author: ANN ALDRICH, District Judge.

text:
    Jimmie Lee CLARK, Petitioner, v. R.C. MARSHALL, Respondent.
    Civ. A. No. C80-110.
    United States District Court, N.D. Ohio, E.D.
    Jan. 22, 1985.
    Albert Purola, John Winthrop Ours, Willoughby, Ohio, for petitioner.

      Richard David Drake, Asst. Atty. Gen., Columbus, Ohio, for respondent.
   MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

On March 22,1976, a jury in the Court of Common Pleas for Lake County, Ohio found Jimmie Lee Clark guilty of aggravated murder under Ohio Rev.Code § 2903.01 and aggravated robbery under Ohio Rev. Code § 2911.01. Clark was sentenced to life imprisonment on the first count and seven to twenty-five years on the second count. The Court of Appeals affirmed the convictions, State v. Clark, No. 6-017 (11th Dist. May 31, 1977), as did the Ohio Supreme Court. State v. Clark, 55 Ohio St.2d 257, 379 N.E.2d 597 (1978). The Supreme Court denied Clark’s petition for a writ of certiorari. Clark v. Ohio, 440 U.S. 950, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979).

Clark commenced this action under 28 U.S.C. § 2254 on January 25, 1980 by filing an application to proceed in forma pauper-is. After the case was transferred to this Court’s docket, the request was granted on June 18, 1980 and Clark’s petition for writ of habeas corpus was filed. On December 10, 1980, this Court adopted the magistrate’s report and recommendation, to which Clark had not objected, and denied the petition. Clark then appealed. The Sixth Circuit Court of Appeals determined that the jury instructions on the aggravated murder charge violated the Due Process Clause of the Fourteenth Amendment, and directed this Court to order Clark’s release from custody unless the State chose to retry him. With respect to the aggravated robbery conviction, the court decried the state court’s failure to make findings of fact and conclusions of law at the close of a suppression hearing and ordered this Court to conduct an evidentiary hearing to determine whether Clark’s statements to police were constitutionally admissible. Clark v. Jago, 676 F.2d 1099 (6th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984).

After the Supreme Court denied the State’s petition for a writ of certiorari and the Sixth Circuit transmitted its mandate to this Court, an evidentiary hearing was conducted on July 20, 1984 and August 7, 1984. Upon consideration of the documentary evidence and testimony presented at that hearing, and upon review of the record in its entirety, this Court concludes that Clark was denied his Fifth and Fourteenth Amendment right to presence of counsel and that incriminating statements he made while deprived of counsel should not have been admitted before the jury. The petition must be granted and the writ of habeas corpus issued with respect to the aggravated robbery conviction as well as the aggravated murder conviction.

I.

The narrow issue before this Court on remand is the admissibility of two incriminating statements Clark made to Willoughby, Ohio police officers on December 13, 1975. On that date Clark made four statements to the police: the first and second at a Cleveland police station, the third at the Arco gas station in Willoughby where the crimes took place, and the fourth at the Willoughby police station. The trial judge granted Clark’s motion to suppress the second and third statements but admitted the first and fourth statements. This Court’s task is to assess Clark’s Fourth, Fifth, Sixth and Fourteenth Amendment objections to the admission of those statements.

The procedural posture in which this case is presented invites a mixture of chagrin and incredulity. In reviewing the state trial court’s decision denying the motion to suppress the two statements, the Sixth Circuit stated that “noticeably absent from the record are many findings of fact or analysis of the applicable law” and concluded that “this absence of fact finding coupled with our doubt as to whether the state trial court utilized the proper legal standards of waiver requires remand for further proceedings by the District Court.” 676 F.2d at 1106. The court of appeals repeatedly noted that “[t]he state trial court made no express findings of fact,” Id. at 1108-09, that its review of Clark’s petition was complicated by “the total absence of fact finding,” Id. at 1110, and that “there are simply no findings to which we can defer ...” Id. at 1113. It therefore ordered that this Court conduct the suppression hearing anew and make appropriate findings of fact. Id. at 1110-12 (citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), Elliott v. Morford, 557 F.2d 1228 (6th Cir.1977), and Harris v. Oliver, 645 F.2d 327 (5th Cir.1981)).

Unfortunately, the Sixth Circuit’s conclusions about the factual record in the state court proceedings were based upon a manifestly incomplete record in this proceeding. For unexplained reasons, the record originally before this Court and before the Sixth Circuit did not contain the five-page “Opinion Re Defendant’s Pretrial Motion to Suppress” issued by the state court trial judge. This opinion was introduced at the July 20, 1984 hearing as Joint Exhibit 1. Title 28 U.S.C. § 2254(d) governs the federal habeas court’s review of the state court’s findings and provides that under normal circumstances the findings are entitled to deference and a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Therefore, even though this Court held the evidentiary hearing mandated by the court of appeals, it may overturn the state court’s findings and make factual determinations of its own only if the requirements of § 2254 are satisfied.

II.

The murder and robbery for which Clark and Willie Jones a.k.a. “Slick Willie” were convicted took place on December 7, 1975 at an Arco gas station in Willoughby. On December 12, 1975, Clark was arrested by Cleveland police officers and charged with an unrelated aggravated robbery which had taken place in Cleveland. Robert Tonne, a Cleveland police officer, testified at trial that he read Clark his Miranda rights at the time of arrest; Clark testified that he was read his rights not at the time of arrest but after his arrival at the police station. Clark apparently made no statements that day.

A. The First Statement

On the morning of December 13, 1975, Tonne and Thomas Gibbons, another Cleveland police officer, attempted to interrogate Clark about the Cleveland robbery. Tonne testified that Gibbons read Clark the Miranda warnings prior to questioning him; Clark testified that he was not read his rights but asked for an attorney. The state court believed the officers with respect to the Miranda rights and Clark with respect to the request for an attorney, stating that Clark “has been read his rights by a Cleveland Detective and had refused to answer and had demanded a lawyer, in a distinctly separate interrogation. Detective Gibbons stated that at that interrogation after the usual Miranda warning was read, the defendant was asked if he understood his rights, and he said that he did.” Having declined to discuss the Cleveland robbery, Clark was returned to his cell.

Also present at the Cleveland police station that morning were three Willoughby police officers, Clifford Collins, Lawrence Reeves, and Kenneth Eisele. Eisele had previously lifted a latent fingerprint of Clark’s from the cash box at the Arco station, had made photographs of that fingerprint and Clark’s police file fingerprint, and had obtained a warrant for Clark’s arrest from Elton Vogel, a Willoughby police detective who also served as Deputy Clerk of the Willoughby Municipal Court. The three officers travelled to Cleveland seeking information from the city’s police about Clark’s whereabouts; in addition, Eisele wished to review the fingerprint photographs with Robert Burt, the Cleveland police department’s fingerprint expert. The officers arrived at Cleveland police headquarters at approximately 9:00 a.m. Neither Collins, Reeves, nor Eisele knew that Clark was in custody; neither Tonne nor Gibbons knew that Clark was a suspect in the Willoughby murder-robbery. The Willoughby officers proceeded to the Scientific Investigation Unit (“SIU”) and the Record Unit, both located on the third floor. At that time, Clark was in his cell on the fourth floor.

Tonne and Gibbons met Collins, Reeves and Eisele at the SIU. The Willoughby officers told the Cleveland officers about the fingerprint and arrest. warrant and were told in turn that Clark was in custody on the fourth floor. Tonne and Gibbons took the fingerprint photographs and arrest warrant, went to the fourth floor, and had Clark brought out of his cell. Clark was not provided with a lawyer. When Clark entered the room, the Cleveland officers did not read him the Miranda rights for a second time. They confronted him with the photographs and the arrest warrant. Clark then indicated that he wanted to talk to the Willoughby officers. The Cleveland officers did not question Clark about the Willoughby charges; instead, they went to get the Willoughby officers and brought Collins and Reeves to the room where Clark was being kept. Tonne and Gibbons introduced Collins and Reeves to Clark and left the room.

The state court made the following findings of fact with respect to the subsequent actions.

This Court finds from the facts presented that on December 13, 1975, the defendant came into contact with two officers of the Willoughby Police Department, Mr. Collins and Mr. Reeves. This was not defendant’s first confrontation with law enforcement. He had previous interrogatory confrontations and had on other occasions been informed of his rights under such circumstances. He was not illiterate and admittedly had progressed in school to the eleventh grade.... Mr. Collins of the Willoughby Police Department read the “Miranda Warning” to defendant upon first contact. The defendant stated that he knew his rights and wanted to cooperate and did cooperate with an inculpatory statement. This factual fabric was corroborated by Detective Reeves. These two officers both testified that when defendant was requested to reduce his oral statement to writing[,] Defendant demurred and said that he wished an attorney. At that point he was returned to the detention facility.

It is undisputed that Clark did not sign a written waiver of his rights. Collins and Reeves both testified that Clark made an oral statement implicating himself in the robbery of the Arco station. Clark points out certain alleged inconsistencies in the testimony of Collins, Reeves and Eisele, but does not directly challenge the state court’s conclusion that Collins read Clark his rights and that Clark made an inculpatory statement. Under § 2254(d), this Court therefore accepts those findings of fact as true.

