opinion: UNITED STATES of America ex rel. Melvin Lee SMITH, Petitioner-Appellee, v. Charles J. ROWE and William Klusak, Respondents-Appellants.
  No. 79-2107.
  United States Court of Appeals, Seventh Circuit.
  Oct. 17, 1984.
  Rehearing Denied Nov. 29,1984.
  Melbourne A. Noel, Jr., Chicago, 111., for petitioner-appellee.
  Andrew Berman, Asst. Public Defender of Cook County, Chicago, 111., for respondents-appellants.
  Before CUMMINGS, Chief Judge, and SWYGERT and FAIRCHILD, Senior Circuit Judges.
  PER CURIAM.
  Petitioner Smith was convicted of armed robbery in a jury trial in the Circuit Court of Kane County, Illinois on January 30, 1975. The Illinois Appellate Court affirmed, People v. Smith, 52 Ill.App.3d 583, 10 Ill.Dec. 303, 367 N.E.2d 756 (1977), the Illinois Supreme Court denied leave to appeal, and the United States Supreme Court denied certiorari, Smith v. Illinois, 436 U.S. 961, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978).
  Petitioner then filed his petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. That court granted the writ, and this court affirmed, United States ex rel. Smith v. Rowe, 618 F.2d 1204 (7th Cir. 1980). The Supreme Court granted certiorari, Franzen v. Smith, 449 U.S. 810, 101 S.Ct. 57, 66 L.Ed.2d 13 (1980), and remanded the case to this court for reconsideration in light of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). On remand, this court reaffirmed its prior decision that the district court had properly granted the writ, United States ex rel. Smith v. Franzen, 660 F.2d 237 (7th Cir. 1981). The Supreme Court again granted certiorari, Lane v. Smith, 457 U.S. 1102, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982), and remanded the case to this court for reconsideration in light of Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982).
  The parties have submitted additional briefs to the court on the issue that is before this court on remand: whether the prosecutor’s comments in closing argument about the failure of petitioner and another witness to come forward with his alibi following his arrest but prior to his trial violated the Due Process Clause of the fourteenth amendment. In light of Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490, and subsequent decisions of this court, see Feela v. Israel, 727 F.2d 151 (7th Cir.1984); United States ex rel. Saulsbury v. Greer, 702 F.2d 651 (7th Cir.1983), we conclude that the prosecutor’s attempt to impeach petitioner by his post-arrest silence did not violate petitioner’s right to fundamental fairness guaranteed by the Due Process Clause.
  In Fletcher, the Court stated:
  In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to the post-arrest silence when a defendant chooses to take the stand.
  Id. at 607, 102 S.Ct. at 1312. There is no indication in the case at bar that the petitioner had received his Miranda warnings prior to the post-arrest silence alluded to by the prosecutor in his closing argument. Thus, “[t]o the extent that the prosecutor’s ... [comments] focused on such ^re-Miranda silence, the ... [comments were] proper.” Feela v. Israel, 727 F.2d at 157.
  Petitioner attempts to distinguish Fletcher by arguing that he received the “sort of affirmative assurances embodied in the Miranda warnings ____” He contends that his attorney instructed him that he had the right to remain silent and that he should not reveal his alibi defense before trial. We do not believe, however, that these are the kinds of “affirmative assurances” to which the Fletcher Court was referring. Fletcher and other Supreme Court decisions regarding the use by prosecutors of a defendant’s silence, see Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), were all based on the fundamental unfairness of inducing a defendant to exercise the right to remain silent and then using that silence at trial to impeach the defendant. See Fletcher, 455 U.S. at 606, 102 S.Ct. at 1311. Here, it was the petitioner’s own attorney, who presumably had no intention of impeaching his own client, who assured him that he had the right to remain silent. Thus, the fundamental unfairness of “induced detrimental reliance,” Feela, 727 F.2d at 157, is not present here.
  We find that this case is simply indistinguishable from Fletcher. We therefore reverse the order of the district court granting the writ of habeas corpus.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama