Arnett v. Lewis (870 F. Supp. 1514, 1994)

MEMORANDUM OF DECISION AND ORDER

McNAMEE, District Judge.

James Alan Arnett (hereinafter “Petitioner”) commenced this federal habeas proceeding in November, 1983, and subsequently raised additional allegations of constitutional error in an amended petition filed on November 28, 1989. The Court previously determined the merits and/or procedural status of all but one of Petitioner’s claims. See Arnett v. Ricketts, 665 F.Supp. 1437 (D.Ariz.1987) [file doc. no. 80]; Order of 4/1/94 [file doc. no. 174],

In his remaining claim Petitioner alleges that he provided a confession only after his will was overborne due to coercive police conduct, the conditions of his confinement in the Richmond City Jail in Richmond, California, and the inordinate delay he experienced before being brought before a judicial officer. The Court determined that Petitioner was entitled to an evidentiary hearing with respect to this claim.

On September 15, 1993, the Court held a status conference for the purpose of determining a date certain for the evidentiary hearing. In addition, the Court and the parties discussed several procedural difficulties related to the hearing and final resolution of the petition. At the conclusion of the status conference, the Court admitted into evidence the videotaped depositions of William Veale, Diane Needham, Bruce Weiss, Janice Rhodes, Andrew Schwartz, and George Neal Newton. In addition, the Court admitted all unopposed records relating to Petitioner’s arrest offered as attachments to the transcript of Mr. Newton’s deposition. Specifically, the Court admitted attachments 7, 8, 10, 13, 14, 15, and 16. The Court also informed the parties that it would further review the opposed attachments and determine whether they would be admitted over Respondents’ objections.

On September 28, 1993, the Court overruled Respondents’ hearsay objections and determined that the other attachments were admissible as “public records” pursuant to Rule 803(8) of the Federal Rules of Evidence. See Order of 9/28/93 [file doc. no. 155 {incorporated herein by reference} ]. In addition, the Court reviewed its jurisdictional powers pursuant to Rule 45(c)(3)(B)(iii) of the Federal Rules of Civil Procedure to determine whether it could and would issue subpoenas to out-of-state witnesses whose presence and testimony was sought primarily for the purpose of establishing the conditions under which Petitioner was confined.

Upon review, the Court found that although the testimony regarding jail conditions was important, Petitioner failed to demonstrate a “substantial need” for the physical presence of witnesses in Phoenix. See Order of 9/28/93 at pg. 10. Nor did the Court find that Petitioner would incur “undue hardship” if portions of the evidentiary hearing were conducted based upon videotaped depositions. In concluding that it would authorize Petitioner to subpoena witnesses in California for the purpose of conducting videotaped depositions the Court made the following findings:

The Court finds that videotaped depositions of Petitioner’s potential witnesses will ensure that he receives a full and fair opportunity to adjudicate his claim while minimizing unnecessary expense to the taxpayers. Moreover, conducting videotaped depositions may eliminate the need for unnecessary and duplicative discovery which the parties indicated may be required if witnesses were required to appear before this Court in person.

Order of 9/28/93 at pg. 11.

Beginning on November 16, 1993, the Court conducted a five-day evidentiary hearing. At the hearing the Court reviewed and/or considered the videotaped testimony of the following witnesses: Andrew Schwartz; Diane Needham; William Veale; Janice Rhodes; Bruce Weiss; George Neal Newton; Billy Sewell; Weston Kevin Sock-well; William Faulkner; Mary Caruthers; Moses Madison York; Emma Brausch; and Thomas Hernandez. In addition, the following witnesses testified in person: Otto L. Bendheim, M.D.; Richard J. Ofshe, Ph.D.; William McKinley, M.D.; Lieutenant Robert Parrick, Richmond City Police Department; and Petitioner. For convenience the Court will divide the findings of fact into three categories: (1) the various arrests which accounted for Petitioner’s detention in the Richmond City Jail; (2) the conditions under which Petitioner was confined and his physical health; and (3) police conduct prior to and at the time of Petitioner’s confession. It should be noted that although a large number of attachments detail when Petitioner may have appeared before a judicial officer and various judicial proceedings occurring in March of 1976, the events up to the point at which Petitioner confessed on February 25, 1976 are most relevant to the resolution of the pending claim.

FOREWORD

This is a case burdened with ambiguities and enigmas. Although the Court has endeavored to resolve each of them in turn, many of the mysteries can never be resolved definitively or conclusively.

In this case, the Court is confronted with a street-wise defendant, James Arnett, who upon being arrested conceals his identity and asserts his Miranda rights. The day after his initial arrest Petitioner became aware that his identity was known and that he was suspected of murder in another state. Despite repeated overtures to make a statement, Petitioner repeatedly invoked his right to remain silent for approximately seven days. On the seventh day, however, and according to Respondents for no apparent reason, Arnett summons the police and provides the police with a comprehensive tape recorded statement.

In attempting to determine why Petitioner suddenly confessed after one week of silence, the Court must also consider the effect of the somewhat questionable conduct by the police who clearly capitalized upon ambiguities within the law. For example, although Ar-nett was arrested on multiple charges, no evidence was presented regarding why Petitioner was not taken before a judicial officer at any time prior to his confession. Although Respondents rely heavily upon the “parole-hold”, which technically legalized Petitioner’s detention, no explanation was provided or appears in the record as to why Petitioner’s arraignment was initially delayed, yet occurred within the time frames dictated by state statutes once he confessed. Also troubling is the fact that the primary officer involved in the case is a California burglary detective who continuously interacts with the defendant several times per day over the course of a week yet paradoxically asserts he has no interest in the case once it became known that Petitioner was suspected of murder. It is beyond dispute, however, that the officer’s interest had little to do with the burglaries which he himself stated were minor in nature and would not have warranted constant attention for over a week. Similarly puzzling are the actions of the Arizona authorities who, after questioning Petitioner and apparently having enough circumstantial evidence to obtain a warrant, fail to do so until five days pass and Petitioner admits his involvement in the offense.

The issue is whether Arnett’s will was overborne in the sense that at the time he made the confession he no longer had the ability or capacity to rationally determine his own destiny. Both now and before trial the standard of proof applicable to resolution of this inquiry has been governed by the minimal criterion of proof by a preponderance of the evidence. The burden of satisfying this standard has, however, shifted to Petitioner.

Based upon the record and the testimony presented it is clear that despite the fact the state prevailed in the motions prior to trial and on appeal, the new evidence has shifted the balance slightly and has caused the scale to dip in favor of Petitioner and a finding that the confession was involuntary and harmful.