After Clark requested counsel and indicated he did not want to talk to the Willoughby officers any more, he was returned to his cell.

B. The Second Statement

The Willoughby officers then made plans to transport Clark to Willoughby. Eisele testified that Clark told the Willoughby officers in the hallway that he wanted to cooperate and make a statement. The officers did not read him a complete Miranda warning. Clark then allegedly made a •statement describing the gun used at the Arco station. The officers indicated their desire to have Clark make a written statement, prepared an interview room, and located a stenographer. Clark was read his Miranda rights and demanded counsel.

No written statement was taken. His oral statement concerning the gun was suppressed by the state court, which stated:

Clearly any statement made by defendant after his original meeting with the officers of the Willoughby Police Department would amount to continued questioning after an expression by defendant that he wished to consult an attorney absent extenuating circumstances wherein the defendant being fully aware of his rights reopened the dialogue.

C. The Third Statement

During the ride to Willoughby, Collins asked Clark if he would go to the Arco station and point out where the crime took place. With or without Clark’s consent, the parties went to the gas station. Clark allegedly made a third statement. For the same reasons cited with respect to the second statement, the state court granted Clark’s motion to suppress the third statement.

D. The Fourth Statement

Clark’s fourth statement occurred after he arrived at the Willoughby police station, was processed, and was fed. At about 2:30 p.m., as Clark was being prepared for his return to Cleveland, he allegedly told the officers again that he wanted to make a statement and cooperate. Whether Clark asked for an attorney or not is disputed. In any event, Clark then executed a copy of the Willoughby police rights form which included an express waiver of the right to counsel. At the state court hearing, Clark stated that he signed the waiver after being assured that his cooperation would be explained by the prosecutor to the court, and that his willingness to give the name of his accomplice was contingent upon receiving such guarantees.

The police prosecutor, Clifton Jones, arrived and advised Clark of his Miranda warnings. A tape machine recorded the conversation. Jones explained to Clark that he lacked the power to control a court’s disposition of Clark’s case. Clark indicated that he understood both the Miranda warnings and Jones’ caveat. At Clark’s request, the tape recorder was turned off. Clark then made another statement concerning his involvement in the Arco station crimes. He refused a request to reduce the statement to writing and demanded counsel. The court denied the motion to suppress and Reeves testified about the statement at trial. The court’s findings of fact were as follows:

At the Willoughby Police Station, the defendant evinced a desire to cooperate or to turn “State’s Evidence” if there was a promise that his cooperation would be made a matter of record and passed on to the prosecutor and judge. Officer Reeves wrote a note somewhat to this effect, however, this note was destroyed. Prosecutor Pat Jones appeared at the Willoughby Police Station and read the defendant the Miranda warning and asked defendant if there was anything he wished to ask. The defendant in response asked:
“ * * * if I really tell who really did it, you understand, I mean, that means I really get charged with he same thing still?”
In answer, Mr. Jones informed the defendant that he could make no promises. To this, the defendant responded:
“Well really I wanted to turn State’s Evidence, that’s what I really wanted to do.”

After the motions to suppress the first and fourth statements were denied, and the state presented its case to the jury, Clark was convicted of aggravated murder and aggravated robbery. As noted earlier, the Sixth Circuit’s holding concerning the defective jury instructions compels the state to retry Clark on the aggravated murder charge.

III.

In this action, Clark originally raised Fifth, Sixth, and Fourteenth Amendment challenges to the state court ruling admitting the first and fourth statements. On remand he adds a claim that the arrest warrant was issued in violation of the Fourth Amendment.

A. Fifth Amendment: Presence of Counsel

In Miranda v. Arizona, 384 U.S. 436, 86 5. Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney. In defining this constitutional right to have counsel present during such an interrogation, the Court stated:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he-wants one before speaking to police, they must respect his decision to remain silent.

Id. at 473-74, 86 S.Ct. at 1627-28.

Subsequent cases have repeatedly found it inconsistent with Miranda for authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (and cases cited therein).

Miranda did not, however, preclude waiver of the right to counsel, even after the defendant has requested a lawyer. Rather, Miranda incorporates pre-existing standards governing such waivers:

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490 n. 14 ... [84 S.Ct. 1758, 1765 n. 14, 12 L.Ed.2d 977 (1964)]. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 ... [58 S.Ct. 1019, 82 L.Ed. 1461] (1938), and we reassert these standards as applied to in-custody interrogation ....

384 U.S. at 475, 86 S.Ct. at 1628.

Under Johnson, waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” 304 U.S. at 464, 58 S.Ct. at 1023.

With Miranda’s constraints on in-custody interrogation and waiver of the right to counsel in mind, this Court must assess the state court’s findings concerning Clark’s first and fourth statements. Also in mind is the Supreme Court’s admonition that the propriety of the interrogation and the legitimacy of the waiver require separate inquiries, “and clarity of application is not gained by melding them together.” Oregon v. Bradshaw, 462 U.S. 1039, -, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983) (plurality opinion).

1. The First Statement

The state court’s analysis of Clark’s first statement to the Willoughby police culminated in the following conclusion of law:

... In support of his motion [to suppress], defendant refers to the unpublished case of State of Ohio v. Leonard DeFazio, Case No. 614, Court of Appeals of Ohio, Eleventh District. Mr. DeFazio stated that he was willing to talk to an investigating officer because he didn’t think that talking to him would be damaging. He allegedly said: “I won’t sign nothing but I’ll answer questions.” Such a declaration is not present in this case. However, the DeFazio court relied upon State v. Jones, 37 Ohio St.2d 21 [306 N.E.2d 409], wherein the Ohio Supreme Court upheld:
“ * * * when a defendant subsequently acts in such a way as to reasonably alert an interrogating officer that the warnings given have been misapprehended, the officer must, before any further questioning, insure that the defendant fully and correctly understands his Fifth Amendment Rights.” ([37 Ohio St.2d] pages 26-27 [306 N.E.2d 409]).
The defendant in Jones willingly engaged in conversation with a detective until the detective started to take notes; at that point, Jones refused to speak further if anything was written down.” Such a point was reached in the instant case and further interrogation was stopped. A telling portion of State v. Jones is found [37 Ohio St.2d] at page 26 [306 N.E.2d 409]:
“Although appellant’s conduct at police headquarters may be susceptible to various interpretations, the record fails to negate one interpretation fatal to the state’s case — that appellant misunderstood the legal effect of his speaking to Detective Powell.”
Mr. Clark, the defendant, stated in testimony upon his hearing that he knew the oral statements made by him could be used against him. This admission on the record negates the interpretation that he misunderstood the legal effect of his speaking to Detectives Collins and Reeves.

This conclusion is consistent with the court’s factual finding that Clark was a literate, seasoned veteran of the criminal justice system who knew his rights, wanted to cooperate with the Willoughby police officers, and did so cooperate. With respect to the waiver issue, the opinion also partially quells the Sixth Circuit’s “doubt concerning the application of correct legal standards,” since the cited case, State v. Jones, itself cites both Miranda and Johnson in an accurate and detailed discussion of principles governing waiver of fundamental constitutional rights. No evidence presented during the evidentiary hearing conducted by this Court calls the state court’s findings on the waiver issue into question. Recalling “our obligation to defer to the findings of the state courts,” and acknowledging application of the correct standard, this Court finds that, if the interrogation of Clark was permissible in the first place, the finding that he waived his right to counsel must be sustained. If, however, the questioning of Clark was improper, then the “next inquiry” into the circumstances of the waiver is simply irrelevant. Oregon v. Bradshaw, 103 S.Ct. at 2835.

The crucial sentence in Miranda holds that once the suspect has been advised of his Fifth Amendment right to counsel, “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. at 474, 86 S.Ct. at 1628. This language has consistently been regarded as a per se rule barring further interrogation after assertion of the right to counsel. Edwards v. Arizona, 451 U.S. at 485-86, 101 S.Ct. at 1885; Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980); Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979) (discussing Miranda’s “rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.”); Michigan v. Mosley, 423 U.S. 96, 104 n. 10, 96 S.Ct. 321, 326 n. 10, 46 L.Ed.2d 313 (1975); Id. at 109, 96 S.Ct. at 329 (White, J., concurring) (“per se rule against further interrogation after assertion of a right”); see Solem v. Stumes, 104 S.Ct. at 1349 (Stevens, J., dissenting) (“Indeed, this language forbids the police even to ask if the individual wishes to waive his rights, since ‘there can be no questioning.’ ”). The state court apparently recognized this standard when it suppressed the second and third statements on the grounds that “any statement made by defendant after his original meeting with the officers of the Willoughby Police Department would amount to continued questioning after an expression by defendant that he wished to consult an attorney absent extenuating circumstances wherein, the defendant being fully aware of his rights reopened the dialogue.” But the state court also made a finding of fact that Clark asked for an attorney during his first interview with the Cleveland officers. Since there is no evidence in the record that Clark waived his right to an attorney between the time he was returned to his cell and the time he next encountered officers Tonne and Gibbons, the issue is whether the session which began in their second visit to him — accompanied by the arrest warrant and fingerprint photographs — and culminating in his first statement to the Willoughby officers, constituted an “interrogation” forbidden by Miranda.

Rhode Island v. Innis clarified what activities are forbidden once a suspect asks for counsel:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. The focus reflects the fact that Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Id. 446 U.S. at 300-02, 100 S.Ct. at 1689-90 (emphasis in original) (footnotes omitted).

In Innis, a suspect in a robbery and murder was arrested and read his Miranda rights. He stated that he understood his rights and wanted a lawyer. Police officers then placed the suspect, Innis, in the back seat of a patrol car. The officers entered the vehicle and discussed the shotgun which had been used in the crimes, whose location was not known. One officer told the others that “it would be too bad if ... a girl — would pick up the gun, maybe kill herself.” Innis then interrupted the conversation and told the officers to run the car around so he could show them where the gun was located. The officers and Innis returned to the scene of the arrest. Innis was read his Miranda rights again but proceeded to lead the police to the site of the shotgun. He was later convicted of kidnapping, robbery and murder. 446 U.S. at 293-96, 100 S.Ct. at 1686-87.

The Supreme Court held that the officers’ conduct did not violate Miranda:

... [Innis] was not “interrogated” within the meaning of Miranda. It is undisputed that the first prong of the definition of “interrogation” was not yet satisfied, for the conversation between [the officers] included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited.
Moreover, it cannot be fairly concluded that the respondent was subjected to the “functional equivalent” of questioning. It cannot be said, in short, that [the officers] should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent____
The ease thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent’s contention that, under the circumstances, the officers’ comments were particularly “evocative.” It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.

446 U.S. at 302-03, 100 S.Ct. at 1690-91 (footnote omitted). The Court concluded that comments which involve “subtle compulsion” are not necessarily “interrogation”: “It must also be established that a suspect’s incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.” Id.

The Sixth Circuit addressed Innis in United States v. Avery, 717 F.2d 1020 (6th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). After defendant Avery had been read his Miranda rights and contacted his attorney by telephone, the attorney told police detective Payne that his client did not wish to make a statement. While the detective completed Avery’s identification form, he asked the defendant “several questions on such topics as the defendant’s address and date of birth. Payne also used the defendant’s driver’s license as a source of information. The defendant was also fingerprinted and photographed.” Id. at 1022. After the booking process was completed, and a third officer left the room, the defendant suddenly made an incriminating statement to detective Payne. The statement was admitted at trial after the court concluded that Avery had waived his privilege against self-incrimination. Affirming, the court of appeals stated:

We believe the questioning in this case falls outside the context of the inherently coercive custodial interrogation for which the Miranda safeguards were designed, ... and thus should not be characterized as “interrogation.” The record indicates that the questions were part of a routine procedure to secure biographical data to complete the booking process. These questions did not relate, even tangentially, to criminal activity. Moreover, there is no evidence that the defendant was particularly susceptible to these questions, or that police somehow used the questions to elicit an incriminating response from the defendant____

Id. at 1024 (citation omitted).

The Avery court acknowledged, however, “that courts should carefully scrutinize the factual setting of each encounter of this type” because “[ejven a relatively innocuous series of questions may, in light of the factual circumstances and the susceptibility of a particular suspect, be reasonably likely to elicit an incriminating response.” Id. at 1025.

This Court finds that the circumstances of Clark’s first statement pose precisely this problem, rendering the case readily distinguishable from Innis or Avery. When Tonne and Gibbons confronted Clark with the arrest warrant, and particularly with the photographs of the fingerprints, they were conducting the functional equivalent of interrogation, defined in Innis as “actions on the part of the police ... that the police know are reasonably likely to elicit an incriminating response from the suspect.” 446 U.S. at 301, 100 S.Ct. at 1690. Moreover, unlike the questions in Avery, the arrest warrant and fingerprint photographs related, not just tangentially, but directly, to criminal activity. The Cleveland officers’ actions therefore violated Miranda’s prohibition on custodial interrogation following a request for counsel. The immediate product of their illegal interrogation — Clark’s decision to make a statement to the Willoughby officers — is irreparably tainted. It follows that the statement itself is tainted as well, for the Willoughby officers’ rereading of Clark’s Miranda rights cannot fairly be said to have undone the prior wrong. The state court’s finding that Clark’s waiver of his right to counsel prior to making his first statement was knowing, voluntary or intelligent, under the totality of the circumstances, is therefore irrelevant. When a defendant has “expressed his view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel's presence may properly be viewed with skepticism.” Michigan v. Mosley, 423 U.S. at 110 n. 2, 96 S.Ct. at 329 n. 2 (White, J., concurring); Wyrick v. Fields, 459 U.S. 42, 53, 103 S.Ct. 394, 399, 74 L.Ed.2d 214 (1982) (Marshall, J., dissenting). When the proximate cause of the decision to make the statement was an illegal interrogation, the statement must be suppressed. The state court therefore erred in permitting Clark’s first statement to the Willoughby police to be read to the jury.

2. The Fourth Statement

The state court’s findings of fact with respect to Clark's statement at the Willoughby police station were followed by this legal conclusion:

It is clear from the total testimony that at this point, Mr. Clark wanted to make the best deal that he possibly could. Mr. Clark testified that he clearly understood his rights after they were read by Mr. Jones. It must reasonably follow that having been given the appropriate Miranda warning and understanding it and having expressed a desire to exculpate himself, any statement given by defendant must have been voluntary. (See State v. Conley, 32 Ohio App.2d 54, at 58 [, 288 N.E.2d 296]).

As with the first statement, the state court applied a state court case which incorporated the appropriate federal constitutional standards. State v. Conley, 32 Ohio App.2d 54, 296, 288 N.E.2d 296 (Marion County 1971), discusses Miranda and follows, sub silentio, Johnson v. Zerbst, in affirming the admission of incriminating statements which “were freely and voluntarily given by one fully aware of his rights.” 288 N.E.2d at 296 (quoting State v. Perry, 14 Ohio St.2d 256, 237 N.E.2d 891 (1968)). Again, absent any evidence of an improper interrogation, considerable deference must be paid to the state court’s finding that Clark properly waived his rights.

This deference does not end the habeas court’s inquiry, however. The court of appeals offered some advice for assessing the fourth statement:

Although we believe the proper determination of the admissibility of the first statement is a key threshold decision, even if it is deemed to have been unconstitutionally obtained, Clark’s fourth statement may be admissible under certain circumstances. If the District Court finds that the fourth statement was a product of Clark’s initiative and given without interrogation, it may be admissible. See Edwards v. Arizona, supra. However, the psychological effect, if any, on Clark after having made the first statement is also significant in determining the lawfulness of the fourth statement. After an accused has let the cat out of the bag by confession, no matter what the inducement, he may not thereafter be free of the psychological and practical disadvantages of having confessed. United States v. Bayer, 331 U.S. 532, 540-41 [67 S.Ct. 1394, 1398, 91 L.Ed. 1654] ... (1947); Maglio v. Jago, 580 F.2d 202 (6th Cir.1978).
On remand, the District Court must also consider the impact, if any, of the police course of conduct throughout the day prior to Clark’s alleged initiation of the fourth statement to the police. Finally, the District Court should consider the appellant’s age, education, mental state, and all other well-known criteria relevant to the determination of intent and volition to waive constitutional rights____

676 F.2d at 1113 (other citations omitted).

With the state court opinion now a part of the habeas court’s record, it is appropriate to defer to that court’s conclusion concerning the narrow circumstances of Clark’s waiver decision. Whether the inadmissibility of the first statement contaminates the otherwise admissible fourth statement, however, was not before the state court, which failed to address the interrogation issue. On this point, the Sixth Circuit’s reference to Maglio v. Jago is not merely instructive but decisive. That case concerned two statements by a sixteen-year-old runaway. The court of appeals held inadmissible an inculpatory statement made after prosecutors refused to honor the defendant’s express request for counsel. It then turned to a second statement, made after the defendant received a second set of Miranda warnings and purportedly executed a knowing and voluntary waiver of his right to counsel.

... The State argues that even if the earlier statement was admissible, the later statement, following a careful reexplanation of Maglio’s rights, should be admissible. We commend the care with which the prosecutor explained Maglio’s rights to him, but nonetheless, the request to see an attorney remained unhonored, and the taped interrogation followed within less than an hour of the illegal questioning....
******
... In this case, the condition which makes the first confession inadmissible, the failure to provide counsel to an accused during an interrogation, had not yet been removed. Therefore, the recorded statement is equally inadmissible.

580 F.2d at 207 (footnote omitted).

Although a somewhat longer period of time elapsed between Clark’s two statements, this case is otherwise indistinguishable from Maglio, and clearly falls within its holding that failure by police to comply with a Miranda request for counsel renders inadmissible any statements made during interrogations until such time as counsel is provided. The state court therefore erred in admitting Clark’s fourth statement in evidence before the jury. It too must be suppressed.

B. Other Claims

In light of this resolution of Clark’s claims with respect to his Fifth and Fourteenth Amendment right to presence of counsel, this Court need not address his contentions with respect to the related Miranda right to remain silent. Nor should it address his Fourth Amendment challenge to the validity of the arrest warrant or his Sixth Amendment claim concerning the right to counsel. Three principles bar review of the Fourth Amendment claim: it was not raised before the state judiciary, and no good cause for that default has been asserted and demonstrated, Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); it was not mentioned in the petition for writ of habeas corpus filed with this Court on June 18,1980; and, even if it were properly before this Court, litigation of Fourth Amendment claims in federal habeas actions is barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). As for the Sixth Amendment claim, it was not raised before the highest state court; and, in any event, United States v. Gouveia, — U.S. -, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984), resolved the issue against Clark by holding that “the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.”

