dissenting.
I respectfully dissent. I agree with the result and logic expressed by United States District Judge Harvey in his memorandum opinion and order filed in the district court on March 25, 1985. In my opinion, his ruling is consistent with Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). I would therefore affirm the district court.