FINDINGS OF FACT

To the extent that any Conclusions of Law are deemed to be Findings of Fact, they are hereby incorporated into these Findings of Fact.

I. THE ARRESTS:

In determining when Petitioner was arrested and upon what basis he was detained in the Richmond City Jail the Court relied, to a large extent, upon microfilm copies of arrest reports and jail records previously admitted as attachments to the deposition of George Neal Newton and referenced and discussed by various other witnesses. In addition, the Court also considered other judicial records pertaining to Petitioner submitted as attachments to the depositions of Janice Rhodes, Bruce Weiss, William Veale, and Diane Needham. After consideration of this evidence the Court makes the following findings of fact:

1. George Neal Newton was formerly a Richmond City Police Officer for a period of over 20 years. Although Mr. Newton was not the jailer in 1976, he did work in the jail within a reasonable time both prior to and following Petitioner’s incarceration. His tenure as a jailer provided him with the opportunity to acquire knowledge of the general operation and booking procedures utilized in the Richmond City Jail. After reviewing his videotaped testimony, the Court finds Mr. Newton a knowledgeable and credible witness.

2. The arrest reports and other documents submitted as attachments to Mr. Newton’s deposition and previously admitted into evidence by the Court are the most complete and accurate version of these documents currently available. Further, the Court finds that the attachments are credible evidence of the jurisdictional basis and time frame relating to Petitioner’s detention in the Richmond City Jail. See (Deposition of George Neal Newton, at pgs. 94-96 (hereinafter “Newton, at pg. -”)).

3. Petitioner, alias James Allen Clay, was first arrested and booked into the Richmond City Jail on burglary charges between 7:15 p.m. and 7:30 p.m. on Wednesday, February 18, 1976. See (Newton, attachment 1); See also (R.T. of 11/18/93 p.m., at pg. 5 [testimony of Petitioner]).

4. The “working copy” of this arrest report documents that Petitioner’s true identity was eventually discovered, that no charges were filed, that he was wanted in Arizona, and that a phone call was received or placed by or regarding Petitioner at 2:30 p.m. on a date unknown. (Newton, at pgs. 13-14).

5. The following day, Thursday, February 19, 1976, Petitioner’s identity became known and his California Parole Officer, Larry Har-boldt, completed a form entitled “Authorization to Detain” which informally placed a “hold” on Petitioner for violation of the conditions of his parole. There was no testimony or evidence provided as to what was done with this form, nor is there any stamp indicating when or where it may have been filed. See (Newton, attachment 7).

6. On the same day, a teletyped warrant, No. B44028, confirming and formalizing the parole hold was sent to the Richmond Police Department. See (Newton, attachment 8).

7. At 6:00 p.m. on the same day, Petitioner was formally arrested pursuant to this warrant. See (Newton, attachment 6).

8. At the same time Petitioner was also arrested and booked on related burglary charges originating in El Cerrito County. See (Newton, attachment 4).

9. On the same day in Arizona, Lieutenant Douglas G. Steele of the Mohave County Sheriffs Office filed a complaint in the Justice Court for Mohave County, Arizona accusing Petitioner of the theft of the victim’s pick-up truck. See Petitioner’s Exhibit No. 17 (complaint). At this point, no formal allegation of murder was raised in this or any other document filed in Arizona.

10. At 7:15 p.m. on Thursday, February 19, Petitioner was arrested as a suspect under investigation for a murder occurring in Arizona. See (Newton, attachment 3).

11. Mr. Newton verified that all charges were placed on Petitioner by the evening of February 19, 1976. (Newton, at pg. 89).

12. The California burglary charges upon which Petitioner was originally arrested were “dropped” by Richmond City Police Detective Collier when he learned that Petitioner was a murder suspect wanted in Arizona. See Exhibit 18 (R.T. of 6/22/76 [voluntariness hearing] at pg. 45); (Newton, at pgs. 18-19 & attachment 5).

13. The original arrest for investigation of murder was effectuated solely by members of the Richmond Police Department.

14. Arizona did not officially request that Petitioner be held on murder charges until February 25,1976, after Petitioner confessed to the crime. See (Newton, at pg. 25).

15. Petitioner provided a tape recorded statement/confession to Detective Collier of the Richmond City Police Department beginning at 5:58 p.m. on Wednesday, February 25, 1976, and concluding at 6:45 p.m. on the same day.

16. On the evening of February 25, 1976, after Petitioner provided Detective Collier with the statement at issue, Detective Scott of the Mohave County Sheriffs Office filed a Felony Complaint in the Lake Havasu City Precinct of the Mohave County Justice Court alleging that Petitioner murdered Elmer James Clary. (Deposition of Janice Rhodes, attachment 2, at pg. 6).

17. Subsequently, Justice Clyde A. McCune of the Mohave County Justice Court issued warrant number 25265 authorizing Petitioner’s arrest on the charge of murder. See (Rhodes, attachment 2, at pgs. 4^5).

18. At 9:02 p.m. on Wednesday, February 25, 1976, the Mohave County Sheriffs Office formally teletyped its request that Petitioner be held on charges of homicide pursuant to warrant number 25265. See (Newton, at pgs. 24-25 & attachment 10).

19. On March 1, 1976, 10 days after Petitioner was first arrested for investigation of murder, Detective Collier filed the first formal complaint against Petitioner in the Municipal Court of California alleging that Petitioner was wanted with respect to a fugitive warrant originating in Arizona. See (Rhodes, at pg. 8 & attachment 2, at pg. 9).

20. Petitioner did not consult with an attorney or appear before a judicial officer before March 1, 1976. See (Rhodes, at pg. 8 & attachment 2, at pgs. 7-8 [Municipal Court Criminal Docket]); See also (Deposition of Andrew Schwartz, at pgs. 10, 21 & attachment 1).

21. Petitioner was transferred to the Contra Costa County Jail at Martinez at 4:15 p.m. on March 1, 1976. See (Newton, at pgs. 33-34).

22. Petitioner’s first opportunity to appear before a judicial officer while represented by counsel occurred on March 3, 1976. At this proceeding Petitioner was represented by public defender, Andrew Schwartz. See (Rhodes, at pg. 8 & attachment 2, at pgs. 7-8 [Municipal Court Criminal Docket]);- See also (Schwartz, at pgs. 10, 21 & attachment 1; Weiss, at pgs. 27-28).

23. On March 8, 1976, Petitioner waived extradition and was ordered transferred to Arizona. See (Deposition of Diane Needham, at pg. 14 & attachment 1).

24. Petitioner was released to Mohave County on March 9, 1976. (Newton, at pgs. 33-34).

II. CONDITIONS OF CONFINEMENT AND PETITIONER’S PHYSICAL CONDITION:

In determining the conditions under which Petitioner was confined, the Court considered Petitioner’s testimony, the testimony of three current or former Richmond Police Officers, various exhibits, as well as the testimony of five individuals who were incarcerated in the Richmond City Jail during approximately the same time as Petitioner. The three current or former police officers were George Neal Newton, Robert Parrick, and Moses Madison York. The five individuals who provided videotaped testimony regarding the conditions at the jail were Thomas Hernandez, Emma Brausch, Billy Sewell, Weston Kevin Sockwell, and William Faulkner. See (Exhibits 1-A, 2-A, 3-A, 4-A, and 5-A). It should be noted that other than the state court record and the testimony of Lieutenant Robert Parrick, Respondents offered little evidence relevant to the conditions under which Petitioner was confined.

After consideration of the evidence and testimony noted above, the Court makes the following findings of fact:

25. At the time of the evidentiary hearing in this Court, Robert Parrick was a Lieutenant in charge of the Detective Bureau for the Richmond City Police Department and had been employed by the department for approximately 18 years.

26. At the time Petitioner was detained in the facility, Lieutenant Parrick was a Desk Sergeant with general supervisory responsibility for the jail, property vault, records, photo lab, and communication center. See (R.T. of 11/23/93, at pgs. 198-203).

27. Moses Madison York, who at the time of the hearing was employed as a school teacher in Fairfield, California, provided videotaped testimony.

28. In 1976, Mr. York served as a Police Officer with the Richmond Police Department and, more specifically, worked as a jailer in the Richmond City Jail. Mr. York testified that he recalled Petitioner not only because he was wanted for murder in another state, but also because he had several brief conversations with Petitioner. See (Deposition of Moses Madison York, at pgs. 5-9).

29. Due to Mr. York’s personal experience as a jailer, his recollection of Petitioner, and his general demeanor, the Court finds Mr. York a credible witness.

30. After reviewing the videotaped depositions and transcripts of the five witnesses, Hernandez, Brausch, Sewell, Sockwell, and Faulkner (hereinafter “Detainees”) the Court finds that all but one of the witnesses were convicted or detained on relatively minor charges or infractions. Further, the Court finds that all of the Detainees were incarcerated in the jail during the same time period as Petitioner. See (Exhibits 1-A, 2-A, 3-A, 4-A, and 5-A [depositions]).

31. All the Detainees testified substantially consistent with one another regarding the conditions in the jail and the attitude or demeanor of the Richmond City Police.

32. Much of the substantive testimony regarding the operational and hygienic aspects of the jail were, in varying degrees, confirmed by Lieutenant Parrick.

A) Jail Facility:

33. The City of Richmond, California is located in Contra Costa County in what is typically referred to as the “Bay Area”.

34. At the time of Petitioner’s incarceration, the Richmond City Jail was located on the second floor of the “Hall of Justice” which also served as headquarters for the Richmond Police Department.

35. At the time of Petitioner’s incarceration, the Richmond City Jail was officially classified as a “type I” facility by the State of California. See (Newton, at pg. 37 & attachment 16; York, at pgs. 13-14).

36. A “type I” facility is generally authorized to house individual prisoners for not more than 48 hours, excluding weekends and holidays. See Exhibit 8 ([Certified Letter and California Administrative Code, Division I, Chapter I, Subchapter 4, Article I, Section 1006, Subchapter (b)(3) ]).

37. It was a routine and common practice to transfer persons housed in the Richmond City Jail to the County Jail at Martinez within approximately 48 hours if they were not released on their own recognizance.

B) General Environment:

38. Supervision of the jail and its prisoners was the responsibility of the jailer on duty at the time.

39. Each jailer was accorded broad discretion with respect to all facets of prisoner management during his shift.

40. The jail facilities were spartan and were generally dirty and ill maintained. See (Sockwell, at pg. 10; Sewell, at pg. 8; Hernandez, at pgs. 9, 15; York, at pgs. 21-22, 63).

41. The cells in which prisoners were housed were littered with substantial amounts of refuse, spital, vomit, cigarette butts, old food containers and toilet paper. See (Sewell, at pgs. 8, 18; Hernandez, at pg. 15).

42. Custodians employed by the City of Richmond were responsible for cleaning the entire Hall of Justice, including the jail facilities. At most, however, the custodians had access to the cells twice per day, primarily at meal times, when the prisoner would be moved to “day cells”. See (Newton, at pg. 74). It would appear, however, that the cleaning schedule was not rigidly enforced. See (Sockwell, at pg. 10).

43. While incarcerated in the jail, prisoners were routinely denied access to shower facilities and were denied the opportunity to perform basic hygienic tasks such as brushing their teeth or changing their clothes. See (Sockwell, at pgs. 8, 23; Sewell, at pg. 9; Brausch, at pg. 10; Newton, at pgs. 79-80).

44. The plumbing within the jail was in poor condition and both the Detainees and police officers confirmed that fresh running water was not always readily available either for showers or consumption. See (Brausch, at pg. 7; R.T. of 12/2/93 [testimony of Lt. Patrick] at pgs. 67, 215).

45. Although each individual jailer had the discretion to provide showers to a prisoner, the possibility appeal’s to have been more theoretical than practical because the jailers had no towels, soap, or any of the other necessities. (York, at pg. 28).

46. In addition to being generally unsanitary, the jail was also poorly heated. Although the jail shared the central hot water heating system with the rest of the building, there was ample testimony that it was significantly colder in the jail than in the booking area adjacent to the jail. See (York, at pg. 24; Hernandez, at pg. 49; Sewell, at pg. 21).

47. The design and concrete construction of the jail enhanced the cold and damp environment and rendered the ventilation system incapable of adequately compensating for the rapid climatic changes often occurring in the “Bay Area” during the winter months.

48. The jailers would frequently open the windows in the jail to provide for additional ventilation, regardless of the weather conditions. (Newton, at pg. 68; York, at pg. 64; R.T. of 11/23/93 [Lt. Patrick] at pgs. 225-26; Hernandez, at pg. 12).

49. During the winter months the temperatures within the facility could get as low as the thirties or forties at night. See (York, at pgs. 23-25, 64; Brausch, at pg. 11; Sock-well, at pg. 28; Sewell, at pg. 10; Hernandez, at pgs. 30, 40).

50. The temperatures in Richmond, California between February 18, 1976 and February 25,1976, varied between highs of 56-68 degrees and lows between 39-49 degrees. See Petitioner’s Exhibit 9 (National Climatic Data Center records for Richmond, California).

51. Prisoners typically remained in their own clothes while incarcerated and were issued one wool blanket, similar to those used in the military. Prisoners would utilize the same blanket throughout the duration of their detention. See (Newton, at pg. 71).

52. Although prisoners could request additional blankets, it was at the sole discretion of the jailer on duty at the time as to whether additional blankets would be issued. It would also appear that such requests were often ignored. (Newton, at pg. 71; Brausch, at pg. 11; Sockwell, at pgs. 26-27).

53. There was conflicting testimony provided by the witnesses as to the size of these blankets, however, it appears that they may be generally described as smaller than a typical blanket made for a full-sized bed.

54. The blankets were old and beginning to suffer the effects of age, becoming tattered and generally dirty. See (R.T. of 11/23/93 [Lt. Parrick], at pg. 214; Faulkner, at pg. 8; Hernandez, at pgs. 10-11; Sewell, at pg. 9).

55. Prisoners were fed two “T.V. type” dinners twice daily. One at approximately 6:00 in the morning and one at approximately 6:00 in the evening. See (Newton, at pg. 64; Sewell, at pg. 6; Sockwell, at pgs. 6-7; Hernandez, at pg. 7; Brausch, at pg. 7; Faulkner, at pg. 8; York, at pg. 32; R.T. of 11/23/93 [Lieutenant Parrick], at pgs. 227-230).

56. The dinners were small and generally inadequate in both size and nutritional value. See (Sewell, at pg. 7; Sockwell, at pgs. 7 — 8; Hernandez, at pg. 8; Brausch, at pg. 8; Faulkner, at pgs. 8-9; York, at pgs. 31, 60, & 75; R.T. of 12/2/93 [Lieutenant Parriek-Cross], at pg. 60); Exh. 27-Jail Evaluation Form, ¶ 9(b) at pg. 7 (Diet not sufficiently nutritious).

57. Although prisoners typically remained in their street clothes, paper suits were provided to any prisoner whose clothes were confiscated for evidentiary purposes.

58. Once an individual was issued a paper suit, the prisoner remained in that suit for the duration of his stay at the jail and would be issued a new suit only in the most exceptional circumstances. See (York, at pgs. 26-27; Sockwell, at pg. 15).

59. The suits were zip-up style and were constructed of a nylon/paper substance.

60. Each suit was about as thick as a paper grocery bag, and the uncontradicted evidence demonstrates that the suits provided little insulation from the cold and would tear with even normal body movements. (R.T. of 6/22/76 [voluntariness hearing] at pg. 54; Sockwell, at pgs. 13-14; Hernandez, at pgs. 11-12; York, at pgs. 26-27).

61. There were no medical or nursing facilities available at the jail. Furthermore, absent extreme and visible injuries warranting immediate emergency treatment, prisoners did not receive medical assistance and were required to await their transfer to the county jail. (York, at pg. 32; Hernandez, at pgs. 13-14; Sockwell, at pg. 12). It should be noted, however, that many of these amenities or services were lacking solely because most prisoners were transferred or released within 48 hours.

C) Petitioner’s Experiences Prior To Arrest And In Custody:

62. Petitioner was familiar with institutional confinement and was released from San Quentin prison in December 1975. (R.T. of 11/23/93 at pg. 5). Upon being released, Petitioner violated the conditions of his parole with his departure from the Bay Area to live a life of solitude in the mountains. (R.T. of 11/23/93 at pgs. 5-15).

63. Petitioner was arrested on February 18, 1976, and was detained in the Richmond City Jail for a period of six days, 22% hours before providing a taped confession to Detective Donald Collier of the Richmond City Police Department on February 25, 1976.

64. Throughout his incarceration in the jail, Petitioner was aware, from both personal observation and informal gossip, that the jail was a 48 hour facility. See e.g. (R.T. of 11/18/93, at pg. 52).

65. Petitioner was issued one blanket and was allowed to remain in his civilian attire throughout the evening of February 18,1976, and for most of the following day.

66. After Collier identified Petitioner as the suspect in an Arizona homicide, Petitioner was again arrested, removed from his original cell, and placed in solitary confinement in what has been referred to as the “trustee’s cell.”

67. The trustee’s cell was located somewhat closer to the booking area than a majority of the cells and was of a sufficient size to comfortably house one prisoner.

68. The trustee’s cell was more spartan and less frequently cleaned that the other cells. See (Newton, at pg. 106) (noting that any cleaning occurred only when prisoners were transferred to the “day cells” at meal times because the custodians could not be placed at risk or have contact with the prisoners and that a suspected murderer would have remained in his cell to eat because of the severity of his charges); See also (R.T. of 6/22/76 [voluntariness hearing] at pg. 125).

69. There is no dispute that after being placed in the trustee’s cell, Petitioner’s clothes were confiscated for evidentiary purposes and he was issued a paper suit and paper slippers. See (R.T. of-6/22/76 [volun-tariness hearing] at pg. 103; York, at pg. 27).

70. After repeated requests, Mr. York provided Petitioner an additional blanket. The blanket, however, was in poor condition and was approximately one-half the size of the blankets typically provided.

71. Prisoners provided only one or two blankets and clothed in nothing more than a paper suit would be uncomfortably cold when the temperatures reached the 30’s or 40’s as they did during Petitioner’s detention. See (R.T. of 6/22/76 [voluntariness hearing] at pg. 103; York, at pgs. 34, 66).

72. The paper suits provided little protection from the elements and, in light of the conditions present in the jail and the weather at that time, the Court finds that Petitioner was uncomfortably cold and repeatedly noted his discomfort and requested additional blankets. See Exhibit 18 (R.T. of 6/22/76 [volun-tariness hearing] at pgs. 39, 52-54, 73, 103; York at pg. 34).

73. Petitioner was provided only one paper suit which became torn in the groin area. Although Petitioner testified that he suffered great embarrassment after walking in front of two women while being escorted to Ms interview with Detective Scott, the evidence was less than conclusive as to the severity of the tears, especially considering that Petitioner wore the paper suit, at most, one day from the 19th to the 20th.

74. After being confined in the cell for a period of time, Petitioner requested the opportunity to shower. (R.T. of 6/22/76 [volun-tariness hearing] at pg. 123; R.T. of 11/18/93 at pg. 42). Petitioner’s request was, however, denied thereby adding to his discomfort and odorous nature. See (R.T. of 11/23/93 at pg. 236; York, at pg. 29).

75. Lieutenant Parrick stated that the shower in the trustee’s cell had, to the best of his knowledge, been turned off, perhaps in part due to problems with plumbing and drainage. (R.T. of 12/2/93 at pg. 67; R.T. of 11/23/93 at pg. 215).