IV.

Pursuant to the Sixth Circuit’s mandate and the preceding discussion, the petition for writ of habeas corpus is granted. Unless the State chooses to retry Clark within sixty (60) days of the filing of this Memorandum and Order, using appropriate jury instructions on the aggravated murder charge and making no use of illegally obtained statements, Clark shall be released from the custody resulting from his 1975 convictions.

IT IS SO ORDERED.

      . Title 28 U.S.C. § 2254 provides in pertinent part as follows:
      (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by "a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by' a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
      (1) that the merits of the factual dispute were not resolved in the State court hearing;
      (2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing;
      (3) that the material facts were not adequately developed at the State court hearing;
      (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
      (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
      (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
      (7) that the applicant was otherwise denied due process of law in the State court proceeding;
      (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
      And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

      2. The portions of the opinion replaced by the ellipsis summarize the Miranda warnings given ió Clark by Gibbons and Tonne earlier in the morning, and were quoted previously.

      . Among the alleged inconsistencies cited in Clark’s post-hearing memorandum are:
      (1) Collins and Reeves described Clark’s demeanor as calm while the Cleveland officers said that he was nervous and excited;
      (2) Collins testified that Clark discussed the photographs he was shown while Reeves denied there was any discussion about the fingerprint photographs.
      (3) Collins stated that Clark asked for a lawyer immediately after inculpating himself in aggravated murder while Reeves claimed that Clark asked for a lawyer after he had given an oral "statement.”
      (4) Collins stated that the interview with Clark took 30 to 45 minutes while Reeves put the time at 15 to 20 minutes.
      (5) Collins did not recall Eisele being present at the interview while Eisele stated that he was there, read the warrant to Clark and explained the fingerprint photographs to the defendant.
      In light of the length of time between the events and this Court's hearing this summer, these alleged inconsistencies do not provide adequate grounds under § 2254(d) to call into question the state court's conclusion that Clark was read his rights, made an oral statement, and then asked for an attorney.

      . At the state court hearing, the officers and Clark offered different accounts on this point. The officers’ testimony at the hearing before this Court did not address the question. Clark did not testify.

      . The completed form states:
      VOLUNTARY STATEMENT — WAIVER OF RIGHT TO PRESENCE AND ADVICE OF A LAWYER FREE OF [COST TO] ME IF I AM INDIGENT. Date 12-13-1975 TIME 2:30 PM PLACE Willoughby Police Dept. I, Jimmie Lee Clark am 21 years of age, my address is 9713 Heath Avenue Cleveland, Ohio I have been cautioned by Det. Laurence M. Reeves who has identified himself as a WIL-LOUGHBY POLICE OFFICER, and who has warned me as follows:
      WARNING
      I am a police officer, I warn you that anything you say may be used in a Court of Law against you; That you have an absolute right to remain silent; That you have the right to the advice of a lawyer before and the presence of a lawyer here with you during questioning, and That, if you cannot afford a lawyer, one will be furnished for you free before any questioning if you desire.
      I hereby state that I want to make a statement without a lawyer, that is to say, give up and do without the right to talk to a lawyer and ask his advice before I make a statement, and also I wish to give up and do without having a lawyer present with me during the time when questions are asked me and during the time when I answer those questions. I am willing to make the following statement to the above person, knowing that any statement I make may be used against me in Court and that I have an absolute right to remain silent. I declare that the following statement is made of my own free will and without anyone having promised me anything or offered out to me any hope of reward, and I make this statement without any fear of physical harm, without anyone having offered to do me any favor and without anyone promising me leniency.
      I further state that I am able to read and write the English language and have completed ......years of school.
      WITNESSES
      SIGNED /s/ Jimmy Clark
      /s/ Sgt. Clifford J. Collins
      /s/ Det. Laurence M. Reeves

        . The Sixth Circuit, 676 F.2d at 1111, indicated that the waiver question is governed by the additional prophylactic rule promulgated in Edwards v. Arizona:

        ... [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

        451 U.S. at 484-85, 101 S.Ct. at 1884-85.
      The Supreme Court has now determined that this rule should not be retroactively applied in collateral reviews of pre-Edwards final convictions. Solem v. Stumes, — U.S. -, 104 S.Ct. 1338, 1343, 79 L.Ed.2d 579 (1984). In such cases, of which this is one, the Solem Court set forth this controlling standard:
      ... Prior to Edwards, the emphasis in our cases had been on whether, as an individual, case-by-case matter, a waiver of the right to counsel had been knowing, voluntary, and intelligent. See Johnson v. Zerbst ... As we said in North Carolina v. Butler, 441 U.S. 369, 374-75 [99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286] ... (1979), relying on Johnson and treating the Fifth Amendment right to counsel as a fortiori, “[e]ven when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on ‘the particular set of facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” There we saw "no reason to discard that standard, and replace it with an inflexible per se rule.” Id., at 375 [99 S.Ct. at 1758].... The Miranda majority viewed the waiver question as controlled by Johnson, 384 U.S., at 475 [86 S.Ct. at 1628] ...
      104 S.Ct. at 1344. In sum, Miranda and Johnson, not Edwards, govern the waiver issue.

      . This Court acknowledges that its decision applying pre-Edwards law to difficult questions of interrogation and waiver has plunged it nonetheless into the Supreme Court’s tangled attempts to delineate the relationship between Edwards, Miranda, and Miranda’s pre-Edwards progeny. In Solent v. Stumes, the majority insisted that prior to Edwards, courts interpreting Miranda could justifiably believe "that a waiver of the right to counsel following its invocation could be voluntary even if police initiated the conversation." 104 S.Ct. at 1344 (emphasis added). The dissent contended that "it was well settled long before Edwards was decided that police may not interrogate a prisoner after he had asked for the assistance of a lawyer." Id. at 1348 (emphasis added). This Court’s holding is consistent with either interpretation of Miranda, for the Cleveland officers’ second interview with Clark, which gave rise to the first statement to the Willoughby officers, was no mere “conversation” but an "interrogation" expressly forbidden by Miranda and Innis.


source: Caselaw Access Project

author: WARREN, District Judge.

license: Public Domain

text:
    Larry B. JONES, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. 83-C-1628.
    United States District Court, E.D. Wisconsin.
    Jan. 22, 1985.

      David G. Dreis, Legal Action of Wisconsin, Kenosha, Wis., for plaintiff.
    Melvin K. Washington, Asst. U.S. Atty., Milwaukee, Wis., for defendant.
   ORDER

WARREN, District Judge.

On October 22, 1984, the Court ordered that this case be remanded to the Secretary of Health and Human Services pursuant to section 2 of the Social Security Disability Benefits Reform Act of 1984. Such remand was in accordance with the wishes of both parties in this matter. Subsequent to the remand, the plaintiff filed a motion for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Since the Court finds that the plaintiff is not the prevailing party in this action, within the meaning of 28 U.S.C. § 2412(d)(1)(A), the Court will deny plaintiff’s motion.

Section 2412(d)(1)(A) provides that “a court shall award to a prevailing party other than the United States ... fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award just.” Courts have held that these provisions are applicable to judicial review actions brought under the Social Security Act. See McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2nd Cir.1983); Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982); Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982). Courts have also interpreted the term “prevailing party” fairly liberally:

[T]he phrase “prevailing party” should not be limited to a victor only after entry of a final judgment following a full trial on the merits. A party may be deemed prevailing if he obtains a favorable settlement of his case, Foster v. Boorstin, 561 F.2d 340 (D.C.Cir.1977); if the plaintiff has sought a voluntary dismissal of a groundless complaint, Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir.1941); or even if he does not ultimately prevail on all issues, Bradley v. School Board of the City of Richmond, 416 U.S. 696 [94 S.Ct.2006, 40 L.Ed.2d 476] (1974).
In cases that are litigated to conclusion, a party may be deemed “prevailing” for purposes of a fee award in a civil action prior to the losing party having exhausted its final appeal. A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit”, Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).

McGill, 712 F.2d at 30-31, quoting House Report at 11, reprinted in 1980 U.S.Code Cong, and Ad.News 4953 at 4990.

However, the predominant opinion has been that the term “prevailing party” does not apply to a social security claimant whose case has been remanded to the Secretary for further evidence, as is the situation in this case. McGill, 712 F.2d at 31; Roman v. Schweiker, 559 F.Supp. 304, 305 (E.D.N.Y.1983); Miller v. Schweiker, 560 F.Supp. 838, 840 (M.D.Ala.1983); McDonald v. Schweiker, 553 F.Supp. 536, 539 (E.D.N.Y.1982). Since a party whose case is remanded has not established that he is entitled to relief, and because there is no guarantee that any form of relief will be forthcoming, it is premature to declare such party the “prevailing party,” even under a liberal interpretation of that term. Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980); Roman, 559 F.Supp. at 305.

Some courts have decided that a plaintiff can be the prevailing party if his case was a “catalyst” in effecting a review of administrative procedures or if the case was remanded to the Secretary for a de novo determination of the plaintiff’s eligibility for benefits, as the plaintiff requested. See McDonald, 558 F.Supp. at 539-540; Ceglia v. Schweiker, 566 F.Supp. 118, 121—122 (E.D.N.Y.1983). The present case was one of thousands where remand was necessitated by the Social Security Disability Benefits Reform Act of 1984, and could hardly be called a necessary “catalyst” in effecting the remand. Furthermore, the remand was ordered for the purpose of considering whether there has been medical improvement in the plaintiff’s condition. As such, the case has been remanded for-the purpose of considering additional evidence, a result which the majority of courts have held does not yield a “prevailing party.”

For the foregoing reasons, the Court DENIES plaintiff’s motion for attorneys’ fees.


author: SELYA, District Judge.

text:
    UNITED STATES of America v. Joseph VOCCOLA. UNITED STATES of America v. Pasquale MANOCCHIO.
    Nos. Cr. 84-054-015, Cr. 84-054-025.
    United States District Court, D. Rhode Island.
    Jan. 23, 1985.

      Don O. Burley, Dept, of Justice, Washington, D.C., Lincoln C. Almond, U.S. Atty., Anthony C. DiGioia, Asst. U.S. Atty., Providence, R.I., for plaintiff.
    McKenna, Greenwood & Feinstein, Kevin A. McKenna, Providence, R.I., for defendants.
   Memorandum and Order

SELYA, District Judge.

Joseph Voccola and Pasquale Manocchio were charged with assorted violations of 15 U.S.C. §§ 1984, 1988(b), and 1990c in a fifteen count information filed by the United States Attorney for the District of Rhode Island on July 25,1984. The essence of the charges (all misdemeanors) was that the defendants, as the operators of a proprietorship doing business under the name and style of “Granada Auto Sales,” knowingly and wilfully (i) reset and altered odometers so as to reduce the mileage reflected thereon and (ii) prepared and delivered false odometer statements to purchasers of motor vehicles in making the written disclosures required by, inter alia, 49 C.F.R., Part 580. Each defendant pleaded not guilty to all charges on August 6, 1984.

Discussions thereupon ensued between the government attorneys, on the one hand, and the defense team, on the second hand. On September 4, 1984, the court counselled the defendants in open court concerning the risks inherent in their dual representation by a single attorney. See United States v. Martorano, 610 F.2d 36, 39 (1st Cir.1979); United States v. Donahue, 560 F.2d 1039, 1043-44 (1st Cir.1977); United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972). Each defendant acknowledged that he understood the potential hazards of joint representation, yet wished to proceed. Thereafter, pursuant to a stipulation of facts and a nonbinding plea agreement, Fed.R.Crim.P. 11(e)(1)(B), each defendant pled guilty to the same three counts of the information (counts 3, 6, and 11). The court, after ascertaining that the guilty pleas were freely, voluntarily, and knowingly made, and that they were platformed by an adequate factual underpinning, accepted the pleas and continued the cases for sentencing. (The plea agreements contemplated that sentencing would be deferred until at least December 1, 1984.)

While each defendant entered into a separate written plea agreement, the two are quite similar. Initially, each defendant agreed that an attached stipulation of facts accurately described his engagement in recycling odometers from 1979 forward. The substance of the agreements then detailed an exchange of promises between the parties. The bargains contained in each plea agreement which are central to the issues now sub judice are illustrated by the following excerpts from Voccola’s contract:

* * * * * *
4. The defendant agrees to plead guilty to counts 3, 6, and 11 of the Information, and the government agrees (a) that at the time of sentencing, it will drop the remaining counts of the Information, and (b) that it will not prosecute the defendant for any activities set forth in the Stipulation other than the three counts to which the defendant is now agreeing to plead guilty....
* * * * * *
6. At the time of sentencing, the government will make no recommendation concerning what, if any, term of imprisonment should be imposed by the Court.
7. The government reserves the right to recommend to the Court whatever fine it deems appropriate in light of all relevant factors, including the nature of defendant’s offenses, the defendant’s cooperation, and the defendant’s economic circumstances.
8. The government reserves the right, at sentencing or at any other time, to correct any misstatements or misrepresentations made by the defendant and to answer any inquiries of the Court.
9. The government may provide any relevant information it possesses to both the Court and the Probation Service.
* * * * * *
11. The defendant states that he understands that the maximum punishment for this offense is one year imprisonment or $50,000.00, or both, per count, and that the Court will be free to impose any sentence it deems appropriate up to the maximum allowed by law.
* * * * * *
16. The defendant and his attorney both state that this agreement constitutes the entire agreement between the defendant and the government and that no other promises or inducements have been made, directly or indirectly, by any Assistant United States Attorney, any attorney from the Department of Justice, or any other agent of the United States concerning any plea to be entered in this case____

Each plea contract was signed by the prosecutors, the defendant, and defense counsel. The parties did not purport to bind the court in regard to imposition of sentence. In view of the near-identity of the plea agreements, the court will sometimes, for each in reference, allude to Voccola’s plea agreement (Agreement) only.

Following some procedural skirmishing anent the nature, scope, and contents of the presentence report (not directly material to this discussion), a sentencing hearing was conducted on January 3, 1985. After an extended allocution, the court sentenced Voccola to one year in prison on each of counts 3 and 11 (to be served concurrently); imposed a commited fine of $25,116 on count 3 as well ; and, as to count 6, sentenced him to one year in prison (consecutive to the sentences levied on counts 3 and 6), but suspended the imposition of that sentence in lieu of a three year probationary period. Manocchio received an almost consubstantial sentence. The principal difference was that the fine, as to him, was imposed on count 6, to be payable over the probationary period. Execution of sentence was stayed until February 4, 1985. All of the remaining counts of the information were dismissed.

On January 14, 1985, the defendants filed the instant joint motion to vacate the sentences imposed on January 3 and for resentencing before a new judge. The gist of the motion is the asseveration that the prosecutor, though giving lip service to his agreement to “make no recommendation concerning what, if any, term of imprisonment should be imposed,” Agreement at II 6, undercut the bargain by “clearly, if obliquely, indicating] that [the government] felt a jail sentence was appropriate.” Defendants’ Memorandum at 6. The defendants had interposed no objection on this ground to the prosecuting attorney’s summation at the time of sentencing. A hearing on the motion was commenced on January 18,1985 and completed on January 22. Decision was reserved. As the gravamen of the motion is that the sentences were for this reason handed down in an illegal manner, the motion appears to be timely. Fed.R.Crim.P. 35(a).

The yardstick by which the prosecutor’s conduct must be measured is well defined. The Supreme Court has explicitly cautioned that principles of fundamental fairness must attend the implementation of a plea agreement:

[T]his phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971).

The court’s inquiry is one of objective fact, not of subjective intent: whether the plea agreement has been violated vel non. “That the breach of agreement was inadvertent does not lessen its impact.” Id. And, it is irrelevant to the inquiry whether or not the sentencing judge was influenced in any degree by the prosecutor’s comments. Id. at 262-63, 92 S.Ct. at 498-99; United States v. Brown, 500 F.2d 375, 377-78 (4th Cir.1974). It is likewise immaterial that, at the sentencing, the defendants were offered the opportunity to withdraw their guilty pleas, yet eschewed that course. If the prosecutor has strayed from the confines of the plea agreement, the defendants may well be entitled to specific performance of the bargain which they had struck, that is, resentencing before a different judge (but see note 2, ante) in a proceeding cleansed of the interdicted prosecutorial misconduct. Santobello, 404 U.S. at 263, 92 S.Ct. at 499; United States v. Corsentino, 685 F.2d 48, 52 & n. 2 (2d Cir.1982); United States v. Block, 660 F.2d 1086, 1090 (5th Cir.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1753, 72 L.Ed.2d 164 (1982); United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir.1978). And, Santobello and its progeny proscribe not only explicit repudiation of the government’s assurances, but must in the interests of fairness be read to forbid end-runs around them.

The defendants place primary reliance on United States v. Brown, supra, a decision by a divided panel of the Fourth Circuit. But, Brown is plainly distinguishable. There, the prosecution had agreed to make a particular recommendation — and did so; but the government immediately took away with the left hand what it had given with the right. After parroting the stipulated recommendation, the prosecutor informed the court that he had “some problems with [it].” Id., 500 F.2d at 377. The Brown majority noted that the defendant had a reasonable expectancy that a prearranged recommendation would be expressed to the sentencing judge “with some degree of advocacy,” id., and that the standard was not met by what it termed the prosecutor’s “halfheartedness.” Id.

Unlike Brown, however, the case at bar was not one involving an affirmative suggestion. The government, as to incarceration, had agreed only to “make no recommendation concerning what, if any, term of imprisonment should be imposed.” Agreement at ¶ 6. The prosecutor so noted, and did not at any time waver from this position. The Agreement was plain: apart from silence as to “what, if any, term of imprisonment” was appropriate, the government retained a free hand. In contradistinction to Corsentino, 685 F.2d at 51, there was no “substantial ambiguity in the prosecutor’s promise.” The history of the plea negotiations between the government and the defendants, which was fully examined by the court immediately prior to the January 3 sentencings, bears out that all parties understood the dimensions of the plea agreements.

