered by the court in Autry v. McKaskle, 727 F.2d 358 (5th Cir.), cert. denied, — U.S. —, 104 S.Ct. 1458, 79 L.Ed.2d 906 (1984).

In Autry, James David Autry was scheduled to be executed by lethal injection on October 4, 1983. At 11:00 p.m. on that date, Autry was taken to the death chamber and strapped on the gurney. Mr. Au-try was connected to the intravenous tubes. At 11:33 p.m. Justice Byron White stayed the execution. However, the Texas Attorney General and Prison Warden did not inform Mr. Autry until a few minutes after 12:00 a.m. that the stay was issued, although the Attorney General learned of the stay between 11:30 and 11:35 p.m. For over one-half hour Mr. Autry lay on the gurney- anticipating his demise, unaware that the Supreme Court had stayed the execution. Id. at 363. Before the Fifth Circuit, Mr. Autry argued an Eighth Amendment violation arising from the delay in informing him of the stay. The appellate court rejected his argument, reasoning that the evidence did not indicate “any unnecessarily demeaning or degrading acts by the state.” Id. Indeed, to the contrary, “the evidence [showed] that Au-try was treated with the dignity due any person under the circumstances.” Id. More critically, the Fifth Circuit found that the delay was the result of Autry’s lawyers’ efforts, acting on his direction. Id.

The Autry case implicitly recognized that a death-row inmate has an Eighth Amendment right to die with dignity. In the judgment of this Court the conditions of Mr. "Harries’ confinement are demeaning, degrading and deny him the right to die with dignity. Even if Mr. Harries was mentally competent and voluntarily waived his post-conviction remedies, the respondents are maintaining him under such conditions — notably, the lack of religious services, exercise, lighting and ventilation — so as to demean and degrade his last days. Such actions constitute wanton infliction of physical and psychological pain, which is an anathema to the standards of decency that our society demands.

III.

In conclusion, based upon the foregoing findings of fact and conclusions of law, this Court concludes that the petitioners have proven by a preponderance of the evidence that the absence of Mr. Hárries in the next friend petition is due to his mental incompetency and his involuntary waiver of post-conviction remedies due to adverse conditions of confinement. Mr. Harries’ waiver of available post-conviction remedies is void and his refusal to join in the next friend habeas petition contravenes due process protections. ' The petitioners have proven the necessity of their petition and explained the failure of Mr. Harries to represent his interests. Accordingly, the Court concludes that the petitioners have standing. To prevent Mr. Harries from further bypassing due process protections to which he is entitled, the stay of execution previously issued by this Court is continued pending final disposition of this proceeding. The respondents’ motion to dismiss this case is DENIED.

      . The Order of June 8, 1984 also directed the respondents to cease administration of drugs to Mr. Harries so that his ability to reason would not be impaired. Consequently, the evidentiary hearing of July 12 and 13 did not address whether drugs impaired Mr. Harries’ ability to waive available post-conviction remedies.

      . The relief sought by Mr. Harries and the petitioners distinguishes their interests in this case. In his 42 U.S.C. § 1983 complaint, Mr. Harries challenges the conditions of confinement on death-row and seeks injunctive relief correcting those conditions so that he might consider freely his legal alternatives challenging his conviction. Harries Complaint ¶ IV, No. 5. The petitioners not only question the constitutionality of death-row conditions and how those conditions effect Harries’ waiver decision, but also attack the legality of his conviction and sentence of death under 28 U.S.C. § 2254. Petition. ¶¶ 8 and 21, No. 5.

      . This Court recognizes that it initially ruled that the burden of proving the competency of Mr. Harries was on the respondents. Having determined that the burden of proof was erroneously placed on the respondents, this Court has corrected that error by evaluating the evidence under the proper standard.

      . In determining the competency of a criminal defendant to enter a guilty plea, courts apply the competency standard that originated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), which is equivalent to the Rees competency test. See, e.g., Williams v. Bordenkircher, 696 F.2d 464, 466-67 (6th Cir.), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 287 (1983). In Dusky, the Court found that the district court’s failure to consider enough evidence on the competency of the defendant to stand trial rendered its decision on the defendant’s competence erroneous. In criticizing the district judge’s limited findings on the defendant's perception of time and place orientations, the Supreme Court held that a criminal defendant is not competent to stand trial unless "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him.” Id. 362 U.S. at 402, 80 S.Ct. at 788. Like the Rees test, the standard set forth in Dusky highlights the constitutional necessity that a criminal defendant understand the proceedings and then be capable of aiding his legal counsel in choosing among legal alternatives.

      . Although the court in Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982), found that the conditions of confinement that exist within twelve of Tennessee’s adult penal institutions, including the Tennessee State Penitentiary wherein Unit VI is located, violated constitutional standards, that case does not preclude consideration of the conditions currently existing in Unit VI as raised by Mr. Harries. The Grubbs Court concluded that Unit Vi’s double celling of inmates and food service needed correction. Grubbs, 552 F.Supp. at 1125-26. Moreover, having reviewed the documents recently submitted in Grubbs settling the remedial aspect of that case, this Court does not discern that conditions in Unit VI will be addressed as a result of the Grubbs case.
      Consideration of Grubbs, however, supports Mr. Harries’ claim of involuntary waiver of post-conviction remedies due to adverse conditions. That case stated that the "environmental conditions range from bad to shocking, and clearly have a deleterious impact upon the lives of the inmates housed there.” Grubbs, 552 F.Supp. at 1126. When the Grubbs' findings are considered with Mr. Harries’ allegations of adverse conditions since the Grubbs ’ decision, this Court rejects the respondents' argument that Grubbs forecloses Mr. Harries' claims.