76. Petitioner voiced his dissatisfaction with the quantity of the food served to Detective Collier. See (R.T. of 6/22/76 [volun-tariness hearing] at pg. 61).

77. In addition to dealing with the spartan conditions prevalent in the jail, Petitioner also suffered from personal maladies including chronic sinusitis and related minor respiratory ailments.

78. Due to his condition, Petitioner, on a daily basis, utilized what are now common over-the-counter antihistamines and decongestants. Moreover, to a limited extent, Petitioner has become somewhat dependent upon these medications.

79. While incarcerated Petitioner requested access to his previously confiscated medicine, or in the alternative, medical treatment. Petitioner was informed, however, that his own medicine could not be given to him pursuant to jail regulations and that no medical facilities were available. See (R.T. of 6/22/76 [voluntariness hearing] at pg. 103; R.T. of 11/23/93 at pg. 193; York, at pg. 35).

80. Several days after being deprived of his medication Petitioner began to suffer from increasingly severe headaches and congestion. These symptoms were further aggravated by the cold and drafty environment. See (R.T. of 11/18/93 at pgs. 15-16, 24, 41 [Doctor McKinley]; R.T. of 11/17/93 [Doctor Bendheim] at pg. 50).

81. Other than requesting his own medication, Petitioner did not request any additional medical treatment.

82. On the day Petitioner provided his statement he testified that he felt very ill:

[M]y biggest problem was the head'aches from the congestion. I had a cold, and I was really congested. Periodically over the years, what I thought was bronchitis, is when I get congested, and I get a little short of breath. It’s like an asthma attack, and it’s just really brief, but you just can’t catch your breath ... concerned about being cold, because I can’t get out of there. Going to get even more sick. That’s obvious. Can’t get medication. It’d be hard for me to describe the degree of how I was sick.

(R.T. of 11/17/93 at pgs. 59-60).

83. Petitioner provided medical evidence through the testimony of Doctor William McKinley, Jr., a physician currently employed by the Department of Corrections at the Special Management Unit at the Arizona State Prison at Florence, that, based upon Petitioner’s records and Doctor McKinley’s personal observations after treating Petitioner, it was likely that Petitioner’s nose would have become occluded, he would have suffered from postnasal drainage, possibly upper respiratory problems, headaches, and swelling. (R.T. of 11/18/93 at pgs. 21-22). Doctor McKinley further testified that although Petitioner would have been exceptionally miserable, the symptoms would not have, for example, “affected his capacity to swing a mop or push a broom." (R.T. of 11/18/93 at pg. 23).

84. Petitioner’s sinus condition was not, in itself, incapacitating, nor did it render Petitioner mentally incapable of reasoning. The contemporaneous tape recording of Petitioner’s confession discloses that while Petitioner repeatedly cleared his throat, he did not sound chronically ill and his discussion of the facts was coherent and logical.

III. POLICE ACTIONS:

A) Collier’s Actions Prior to Detective Scott’s Interview:

85. Donald Lee Collier was formerly a police detective employed by the City of Richmond Police Department.

86. Mr. Collier appeared at the evidentia-ry hearing through his testimony given at the state court voluntariness hearing, at trial, in his deposition conducted in 1990, as well as his police report, which reveal inconsistencies and contradictions in his recollection of events and his testimony impairing his credibility.

. 87. Collier’s first contact with Petitioner occurred at approximately 1:30 p.m. on February 19, 1976, when Collier, a burglary detective, went to the jail to investigate a burglary report involving Petitioner. At that time, Petitioner’s true identity was unknown. (R.T. of 6/22/76 [voluntariness hearing] at pg. 14).

88. Before questioning Petitioner, Collier Mirandized him utilizing a standard rights card.

89. Petitioner responded to Collier’s questions by stating “There is not much to say.” (R.T. of 6/22/76 at pg. 16).

90. Petitioner knew he had to go to court to have an attorney appointed and, therefore, believed there was no point in stating his request to Collier. See (R.T. of 11/18/93, at pgs. 62-63). Petitioner did, however, invoke his right to remain silent.

91. Petitioner failed to request counsel during his interview with Detective Scott on the following day, the Court finds that Petitioner merely invoked his Fifth Amendment right to remain silent and did not request counsel.

92. Both Petitioner and Collier confirmed that Petitioner was then escorted to the detective bureau by Collier where he was photographed and interrogated.

93. The interrogation was not a typical question and answer session, rather, Detective Collier’s supervisor questioned Petitioner regarding his identity while he was being photographed by Collier. In addition, the supervisor made intimidating statements in which he alluded that Petitioner may have been involved in other burglaries or that he may have been the serial killer at large at that time in the Bay Area. See (R.T. of 6/22/76 at pgs. 92-95).

94. These statements were made for the purpose of scaring Petitioner in the hopes that he would divulge his identity to avoid being accused of multiple homicides. It is clear, however, that Petitioner understood this at the time it occurred and that he was only minimally intimidated by these tactics at this specific time.

95. At some point both Detective Collier and his supervisor told Petitioner that he would not leave the Richmond Jail until he was properly identified and they knew what crimes he committed. (R.T. of 11/23/93 at pgs. 68-71; Collier depo., at pgs. 133-34).

96. Despite these tactics, however, Petitioner did not make any statements or identify himself at that time.

97. Collier became more suspicious of Petitioner’s identity when he was informed by the jailer that Petitioner had no identification when arrested. (R.T. of 6/22/76 at pg. 17). Collier, therefore, inspected Petitioner’s effects and from various photographs and some winter clothes surmised that Petitioner may have recently been in the Lake Tahoe area.

98. At approximately 3:15 p.m. on February 19, 1976, Collier contacted the Tahoe police to inquire whether they were looking for anyone matching Petitioner’s description. (R.T. of 6/22/76 at pg. 18).

99. The Tahoe police informed Collier that they had been notified on February 16, 1976 that one James Arnett, a.k.a. James Farmer, a.k.a. James Clay, may have been involved in a murder occurring near Lake Havasu City, Arizona. Upon receiving this information Collier contacted the Mohave County Sheriffs Office. (R.T. of 6/22/76 [vol-untariness hearing] at pg. 19).

100. At an unspecified time, Collier received a phone call from the Mohave County Sheriffs Office informing him that their suspect had a tattoo of a “flying eagle” on his left shoulder. Upon receiving this information, Collier and several other officers inspected Petitioner’s shoulder and confirmed the existence of the tattoo. At this point, Collier informed Petitioner that he was under arrest for investigation of a murder occurring in Arizona.

101. Collier did not again advise Petitioner of his Miranda rights and merely placed Petitioner in the trustee’s cell. (R.T. of 6/22/76 [voluntariness hearing] at pgs. 20, 63-64).