Under virtually all circumstances, the government has the duty to disclose to the court pertinent factual information in its possession. Block, 660 F.2d at 1091-92 & n. 7; United States v. Garcia, 544 F.2d 681, 685 n. 2 (3d Cir.1976). And in this case, the prosecutor’s leeway was considerably more broad: the government had expressly reserved the right to correct misstatements or misrepresentations made by or on behalf of the defendants, Agreement at H 8, and to “provide any relevant information it possesses” to the court. Id. at ¶ 9. The government had carved out a similar reservation as to revelation of its knowledge to the probation department, id., and the prosecutor said nothing of consequence which had not theretofore been included in the “prosecution version” of the offenses contained in the presentence report.

Most important, the government was at liberty, under the plea agreements at bar, “to recommend to the court whatever fine it deems appropriate.” Id. at ¶! 7. The very comments about which the defendants most bitterly complain were made in the course of the prosecutor’s exhortation that the court levy maximal fines ($50,000 per defendant per count). Taken in context, the prosecutor’s speech was a seamless web spun of the enduring thread of harm to the collective pocketbooks of the faceless citizens who had been duped by the defendants’ activities. It built to the logical climax that:

In any event, your Honor, the damage cost to consumers in this case by the defendants’ activities is staggering.
The government believes that the fine should be commensurate with the consumer damage that has been caused. The maximum fine in this case for three counts of odometer violations is $150,-000.00. The government believes that the defendants’ financial worth merits a fine of the maximum in this case, your Honor.

Those remarks were entirely appropriate for the court’s consideration in assessing the amounts of the fines; and the defendants, by their agreements, opened the door wide for just such an analysis. And, the stipulation of fact belies the spavined argument that all comment should have been limited to the three particular instances which formed the basis for counts 3, 6, and 11.

Brown is, on these facts, not controlling. Rather, the case at bar is more akin to United States v. Avery, 621 F.2d 214 (5th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1396, 67 L.Ed.2d 367 (1981), a case where the government was held not to have transgressed the terms of an agreement to make no recommendation at the time of sentencing. The Fifth Circuit, under a plea agreement which appears, from the government’s viewpoint, to have been considerably more constrictive than that entered into by these defendants, refused to construe a “no recommendation” promise “to obligate the government to withold [sic] the disclosure of pertinent information on the defendant’s background and character from the sentencing judge.” Id. at 216. See also, to like effect, United States v. Dickson, 712 F.2d 952, 954-55 (5th Cir.1983); Block, supra.

A second case very much in point is United States v. Diamond, 706 F.2d 105 (2d Cir.1983) (per curiam). In Diamond, the plea agreement called upon the prosecution to refrain from “recommend[ing] any specific sentence to the sentencing judge,” but left the government at liberty to inform the judge of “the nature and extent of [the defendant’s] activities” and “all other information in its possession relevant to sentence.” Id. at 106. The prosecutor presented the judge with a disputatious “sentencing memorandum” which portrayed the defendant in the blackest of terms (e.g., Diamond “teamed up with others ... to commit an enormous fraud. Their lies cost innocent victims over $1,000,000 ... and tore deeply into the moral fabric of our society.”). The Second Circuit found that this invective worked no abrogation of the plea agreement, as the statements were “relevant” to the sentencing decision and within the scope of the prosecutor’s reservation. Id.

In the instant case, the prosecutor’s acknowledgement that the government would refrain from taking a position as to what, if any, term of imprisonment should ensue was admittedly brief, indeed, perfunctory. But, once the government agrees to stand mute as to a particular aspect of a prospective sentence, what more can it legitimately say on the topic? Whatever “degree of advocacy,” Brown, 500 F.2d at 377, might rightfully attach to a preagreed affirmative recommendation, there is no effective way to “advocate” an agreement to make no recommendation. And, having stated the government’s position, the prosecuting attorney exhibited no “halfheartedness,” id., nor did he make any “equivocal comments” concerning immurement. See United States v. Tursi, 576 F.2d 396, 399 (1st Cir.1978). He did not attempt to do by indirection what he was barred from doing directly. The argument which he proffered was entirely appropriate in respect to the government’s view on the question of fines and in respect to its duty to the court (expressly preserved by the contracts with these defendants) to supply “relevant information.” Agreement at 119. More to the point, the oration was wholly consistent with the bargain which the parties had struck. Here, as in Diamond, “(t)he adverse information the prosecutor reserved the right to present inevitably carried with it an implied argument in favor of a significant sentence.” 706 F.2d at 106. Given the plea agreements, the defendants should have expected as much.

“[P]lea bargaining, for better or worse, is an integral and indispensable part of our legal system.” Block, 660 F.2d at 1092. When the prosecution accedes to a plea agreement, it enters into a solemn covenant with the accused. It is right and fair that the prosecution be held both to the letter and the spirit of the pact. Yet, the government does not, simply by making an agreement to stand mute as to a single facet of the possible sentence, forfeit all right to participate in the presentence investigation or abdicate all responsibility to the court to furnish relevant information. And, the government’s position is strengthened measurably where (as here) it reserves the right to paint the total picture for the court.

In this case, the prosecution limited its options at the sentencing hearing, but it did not foreclose itself from all comment on all subjects. The United States had both the right and the responsibility to limn the facts relevant to the underlying scheme, and to do so vigorously. Fundamental fairness demands that the defendants receive the benefit of their bargain; it does not require that the government be held to an overall vow of silence which it never undertook. The plea agreements, fairly read, did not reduce the United States to a role as a handmaiden of the defendants, nor so emasculate the government’s prerogatives as to render the prosecutor for purposes of the sentencing hearing the most impotent of eunuchs.

The defendants’ animus is misdirected. They pled guilty to crimes which this court regards as both predatory and reprehensible. The prosecution refrained, as it had covenanted to do, from directly or indirectly hoisting in the courtroom the black-and-white striped flag of prospective incarceration. The defendants’ complaint, despite their disclaimers, is not with what was said by the government’s attorney: it is with the judgment of this court. As the record of the sentencing hearing amply reflects, the court acted in this instance not because of what the prosecutor urged or hinted, but despite the absence of any recommendation or guidance from the Justice Department on this score. And, if one probes deeper, the authentic source of the defendants’ lamentations is their own scurrilous and illegal conduct. They are the authors of their own misfortune.

The record reveals no broken promises. The government did not transgress the plea agreements. The sentencing hearing was fair and aboveboard; the defendants received all of the process which was due. Their joint motion to vacate the sentence is, therefore, DENIED. The defendants, and each of them, as previously mandated, shall report and surrender on February 4, 1985 at the federal penal facility at Allenwood, Pennsylvania to begin service of their respective sentences.

It is so ordered.

      . The amount of the fine was computed by the court by taking the before and after odometer readings from a single automobile with which the defendants had by their own admission toyed, and calculating the fine to equal 51.00 for each mile that the odometer had been rolled back.

      . At the outset of the January 22 session, the defendants amended their motion by deleting their request to be resentenced by a different judge. Though the court need not squarely confront this twist in view of its holding that the original sentences should stand, see text post, it is well to observe that the modified request, if honored, would create a bizarre sort of anomaly.

      . The court notes, however, that defense counsel apparently failed seasonably to give the special notice required by the plea agreement:
      Counsel for the defendant ... has agreed that, if any statements are made by an Assistant United States Attorney, any attorney from the Department of Justice, or any other agent of the United States at any time in the future which are at variance with the contents of this agreement, he will notify the United States Attorney in writing of the details thereof within two days after the statement is made. Agreement at ¶ 17.
      But, inasmuch as the court is able to resolve the motion on substantive grounds, see text post, the effect (if any) of a defense attorney’s failure to abide by such a limitation may be left to another day.

      . Though not raised by the United States, it seems an open question as to whether this portion of the Santobello rule must be reexamined in light of the Court’s recent application of the "harmless error” principle to criminal cases involving ineffective assistance of counsel. See Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674 (1984). In the case at bar, the prosecutor’s remarks at the sentencing hearing were not, in the court’s judgment, an attempt to subvert the plea agreement. In any event, they had no catalytic effect on the sentences actually imposed. The court can state with absolute assurance that, if the prosecutor went too far, the error was harmless beyond a reasonable doubt in that it did not actually prejudice the accuseds. But, because the prosecutor did not venture into forbidden terrain, see text post, the court need not further pursue this point.

      . To the extent that the defendants, at oral argument on this motion, attempted to resuscitate contentions previously made and rejected in their motions to strike portions of the presentence report, see United States v. Voccola, 600 F.Supp. 1534 (D.R.I.1985) (ore tenus bench decision denying motions to strike), the court will not repastinate that tired ground. The January 3 rulings are, in those respects, the law of the case. See Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983); United States v. DeJesus, 752 F.2d 640, 642-43 (1st Cir.1985).

      . This case does not raise the question of whether an agreement between the government and an accused providing for the withholding of information germane to sentencing from the court is void as contravening public policy. Cf. 18 U.S.C. § 3577 ("no limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.’’); Fed.R. Crim.P. 32(c)(2)(D).

      . The very fact that the prosecutor urged the court to impose such large monetary penalties in and of itself undermines the defendants’ present contention. When the argument was made by the prosecuting attorney, the court drew the most logical inference: that the government, having debarred itself from suggesting jail time, assumed it was unlikely that prison sentences would eventuate, and was attempting to galvanize the court toward a hefty financial punishment as an alternate Procrustean bed commensurate with the character and severity of the offenses.

