Castle, Senior Circuit Judge, Kiley and Kerner, Circuit Judges. Kerner, Circuit Judge (concurring in the result).
CASTLE, Senior Circuit Judge.
Petitioner appeals from the dismissal by the district court of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner was convicted in the Circuit Court of Williamson County, Illinois, of the crime of murder, and sentenced to 150 years imprisonment, said sentence to run concurrently with a prior 40 year federal sentence. The Supreme Court of Illinois affirmed the judgment of conviction, People v. Milani, 34 Ill.2d 524, 216 N.E.2d 816 (1966), but the United States Supreme Court reversed due to the refusal of the Supreme Court of Illinois to appoint counsel on appeal, Milani v. Illinois, 386 U.S. 12, 87 S. Ct. 12, 17 L. Ed. 2d 702 (1967). On remand, counsel was appointed and a full appeal was taken, resulting in an affirmance. People v. Milani, 39 Ill.2d 22, 233 N.E.2d 398 (1968) cert. den., 393 U.S. 865, 89 S. Ct. 148, 21 L. Ed. 2d 134.
On appeal, petitioner contends, as he did before the state court, that the holding in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), requires reversal of his conviction. The contentions supporting this claim relate to the admission into evidence of certain incriminating statements made by defendant to a fellow inmate at Leavenworth Federal Penitentiary, where petitioner was being held prior to trial.*fn1 In the latter part of January, 1961, petitioner made an incriminating statement to inmate James Devens, from whom petitioner sought legal advice, and who, on February 2, reported the statement to the Federal Bureau of Investigation. The State claims that this was the only incriminating statement admitted at trial. Petitioner claims that Devens' testimony at trial related to a series of conversations which took place over a two month period, after the F.B.I. had been informed of the first such statement.
In Massiah, supra, the Supreme Court held that self-incriminating statements deliberately, although surreptitiously, elicited from an indicted defendant, taken in the absence of counsel, were violations of the defendant's right to counsel under the Sixth Amendment, and thus inadmissible at trial.*fn2 Such statements are inadmissible whether they are taken by the police or by an informant working as an agent of the police, regardless of the voluntariness of the statement. See Beatty v. United States, 389 U.S. 45, 88 S. Ct. 234, 19 L. Ed. 2d 48 (1967) (per curiam). In Hancock v. White, 378 F.2d 479, 482 (1st Cir. 1967), the Court, citing McLeod v. Ohio, 381 U.S. 356, 85 S. Ct. 1556, 14 L. Ed. 2d 682 (1965), held:
"The Massiah rule is not limited to Massiah 'circumstances' but applies to exclude post-indictment incriminating statements of an accused to government agents in the absence of counsel even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception."
In the instant case, we are of the opinion that the testimony in question does not fall within the Massiah rule since Devens was never an agent of the police or the F.B.I. The state court record, excerpts of which were filed by petitioner with the district court,*fn3 discloses that Devens was in contact with the F.B.I. from February 2, 1961, through the time of trial and that he reported to the F.B.I. every time petitioner said something to him. On cross examination, the following colloquy took place between defense counsel and Devens:
"A. Well they asked me what our conversation was and I told them every word that Joe said.
Q. And then what did they say to you?
A. What did they say to me? They didn't say nothing until I got further information.
Q. Did they tell you to get further information?
A. They instructed me to do nothing.
Q. Was that their instruction or did they tell you ...