102. A short time later, an identification technician took photographs, finger nail scrapings, and hair samples from Petitioner’s person.

103. Mr. Newton testified that the arrest reports submitted as attachments to his deposition indicated that no charges were filed in relation to the California offenses. Mr. Newton could not, however, determine when those charges were dropped.

104. Although not noted upon the arrest reports, Collier stated that he dropped the burglary charges as soon as he learned that Petitioner was wanted in Arizona. (R.T. of 6/22/76 [voluntariness hearing] at pg. 45).

105. Collier had no further contact with Petitioner on February 19, 1976.

B) Detective Scott Interview:

106. Collier’s next contact with Petitioner occurred around 8:00 p.m. on the following day, February 20,1976, when Detective Scott of the Mohave County Sheriffs Office arrived to question Petitioner regarding the Arizona homicide.

107. Upon Detective Scott’s arrival, Petitioner was taken to an interview room where Detective Scott advised him of his Miranda rights.

108. Detective Scott proceeded to inform Petitioner that he was suspected of committing a murder and relayed to Petitioner the general facts of the crime as they were known. (R.T. of 6/22/76 [voluntariness hearing] at pgs. 22-23, 69-71; R.T. of 11/17/93 at pgs. 33-34).

109. Detectives Scott and Collier questioned Petitioner about the homicide, at which time Petitioner invoked his Miranda rights, i.e., he invoked his right to remain silent, but never requested an attorney.

110. Petitioner did, however, request information regarding his probable extradition to Arizona and attempted to negotiate for the dismissal of the California charges in exchange for his waiver of extradition proceedings.

111. Although Petitioner testified at the evidentiary hearing that he could not recall any further questioning after he invoked his rights, Detective Collier indicated that Detective Scott may have continued his questioning. Collier asserted that Scott continued to question Petitioner, but stated that Petitioner merely continued to assert his rights, refused to talk, and provided generally useless information. (Collier depo., at pgs. 79-80).

112. In addition to conducting additional questioning, other conversations also occurred. Apparently while extradition matters were being discussed a conversation was initiated regarding whether Arizona employed the death penalty as a mode of punishment. There was substantial dispute, however, as to who initiated this discussion. Petitioner asserts that Detective Collier unexpectedly initiated this discussion as a means of intimidating Petitioner. (R.T. of 11/18/93 at pgs. 33-37). Detectives Collier and Scott, however, assert that Petitioner questioned whether the death penalty existed in Arizona in the context of discussing his potential extradition. (R.T. of 6/22/76 [volun-tariness hearing] at pg. 71; Collier depo., at pg. 87).

113. There is no documentation or transcript of these prior conversations. The only evidence is the testimony of Petitioner and Detectives Collier and Scott. What is persuasive to the Court, however, is the virtual lack of any reference to this topic in the transcript of the tape recorded interview conducted immediately following these discussions. See (Exhibit 23).

114. A review of the transcript of the interview discloses that Detective Scott was careful to note he and Petitioner had engaged in prior conversations and that Petitioner agreed to sign a waiver of extradition if the California charges were dropped.

115. The Court finds it unlikely that Detective Scott would have failed to note Petitioner’s inquiry into the possible mode of punishment had such an inquiry been made, considering this was a murder case and such statements or inquiries would be highly incriminating. Moreover, Detective Scott specifically noted that the only thing Petitioner wanted to know was whether he was being extradited to Arizona. See (Exhibit 23, at Pg- 2).

116. The Court finds Petitioner’s version of events persuasive and that Detective Collier initiated the conversation regarding the death penalty.

117. Petitioner then provided a brief taped statement regarding the Arizona homicide, in which he again invoked his right to remain silent. Upon invoking his rights, Detective Scott terminated the taped interview. (R.T. of 11/18/93 at pgs. 33-37; R.T. of 6/22/76 at pg. 23; Collier depo., at pg. 79).

118. There also appears to be some confusion between Detectives Scott and Collier as to which of them had jurisdiction over Petitioner. Detective Scott specifically stated that Collier was present during the February 20th. interview because Petitioner “was his prisoner. He [Collier] had picked him up. He was in his custody, not in mine.” (R.T. of 6/22/76 [voluntariness hearing] at pg. 82). Detective Collier, on the other hand, stated that “the ease in my mind was all in the hands of Scott. It was committed in his area, his jurisdiction. He made the trip. He was their guy.” (Collier depo., at pg. 83); See also [Findings of Fact, Nos. 13 & 14].

119. As noted previously, the Court finds that Petitioner was arrested solely upon Collier’s authority initiated by an informal request from Scott.

C) Collier’s Actions Subsequent to February 20, 1976:

120. At this point it appears Collier began to take advantage of Petitioner’s incarceration in the jail and may have through the practice of “stacking charges” orchestrated Petitioner’s continued detention in that facility without transfer or an arraignment.

121. Collier acknowledged that the 48-hour rule was subject to potential abuse and his explanation illuminates the inherent problems with technically legal detentions that arguably involve unnecessary delays in arraignment. “The whole 48-hour thing,” if I stacked all the charges, I probably could have kept him in Richmond City Jail for two weeks, different cases, different jurisdictions. See (Collier depo., at pgs. 135-36).

122. Lieutenant Parrick also acknowledged the possibility of abuse of the 48-hour rule through what is referred to as the “stacking” of charges. He stated that technically you could continuously drop charges and add new ones and keep someone in jail continuously without taking them before a judicial officer. “[Tjechnically you can do that, but the judges really frown on that. It’s, you know, not good business.” (R.T. of 12/2/93 at pgs. 92-93).

123. There was other evidence of possible abuse. For example, although unsure as to how he acquired the information, i.e. whether directly from Collier or via his supervisor, Lieutenant Parrick recalled Collier requesting Petitioner’s continued incarceration in the jail. (R.T. of 11/23/93 at pgs. 231-32; R.T. of 12/3/93 at pgs. 69-71).

124. Collier next contacted Petitioner on the following day, February 21, 1976. (R.T. of 6/22/76 [voluntariness hearing] at pg. 23).

125. It should be noted that there was some question as to whether there was a national holiday occurring during Petitioner’s incarceration, thereby affecting the delay between Petitioner’s arrest and arraignment.

126. President’s Day is celebrated each year on the third Monday in February. See 5 U.S.C.A. § 6103.

127. In 1976, President’s Day was celebrated on Monday, February 16, 1976. Thus, no holiday occurred which would have affected Petitioner’s detention or delayed his arraignment.