        . The practice of the government agreeing to stand mute as part of a plea agreement has been frequently — and justifiably — excoriated. E.g., Block, 660 F.2d at 1092. The interests of the public are often disserved by such timorousness. But, in the final analysis, the responsibility for the imposition of sentence rests where it should — squarely on the shoulders of the court — whether or not the district attorney is forthcoming.


author: DAN M. RUSSELL, District Judge.

text:
    Evan HARRIS, By and Through Sharon HARRIS, Administratrix, Plaintiff, v. JONES COUNTY, MISSISSIPPI; Morris Brown, Gene Whitley, James Rasberry, Preston B. Tanner, L.S. Bynum, Supervisors of Jones County, Mississippi; Jones County Sheriff Department; George Chancellor, Sheriff of Jones County; J.J. Roberts, A Jones County Deputy, Defendants.
    Civ. A. No. H80-0104(R).
    United States District Court, S.D. Mississippi, Hattiesburg Division.
    Jan. 24, 1985.

      William E. Ready, Jr., George Follett, Ready & Associates, Meridian, Miss., for plaintiffs.
    . A.H. McRae, Jr., Anthony L. Thaxton, Sumrall & Thaxton, Laurel, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

DAN M. RUSSELL, District Judge.

This cause is presently before the Court upon the plaintiff’s motion for attorney’s fees. It is the plaintiff’s contention that as prevailing party and pursuant to 42 U.S.C. § 1988 (1982) attorney’s fees are warranted and due. The plaintiff requests that the Court award $56,349.78 in attorney’s fees and $3,862.12 in expenses for prosecution of this § 1983 action. The defendant on the other hand contends that attorney’s fees and expenses should be denied. The defendant asserts that the plaintiff was not the prevailing party and further denies that the conditions for and treatment of inmates in the Jones County Jail have been improved as a result of the settlement of this case. The Court for the reasons stated below agrees with the defendants’ position and denies the plaintiff’s motion for attorney’s fees.

I. THE FACTS

Since the Court was never given the opportunity to hear the entire case, it will glean from the complaint, answer, requests for admission, interrogatories, deposition and pretrial order what facts appear without dispute.

This was an action for declaratory relief and monetary damages brought by Evan Harris, a former detainee in the Jones County, Mississippi Jail. Sharon Harris, widow of Evan Harris, was substituted as the representative plaintiff following the death of Evan Harris on or about August 19, 1984. The plaintiff sought relief pursuant to 42 U.S.C. § 1983 and other federal laws and Mississippi statutory and common law against Jones County, the Jones County Board of Supervisors, the Jones County Sheriff, a Jones County Jailor, the Mississippi State Highway Safety Patrol and a Highway Patrol Officer, C.R. Landrum. The Highway Safety Patrol and Officer Landrum were dismissed from the suit on September 10, 1980 and August 12, 1982, respectively.

The plaintiff’s claim was based upon the alleged false arrest, the alleged failure by the defendant to provide for the safety and security of the plaintiff, the alleged failure by the defendants to provide adequate medical care, and the alleged failure to provide for the safety and security of the plaintiff while in custody and while confined in the Jones County Jail. The plaintiff sought declaratory relief; that the acts and omissions by the defendants violated the plaintiff's rights to due process and to be free from cruel and unusual punishment as guaranteed by the eighth, fourteenth and other amendments to the United States Constitution. In addition, the plaintiff sought a declaratory judgment that these alleged acts and omissions violated his rights under Mississippi law. The plaintiff also pursued compensatory and punitive damages as well as injunctive relief.

Specifically, the plaintiff alleged that while the defendants were acting under color of the authority of the State of Mississippi as members of the Jones County Sheriff’s Department, they subjected the plaintiff to the deprivation of his rights and privileges secured and protected by the Constitution and laws of the United States, namely, the Constitutional right not to be deprived of his liberty without due process of law. The plaintiff thus brought this action to recover all damages which he claims he was entitled to as a result of the alleged violation of certain guaranteed Constitutional rights, including all damages from the alleged deliberate wrongful treatment and resulting subsequent injuries received, and all damages allowed by both the laws of the United States and of the State of Mississippi.

Between the hours of 6:00 a.m. and 7:00 a.m. on the morning of January 30, 1980, plaintiff Harris’ car was noticed parked off 1-59 in Laurel, Mississippi by Officer C.R. Landrum of the Mississippi Highway Patrol. After observing Evan Harris’ physical condition, Officer Landrum transported the plaintiff to the Jones County Jail where he was subsequently booked for public drunkenness. Evan Harris brought suit alleging that he was not drunk but was physically ill and had suffered a stroke. It was thus the plaintiff’s contention that he was deprived of proper medical attention as well as his liberty.

The defendants contended that at about 6:30 a.m., on January 30,1980, the plaintiff was brought to Jones County Jail by Officer C.R. Landrum of the Mississippi Highway Safety Patrol and booked for public drunkenness. The defendants further contended that after the plaintiff was booked, the defendant, J.J. Roberts, the jailer and radio dispatcher asked the plaintiff questions regarding his health, and asked if he wished to use the telephone or wanted someone to make a call for him. To this the defendants alleged that the plaintiff replied that he was not sick, was in good health and that he did not want to make a call. The defendants also alleged that the plaintiff appeared to be in good health and not suffering from any health problem of any kind.

The defendants’ next contentions were as follows: Officer Landrum placed the plaintiff in a downstairs cell next to the radio room. Officer Landrum then left the Jones County Jail for a short while and at approximately 7:30 a.m. he came back to the Jones County Jail and brought the plaintiff before Judge J.C. Odom in the radio room. After some conversation between the plaintiff, Officer Landrum and Judge Odom, Judge Odom released the plaintiff on his own recognizance. Officer Landrum and the plaintiff then tried to secure transportation to Meridian for the plaintiff but failed. The plaintiff was picked up by some friends in the late afternoon. The defendants also asserted that the plaintiff was at the jail for only one hour and at that time was not under their control but was under the control of Officer Landrum who was dismissed from the suit. Finally, the defendants maintained that they did not violate any of the plaintiff’s constitutional rights and that they acted in good faith toward the plaintiff.

The following are facts which were established by the pleadings, by stipulation or by admissions of counsel:

(a) The charges against Mr. Harris were “dropped” with no trial being held.

(b) Defendant J.J. Roberts was the jailer of Jones County Jail at the time of the booking of Mr. Harris.

(c) Mr. Harris was booked at approximately 6:30 a.m.

(d) At the time of Mr. Harris’ arrest, acceptance and detention, there was no resolution, order, promulgation of or plans for standards officially passed or enforced by the Jones County Board of Supervisors or the sheriff’s office, directing the enforcement of or staff training and supervision in rules or standards to determine the acceptance of persons accused of law violations or rules of legally or constitutionally correct observation or treatment of Jones County Jail inmates or detainees.

(e) The jailer, defendant J.J. Roberts, was not required to, requested to, nor did he perform anything other than personal perceptive test to determine if Mr. Harris was intoxicated when he was placed in the Jones County Jail for public drunk.

(f) That trusties were utilized for observing inmates’ and detainees’ physical and safety conditions, taking messages to and from inmates and jailers and supervision of inmates and detainees’ conduct and communication.

(g) That on January 20, 1980, the sheriff’s department did not have any rules or regulations concerning required testing of Mr. Harris to determine if he was in fact actually intoxicated or not.

II. THE LAW

The United States Supreme Court has held that the legislative history of 42 U.S.C. § 1988 indicates that in some circumstances a party may be labelled as a prevailing party without having obtained a favorable final judgment following a full trial on the merits. Hanrahan v. Hampton, 446 U.S. 754, 756-7, 100 S.Ct. 1987, 1988-89, 64 L.Ed.2d 670 (1980). In Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980), the Court went one step further and held that the fact that a party prevails through settlement rather than litigation does not weaken a claim for attorney’s fees. Id. at 129, 100 S.Ct. at 2574. The Court has recently stated that when efforts have succeeded on some issues but not on others, “[t]he result is what matters.” Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). The test for determination of prevailing party status, regardless whether the party has “prevailed” through full trial on the merits or by way of settlement; has not been agreed upon in the federal courts. Hennigan v. Ouachita Parish School Board, 749 F.2d 1148 (5th Cir.1985). However, the Hennigan decision has articulated the standard to be applied in this circuit for determination of whether a plaintiff whose efforts did not result in judgment in his favor has succeeded sufficiently to be a prevailing party. The Fifth Circuit in Hennigan has provided a two-part test along with what this Court will label as a dispositive condition that the suit have colorable merit; a reasonable, likelihood of success on the merits.

The first element of the two-part test that must be established by a party attempting to claim prevailing party status is “whether, as a practical matter, the plaintiffs goal was achieved.” Hennigan, 749 F.2d at 1152. This is determined by the “central-issue” test; “the plaintiff need succeed only on any significant issue in the litigation which achieves some of the benefit he sought in bringing suit.” Id. Citing Hensley v. Eckerkart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-9 (1st Cir.1978). See also Posada v. Lamb County, Texas, 716 F.2d 1066, 1071 n. 6 (5th Cir.1983).

