*2 MERRILL, Before KOELSCH, HUFSTEDLER, Judges. Circuit HUFSTEDLER, Judge: Circuit prisoner, appeals California deny- an order of the district court his habeas without an evi- dentiary hearing. petition, to 28 U.S.C. Pineda attacked his possession 1964 conviction for of heroin possession his 1951 conviction for marihuana. He claimed that his 1964 conviction resulted from the introduc- against tion him of evidence that was the product illegal of an search and that his (used pun- 1951 conviction to enhance offense) ishment ob- underlined Amend- Sixth tained in that, purpose, no distinction court The district to counsel. ment ap- violations drawn claimed “the between relief because rights Amend- the Fourth secured pellate affirmed court Fifth against and those secured and since (Cf. Amendments. agrees Sixth correctness with Hayden Penitentiary judgment, petitioner Md. court’s *3 782; 294, 1642, L.Ed.2d 18 to relief 87 S.Ct. the U.S. matter of titled as a supra.) Henry Mississippi, v. here seeks.” he appeal The is not the about The failure to his assert legality produced of the search that the Fourth Amendment claim at the time to evidence used convict in 1964. Pineda of or appeal trial on direct does not fore The a search was conducted to close Pineda’s federal un habeas attack search the that failed to meet that less de failure was the result aof (1964) of test U.S. 378 waiver, bypass complying liberate aor 108, 1509, 84 The S.Ct. L.Ed.2d with the standard Johnson v. Zerbst issue is whether Pineda’s federal habeas (1938) 1019, 458, 304 U.S. 58 S.Ct. remedy foreclosed reason of Fay Noia, supra, In L.Ed. 1461. the v. failure to raise Fourth Amendment Court held that a federal habeas court at or direct claim time of trial the deny can the all relief “after federal the hold that California. We by holding itself, a satisfied the issue is not foreclosed on the face hearing means,” the or some other that to record and that Pineda was entitled petitioner “knowingly priv forewent the evidentiary hearing upon ques- the ilege seeking to federal vindicate his bypassed tions of he waived whether or claims state whether the his Fourth Amendment claim. strategic, tactical, that or other reasons fairly described as the deliberate pursued At the time Pineda (372 by passing procedures.” remedies, state his state the and exhausted 438-439, 439.) at a at But U.S. 83 S.Ct. the rule failure federal resolve the habeas cannot question of the to the defendant raise questions factual determin inherent legality of the search and seizure before simply or waiver examin foreclosed been entered ing the recited and the conclusions facts direct and collateral the issue on both appellate reached in a state con objection attack, the could unless cerning (United petitioner’s claims. only by to cases reference been sustained Ragen (1959) Jennings States ex rel. v. yet the time of trial. to be determined 321, 3 L.Ed.2d Cal.App. 79 S.Ct. (1967) Pineda 296; 144.) Chester v. California That Cali 2d 1966) 778; Pike v. Dickson objection 355 F.2d contemporaneous rule fornia 1963) (9th 323 F.2d Chavez Mississip (Henry “procedural” rule 727.) v. Dickson (1965) pi evi the not held an such, When state court has 408), and, will not thereafter ground adequate and has as a state be considered affecting reliably the facts found Amend Fourth to foreclose review federal (Fay federal constitutional habeas federal ment claim on 398-399, its own eviden must hold habeas court (1963) U.S. Noia tiary hearing find the relevant 837).1 and itself Kaufman 822, (Townsend v. Sain facts. (1969) 394 U.S. Inadequate speculation Ground” “The Although is some 943, 997), found we have may Colum.Ii.Rev. Supreme have retreated principles persuade rejection unqualified us of the ade longer Fay adopted approach quate basis as a doctrine state Hill, (see control. denying federal presumptively (28 correct. U.S.C. respects expanded codified and in some 2254(d).) upset We see no § reason to in 28 U.S.C. as amended in that determination. The order is reversed and the cause is Pineda never received an eviden proceedings remanded for further con- tiary hearing on the merits his claim sistent expressed. with the views herein upon or bypass. bearing evidence on the foreclosure On Petition for and for issue is an affidavit of his trial counsel Rehearing in Banc presented to the state trial court in an effort to secure a new trial after PER CURIAM: expired time had within which to move panel as constituted in the above affidavit, a new trial. trial deny case has voted explained counsel that he had not ob reject and to jected “solely to the warrant because af *4 rehearing for a in banc. fiant believed that the California petition appellee In his contends on search warrants on the date of the holding our contrary trial afforded no defense as to the war of this court in Kuhl v. United words, rant.” In other trial counsel did 370 F.2d 20 Kuhl Aguilar Texas, supra, know about distinguishable. very right There the existence of the People he did not allegedly waived was founded on a dis- Cal.App.2d West puted proposition question of law. The 341. There is strate should, was whether we at- collateral gic ignorance, or tactical about and nei tack of the under ther a deliberate nor a waiver dispute tertain the and resolve it. Trial could be based on such even counsel had been aware of the fact by way if it were introduced of testi arguable, yet his side of the was mony evidentiary hearing. (New at an deliberately present- had from refrained Misterly (9th house v. ing it to the trial court. Under cir- F.2d ex rel. Hen cf. cumstances we decided that issue Brierley (E.D.Pa.1969) derson v. been waived. F.Supp. 638.) He is entitled to his evi Here we on remand to called on to the dis decide question deliberately trict court. counsel had asking frained the trial court to de- Pineda attacks his convic cide. The here is whether tion on the that he did not know challenge the search un- ingly understanding^ waive coun Texas, der ; therefore, sel the conviction cannot con (1964), which stitutionally pun be used to enhance his unquestionably applicable, was (Burgett ishment. knowingly It waived. is clear that was not. issue, On this unlike Fourth Amend The full court has been advised the state court afforded him suggestion hearing, for an in bane evidentiary hearing. a full and fair judge requested a vote resentenced, When he was issue suggestion rehearing on the in banc. against him, decided and that decision 35(b). Fed.R.App.P. appeal. was affirmed supra, Cal.App.2d rehearing at 473- Cal.Rptr. 144.) district court and the properly rejected. noted that that determination banc is