128. Collier testified that he saw Petitioner less than once a day and had minimal contact with him prior to the time Petitioner chose to confess. Collier later contradicted himself, however, stating that he checked on Petitioner almost on a daily basis. See (R.T. of 6/22/76 at pgs. 60-61; Collier depo., at pgs. 98-100). Petitioner, on the other hand, asserts that Collier visited him every day and sometimes several times a day prior to the time he provided the statement. See (R.T. of 6/22/76 [voluntariness hearing] at pg. 105).

129. On balance, the most persuasive evidence is that Collier visited Petitioner on numerous occasions and engaged Petitioner in conversations or discussions for the purpose of eliciting incriminating responses.

130. Collier purposely acted friendly to Petitioner for the purpose of enhancing their rapport and, thereby, possibly obtaining a statement from Petitioner. (Collier depo., at pgs. 122-23).

131. All of these meetings concluded with Collier informing Petitioner that if he wished to speak to him he should request the jailer to get him at any time.

132. Petitioner was not Mirandized prior to each meeting. See (R.T. of 6/22/76 [volun-tariness hearing] at pgs. 58-59; Collier depo., at pg. 93).

133. Petitioner maintained his silence with respect to the Arizona homicide.

134. Although Petitioner testified at the voluntariness hearing that the conversations were general discussions that did not involve the crime, he also stated that Collier would repeatedly relay or summarize the facts or evidence known and attempt to have Petitioner “fill in the pieces”.

135. A fair interpretation of these statements, in the context of other related testimony, is that the talks were congenial in nature and did not occur in the typical interrogation setting, but were nonetheless specifically designed to elicit additional facts directly or indirectly pertaining to the crime. See (R.T. of 11/23/93 at pgs. 193-96; R.T. of 11/18/93 at pgs. 45-48).

136. Throughout his detention, Petitioner repeatedly questioned Collier regarding when he would be allowed to appear in court.

137. Collier provided Petitioner no information regarding the proposed length of Petitioner’s incarceration and was evasive regarding when Petitioner would be arraigned.

138. The lack of information served to add to Petitioner’s feelings that he would be held indefinitely in the Richmond City Jail because Petitioner knew that most individuals were taken before a judicial officer within 48 hours.

139. Petitioner believed that Collier was denying him access to the courts, and would continue to do so unless and until Petitioner cooperated. See (R.T. of 11/18/93 at pgs. 52-57). As Petitioner stated:

I made a determination I had to get out of there. The only way I was going to get out of there was talk to him. That was it. So I made that decision that was the only way I was going to get out of there. (R.T. of 11/18/93 at pg. 61).

I talked to him to get out of that — to get to the county jail where I could get some treatment, to where I could get to court. They told me repeatedly I’ve got these rights. I got a right to a lawyer, but when I asked Scott — I asked Collier about the lawyer, he says when you get to court. When I asked him when I’m going to court, he doesn’t know. He’s very evasive. (R.T. of 11/18/93 at pg. 67).

140. On the afternoon of February 25, 1976, Detective Collier met with Petitioner. There is some dispute, however, as to whether Petitioner requested the meeting or Detective Collier initiated the contact. Collier stated that Petitioner requested the jailer to contact him. See (R.T. of 6/22/76 [voluntariness hearing] at pg. 26; R.T. of 7/22/76 [trial] at pg. 43; Collier depo., at pg. 107). Petitioner, however, stated that Collier visited with him earlier that day, told him to contact the jailer if he needed anything, then later again visited Petitioner which precipitated the confession. (R.T. of 6/22/76 [voluntariness hearing] at pgs. 111-12). Petitioner, however, altered his testimony at the eviden-tiary hearing stating that he did request to see Collier. See (R.T. of 11/18/93 at pgs. 60-61).

141. Regardless of who actually initiated this meeting, it appears clear that Petitioner’s original intent was to ask Collier for a toothbrush. Upon being informed of this request either by Petitioner directly or via the jailer, Collier purchased a toothbrush, returned to the jail, requested that Petitioner be removed from his cell, and then accompanied Petitioner to a washroom.

142. After Petitioner brushed his teeth, Collier again informed him that he should contact him if he wanted to talk. At that point, Petitioner informed Collier that he was prepared to make a statement involving the Arizona homicide. See (R.T. of 6/22/76 [vol-untariness hearing] at pg. 27; Collier depo., at pg. 107).

143. Upon being told that Petitioner wished to make a statement, Collier responded by informing Petitioner that it was late in the day and he was not interested in hearing another denial of Petitioner’s involvement in the crime. (R.T. of 6/22/76 [voluntariness hearing] at pgs. 27-28; R.T. of 11/18/93 p.m. at pg. 62).

144. Collier, Petitioner, and Parrick entered the interview room at approximately 5:45 p.m. at which time Petitioner was read his Miranda rights and then provided a detailed statement admitting his involvement in the homicide.

D) Effect of Collier’s Actions and Detention:

145. Petitioner presented psychological and sociological evidence of the effect the conditions and duration of his confinement coupled with Collier’s actions had upon his will to resist.

146. Doctor Otto L. Bendheim, a psychiatrist with over fifty year’s of experience and Richard Ofshe, Ph.D., a sociologist, testified on behalf of Petitioner.

147. Both experts were of the opinion that Petitioner’s confession was not given voluntarily and that his will was overborne.

148. A review of Doctor Bendheim’s testimony reveals that he based his determination primarily upon his impression of the conditions under which Petitioner was confined, as well as the fact that California subsequently reclassified the jail as an 8-hour facility.

149. Doctor Bendheim stated that such conditions could have the ability to not only aggravate physical maladies, but that five days of confinement under such conditions could also “break down” one’s mental resistance. (R.T. of 11/17/93 at pgs. 52-62, 104).

150. Doctor Bendheim also opined, however, that Petitioner was “street-wise” and that such experience would tend to reduce the psychological feelings of coercion. (R.T. of 11/17/93 at pgs. 63, 82).

151. When questioned, Doctor Bendheim stated that his opinion or conclusions would change if the reason California reclassified the jail involved administrative decisions or considerations other than, or in addition to humanitarian concerns. (R.T. of 11/17/93 at pg. 81).

152. Although Doctor Bendheim was a credible and informative witness, in light of the nature and basis of his testimony, his conclusions are not dispositive as to whether Petitioner’s will was overborne and is merely persuasive evidence that the erosion of Petitioner’s will had likely begun.

153. Doctor Ofshe is a professor of sociology at the University of California at Berkeley. Doctor Ofshe testified that his area of expertise involves social and interpersonal influence, especially the sociological dynamics involved in police interrogations. (R.T. of 11/17/93 at pgs. 109-115).