The second element of the analysis is whether the plaintiff can “show that the lawsuit caused the defendant to act, and thus allowed the plaintiff to achieve his goal. To demonstrate this causal connection, the plaintiff must demonstrate that his suit was ‘a substantial factor or a significant catalyst in motivating the defendants to end their unconstitutional behavior’ ” Hennigan, 749 F.2d at 1152 (citations omitted). When the plaintiff has met both of the above elements, that he has succeeded on the central issue of the litigation, and he has caused the defendant to act, he has then made out a prima facie case that he is a prevailing party and entitled to attorney’s fees. Id.

The dispositive condition which this Court spoke of earlier provides that:

a plaintiff who brings an action that has no colorable, or even reasonable, likelihood of success on the merits is not entitled to recover attorney’s fees if the defendant simply complies with the plaintiff’s demands and moots the case for reasons that have nothing to do with the potential merit of the suit.

Hennigan, 749 F.2d at 1152. Apparently this condition is applicable in conjunction with the two-part analysis above.

III. APPLICATION: DETERMINATION OF PREVAILING PARTY STATUS

Was Evan Harris, by and through Sharon Harris as Administratrix of Evan Harris’ estate, the prevailing party? As stated above, the defendants and the plaintiff settled this case on the day of trial. The Agreed Order of Dismissal signed by all of the parties’ attorneys orders that:

1. The defendants pay unto the plaintiff the sum of $7,500.00 in settlement and- satisfaction of plaintiff’s claims for the wrongs and injuries to Evan Harris and each defendant is and shall be jointly and severally liable for payment of said sum.

2. Plaintiff’s claims for declaratory and injunctive relief are, pursuant to the agreement of all parties, dismissed, as moot.

3. Defendants shall pay all costs of Court herein.

The first element of our analysis is whether the plaintiff’s goal was achieved; whether the plaintiff succeeded on any significant issue in the litigation which achieved some of the benefit he sought in bringing the suit. As the Agreed Order of Dismissal provides the plaintiff is to receive $7,500.00 in settlement and satisfaction of his claims for wrongs and injuries sustained by him. The Agreed Order also dismisses as moot the plaintiff’s claims for declaratory and injunctive relief.

The plaintiff brought suit seeking declaratory relief and monetary damages for injuries allegedly sustained while incarcerated in the Jones County Jail. The suit was brought pursuant to 42 U.S.C. § 1983, other federal laws and Mississippi statutory and common law. The defendants did agree to pay the plaintiff $7,500.00 in settlement and satisfaction for the wrongs and injuries sustained. Certainly the plaintiff’s suit was brought with the hope of recovering some monetary damages. Furthermore, the damages sustained by the plaintiff would have been a significant issue at trial. Thus any monetary recovery by the plaintiff for wrongs and injuries would satisfy the first element of our analysis. Therefore, the Court is of the opinion that the plaintiff has succeeded on a significant issue in the litigation and he has achieved some of the benefit he sought in bringing the suit.

The second element, a demonstration that the suit was a substantial factor or significant catalyst in motivating the defendants to end their unconstitutional behavior, has not been met. The Fifth Circuit beacons that an inquiry into this aspect of the case is “an intensely factual, pragmatic one.” Posada, supra, 716 F.2d at 1072. While the plaintiff does not have to prove his efforts were the sole reason for the defendant’s rectifying conduct, Id., he must show that the suit was “if not the sole reason for his success, [then it was] at least a major factor in bringing it about. A civil rights plaintiff may not collect attorney’s fees for demanding that a state officer do what he would have done in any case.” Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981); Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir.1982); Posada, supra, 716 F.2d at 1072.

The case sub judice does not present the intense pragmatic factual inquiry the Fifth Circuit imagined. There has not been any proof submitted to the Court in any form which indicates that the defendants were guilty of any unconstitutional behavior of any type. Nor is there any proof to show that the defendants have made any changes in their behavior because of this lawsuit. In this motion the only mention made of this particular element is made by the defendants in their outright denial that the conditions of the Jones County Jail have not been improved as a result of this suit. Further, on what grounds the declaratory and injunctive relief sought were mooted were not presented to the Court. The mere fact that the defendants signed an agreed order ordering them to pay unto the plaintiff $7,500.00 for wrongs and injuries does not constitute an admission of unconstitutional behavior now rectified. Thus part-two of the test has not been met, the plaintiff has not made out a prima facie case that he is prevailing party, and the plaintiff is not as a matter of law entitled to attorney’s fees.

Finally, this Court believes that even had the plaintiff somehow met the above conditions to recovery of attorney’s fees, the dispositive condition outlined earlier herein would have barred such an award. To repeat its directives:

a plaintiff who brings an action that has no colorable, or even reasonable, likelihood of success on the merits is not entitled to recover attorney’s fees if the defendant simply complies with the plaintiff’s demands and moots the case for reasons that have nothing to do with the potential merits of the suit.

Hennigan, 749 F.2d at 1152.

One could assert that this Court lacks the requisite knowledge of the facts of this case to meaningfully decide whether the claims presented by the plaintiff are of such constitutional magnitude as to be labeled colorable or groundless. However, this Court has had sufficient exposure to the facts and law of this particular case to determine whether, if the plaintiff had continued to press their claims, their action could be considered as lacking colorable merit, with no reasonable likelihood of success on the merits. Compare Nadeau, supra, 581 F.2d at 281.

The remaining defendants were Jones County, the supervisors of Jones County, the Jones County Sheriff’s Department, George Chancellor, Sheriff of Jones County, and J.J. Roberts, the Jones County Deputy who was jailor at the time. The arresting patrolman was granted his motion for summary judgment and let out of the action by United States District Judge William Harold Cox. The law as to county/municipality liability under § 1983 action is that a county or municipality or local government is liable under § 1983 only when the government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to present official policy, cause injury to a person. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). See Bennett v. City of Slidell, 728 F.2d 762, 766 (5th Cir.1984); Languirand v. Hayden, 717 F.2d 220, 223 (5th Cir.1983).

“[T]he complainant must [A] identify the policy, [B] connect the policy to the city itself, and [C] show that the particular injury was incurred because of the execution of the policy.” Bennett, 728 F.2d at 767. A policy may be the result of a council’s direct orders, or conduct in actual practice which constitutes custom and usage. In describing “custom or usage”, the Supreme Court in Adickes v. S.H. Kress and Co., 398 U.S. 144, 173-174, 90 S.Ct. 1598, 1616-17, 26 L.Ed.2d 142 (1970), as cited in Bennett, 728 F.2d at 768, used such phrases as “persistent and widespread ... practices”, “systematic maladministration of the laws”, practices that are “permanent and well settled”, and “deeply embedded traditional ways of carrying out ... policy.” Id. The Court believes this was an onerous standard which the plaintiff would not have been able to prove with the required evidentiary burden of success, a preponderance of the evidence. Randle v. Indianola Municipal Separate School District, 373 F.Supp. 766, 770 (N.D.Miss.1974).

The plaintiff’s claims against the Jones County Sheriff’s Department and George Chancellor, Sheriff, were also questionable. A sheriff cannot be held liable under § 1983 for the unlawful actions of his deputies on the basis of vicarious liability. Baskin v. Parker, 602 F.2d 1205 (5th Cir.1979). A plaintiff can recover damages from the sheriff if he actively participated in the actions causing the deprivation of the plaintiff’s constitutional rights, or affirmatively adopted policies which were wrongful or illegal and which caused the constitutional deprivation. Id. at 1208; Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir.1980). The plaintiff must establish a causal connection between acts of the sheriff and the resultant constitutional deprivation. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir.1981). The failure to adopt policies to prevent constitutional violations does not serve as an adequate basis for liability under § 1983. Wanger, 621 F.2d at 680. Again, the Court believes this causal connection could not have been established keeping the required evidentiary burdens in mind. Thus, the only remaining viable defendant would be J.J. Roberts, the Jones County deputy and jailer.

The plaintiff also made eighth amendment allegations against the defendants. The plaintiff could not recover on the basis of that amendment. See Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir.1984). The Supreme Court has held that the eighth amendment protects only those who have been convicted of a crime. Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408, 51 L.Ed.2d 711 (1977). The amendment does not protect pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979). As stated by the Court in Ingraham:

Eight Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions ... [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.

Ingraham, supra, 430 U.S. at 671-2, n. 40, 97 S.Ct. at 1412-13, n. 40. (emphasis added). Since there had not been a formal adjudication of guilt at the time of Evan Harris’ incarceration he cannot state a cause of action under the eighth amendment. City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1984).

The Court does not purport to hold the above discussion as findings of fact and conclusions of law. The Court does conclude that the plaintiff’s action lacked a reasonable, likelihood of success on the merits. Based on the foregoing, that the plaintiff failed to meet the requisite two-part Hennigan test, and the “dispositive condition” of colorable, reasonable likelihood of success on the merits, the Court is of the opinion that the plaintiff lacks prevailing party status within the standards enunciated by the Fifth Circuit and that the plaintiffs motion for attorney’s fees and expenses should be denied.

      . 42 U.S.C. § 1988 provides in pertinent part: In any action or proceeding to enforce a provision of section 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.