154. Respondents argued that Doctor Ofshe was not qualified to testify both due to a lack of experience and because he would inevitably be discussing psychological aspects of the voluntariness inquiry. The Court ruled, however, that while Doctor Ofshe’s experience may impact upon the weight accorded his testimony, it did not impact upon his qualifications to testify. (R.T. of 11/17/93 at pg. 130).

155. After reviewing various portions of the record and the depositions of several witnesses Doctor Ofshe concluded that Petitioner’s confession was elicited through a coercive strategy employed by Detective Collier. (R.T. of 11/17/93 at pg. 143).

156. Doctor Ofshe opined that Collier’s strategy was to allow Petitioner to believe that only by confessing to Collier would his oppressive and apparently interminable confinement end.

157. Doctor Ofshe stated that although Petitioner demonstrated some sophistication with the law, individuals like Petitioner who become accustomed to custodial confinement are often highly sensitive to even minor changes in their environment; changes that would seem almost insignificant to average individuals.

158. Upon consideration of the expert testimony proffered, the Court finds that Petitioner was “street-wise” and generally familiar with police procedures.

159. Even according even minimal weight to Petitioner’s expert testimony it becomes apparent that Petitioner became concerned when he was not arraigned or transferred to the county jail within the typical 48-hour time period. Moreover, considering Petitioner’s personal habits, the deprivation of his medicine, and Collier’s repeated contacts even after invocation of his rights, it is likely that Petitioner’s capacity to resist began to deteriorate.

CONCLUSIONS OF LAW

To the extent that any Findings of Fact are deemed to be Conclusions of Law, they are hereby incorporated into these Conclusions of Law.

1. Involuntary confessions in state criminal cases are inadmissible under the 14th Amendment. Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960).

2. Whether a confession was voluntarily given, however, is a legal question warranting de novo consideration in a federal habeas proceeding. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985); Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir.1991) (en banc) (noting that federal courts are not bound by state court determinations of voluntariness), cert. denied, 502 U.S. 1031, 112 S.Ct. 870, 116 L.Ed.2d 776 (1992).

3. To determine the voluntariness of a confession, the Court must consider the effect that the totality of the circumstances had upon the will of the petitioner. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973).

4. At a voluntariness hearing occurring before trial, the prosecution must prove by a preponderance of the evidence that a confession is voluntary. On collateral review, however, it is the petitioner who must prove the statements involuntary by a preponderance of the evidence. Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.) (on remand from 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986).

5. Prior to deeming a confession involuntary, a court must find that the police engaged in some form of coercive activity. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473 (1986); See also Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir.1990), cert. denied, 502 U.S. 853, 112 S.Ct. 161, 116 L.Ed.2d 126 (1991) (noting that age and mental capacity of the defendant became relevant to the voluntariness inquiry only if coercive police conduct was present).

6. Whether coercive police activity occurred is a question subject to de novo review. Derrick v. Peterson, 924 F.2d at 818.

7. Petitioner contends that the police engaged in coercive conduct by improperly delaying his arraignment while subjecting him to onerous conditions of confinement. Further, Petitioner contends that the police willfully violated his Miranda rights and continuously questioned him about the murder. The Court will initially address whether these arguments objectively constitute police coercion.

8. If the Court finds coercive conduct, it will then determine whether Petitioner’s confession was involuntary under the totality of the circumstances present in this case, including Petitioner’s personal susceptibilities.

9. If the Court concludes that the confession was involuntary, it will then determine whether the statement’s admission was nonetheless harmless.

I. DID THE POLICE ENGAGE IN COERCIVE CONDUCT?

A. Delay In Arraignment And Conditions Of Detention:

10. Petitioner contends coercive police conduct exists because he was purposefully detained in the Richmond City Jail under oppressive conditions and in violation of state law. Petitioner contends that Detective Collier wilfully violated Section 825 of the California Penal Code and impinged upon his due process rights for the sole purpose of keeping Petitioner in his custody with the hopes of eliciting a confession. Moreover, Petitioner cites to Mallory v. United States, 354 U.S. 449, 455, 77 S.Ct. 1356, 1359-60, 1 L.Ed.2d 1479 (1957) and related federal authority pertaining to the admissibility of confessions and pre-arraignment delay. See 18 U.S.C. § 3501.

11. Petitioner’s reliance upon federal statutes and case law is unpersuasive. Petitioner was arrested by state authorities and detained solely upon state charges. “As long as a person is arrested and held only on state charges by state or local authorities, the provisions of § 3501(c) are not triggered.” United States v. Alvarez-Sanchez, — U.S. -,-, 114 S.Ct. 1599, 1604, 128 L.Ed.2d 319 (1994).

12. Petitioner also contends, however, that his detention violated state law. Section 825 of the California Penal Code provides, in part, as follows:

The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; provided, however, that when the two days prescribed herein expire at a time when the court in which the magistrate is sitting is not in session, such time shall be extended to include the duration of the next regular court session on the judicial day immediately following.

Petitioner argues that because all charges were placed no later than 7:15 p.m. on Thursday, February 19, 1976, and he was not arraigned until March 1, 1976, his detention and the resulting confession were unlawful.

13. Pursuant to the provisions of Section 825 quoted above, 24 of the 48 hours allotted for pre-arraignment custody expired by 7:15 p.m. on Friday, February 20, 1976. The following Saturday and Sunday are, however, excluded from the computation. The remaining 24 hours would have expired at 7:15 p.m. on Monday, February 23, 1976. Because the Municipal Court was not likely in session at that time, however, it would appear that the Richmond Police had until the conclusion of the court’s session on Tuesday, February 24, 1976, in which to arraign Petitioner on the remaining charges, including the investigation for murder filed by Detective Collier. Thus, all of the pending charges “expired” on the day preceding the date upon which Petitioner confessed.

14. As noted previously, however, Petitioner was also detained pursuant to a “parole hold” placed upon him on Thursday, February 19, 1976. A hold may be placed upon a parolee solely upon the authority of a parole officer in, for example, the following situations:

“A ‘parole hold’ occurs when a parole agent or other representative of the [Adult] Authority causes a parolee to be restrained in custody independent of any action by the decision-making component of the Authority. The situation occurs (1) when the parole agent believes that the parolee has violated a condition of parole, [or] (2) when the parolee has been arrested on a new criminal charge — a prima facie violation of parole ... Common to [both of these] situations is the power of the agent to have the parolee restrained merely by exercising his authority to take the parolee into custody and book him into a local jail or, in the event he is already in jail, prevent him from being released on bail.”

In re Law, 109 Cal.Rptr. 573, 575, 10 Cal.3d 21, 24, 513 P.2d 621, 623 n. 2 (1973 (In Bank). A parole hold may also be placed upo