Petitioner, one Williams and one Auls, were convicted by a jury in the Superior Court of the State of California in and for the County of Yolo, of the offense denounced in § 591 of the Penal Code of the State of California.

On appeal' from the judgment of conviction to the District Court of Appeal for the State of California, Third District, the judgment of conviction was affirmed. (People v. Henderson, 214 Cal. App.2d 290 , 29 Cal.Rptr. 297 ). No petition for rehearing was filed. The petition of petitioner for a hearing by the Supreme Court of California was denied. (People v. Henderson, supra.)

Thereafter petitioner sought to file a petition for writ of habeas corpus in the United States District Court for the Northern District of California, Northern Division, in which he sought to raise the contention that he was convicted on the basis of evidence obtained through an illegal search and seizure in violation of the provisions of the Fourth Amendment to the Constitution of the United States. Permission to file this document was denied on the ground that the petition failed to show an exhaustion of available state remedies.

Petitioner then filed a petition for habeas corpus with the Supreme Court of the State of California alleging that his conviction was based upon evidence which was obtained by means of an illegal search and seizure. This petition was denied. Petitioner next filed a petition for habeas corpus which is the subject matter of the proceedings before us, raising again the search and seizure issue.

It is undisputed that the search and seizure issue was not raised at the trial in the Superior Court, nor was it raised on appeal to the District Court of Appeal for the State of California.

The District Court issued an order to show cause directed to the appellee. Ap-pellee filed a return to the order and a motion to dismiss, contending: (1) that petitioner had intentionally by-passed the California procedure for raising the search and seizure question, and (2) that the evidence did not support appellant’s claim of unlawful search. A traverse was filed by appellant. There was also filed with the District Court a record of the State Court proceedings.

Thereafter the District Court issued a memorandum and order which, in pertinent part, provides:

Pursuant to the order, the appellee submitted an affidavit of appellant’s trial counsel in which said counsel alleges: (1) that prior to trial he consulted with the appellant and advised him of the legal effect of the evidence appellant now claims was unlawfully seized; (2) that he informed appellant that, in his opinion, the evidence was admissible and was not seized as a consequence of an illegal search and seizure; that in said counsel’s opinion the police officers had probable cause to arrest appellant and his co-defendants; and that appellant’s code-fendant had freely consented to the search; (3) that appellant was alert and attentive during all interviews with said counsel and during the trial and was able to comprehend the proceedings; (4) that appellant understood counsel’s explanations with regard to the seized evidence and did not disagree with said counsel’s view of the case or with his proposed conduct of the trial nor did appellant object at trial (to his counsel or the court) to the admission of the aforesaid evidence; and (5) that the appellant did not intend to object to the evidence in question but intended to and did rely upon the defense that the evidence was found by the road. Petitioner filed a reply to his counsel’s affidavit. In such reply petitioner did not deny that he had consulted with and had been advised by counsel with regard to the search and seizure question but alleged he is an uneducated person and did not understand what his attorney explained to him.

Thereafter the District Court dismissed petitioner’s application for writ of habeas corpus stating, in part:

Petitioner’s major contention on this appeal is that he “did not knowingly and intentionally waive the illegal search question in the trial court.”

The deliberate by-passing of state procedure and waiver are substantially the same. Henry v. State of Mississippi, 379 U.S. 443, 448 , 85 S.Ct. 564 , 13 L.Ed.2d 408 (1965); Nelson v. People of State of California, decided May 25, 1965, 346 F.2d 73 (9th Cir. 1965).

We believe that petitioner’s major contention must be rejected on the authority of our recent decision in Nel son v. People of State of California, supra. In that case, counsel for Nelson, a state prisoner, disagreed with Nelson’s views that the search and seizure in that case was illegal and should be raised on the trial in the state court. Counsel stated to Nelson that in his opinion the search was legal and advised Nelson of his decision not to raise the issue at the trial. Although Nelson disagreed with such decision the issue was not raised at the trial without further objection on the part of Nelson. This court affirmed the order of the District Court dismissing the petition for habeas corpus. The facts in the instant case are well within the rationale expressed in Nelson.

One further question presented on this appeal remains. Petitioner objects to the submission of the affidavit by his trial counsel regarding the facts surrounding petitioner’s failure to raise the constitutional question of alleged illegal search and seizure before the trial court. He argues that such was a violation of the attorney-client privilege respecting confidential communications.

First, it appears that there is contained in the affidavit no averment by counsel of any communication from petitioner to him. While counsel avers that: petitioner was “alert and attentive” ; that “he understood and comprehended affiant’s explanations in regard to the seized evidence” ; and that petitioner “did not express dissatisfaction with affiant’s view of the case”, these are not communications which may be the subject of the privilege. See, United States v. Kendrick, 331 F.2d 110 (4th Cir. 1964).

Secondly, as to communications from counsel to petitioner, it is stated in the .affidavit:

If it be assumed that the communications of an attorney to his client are within the privilege, the reason for such privilege is to prevent the use of the attorney’s statements as admissions of his client, and to prevent inferences of the tenor of the client’s communications. 8 Wigmore, Evidence, (McNaughton Rev.1961), § 2320, pp. 628, 629.

Such reasons for the rule are not persuasive or readily apparent when applied to this habeas corpus proceeding.

If the communications by petitioner’s counsel to petitioner, as shown by counsel’s affidavit, are within the privilege, we hold that the privilege was waived when petitioner claimed in his habeas corpus proceeding that his right to be free of unreasonable search and seizure had been violated.

In the usual case, only the petitioner and his counsel are possessed of knowledge concerning the “deliberate” character of the failure to raise a defense. Were we to hold that the facts in this regard may not be the legitimate subject of inquiry in a habeas corpus proceeding, no basis would exist upon which the District Court could exercise its discretion other than upon the bare assertions of the petitioner. We refuse to countenance such result.

By our disposition of the case we need not consider the merits of petitioner’s Fourth Amendment ground. And we believe petitioner’s claim that the California trial court should have considered that ground on the basis of the total atmosphere of the case to be without merit.

The order appealed from is affirmed.

. “§ 591. Telegraph, telephone, or electric lines. “Every person who unlawfully and maliciously takes down, removes, injures or obstructs or makes any unauthorized connection with any line of telegraph or telephone, or any other line used to conduct electricity, or any part thereof, or appurtenances or apparatus connected therewith, or severs any wire thereof, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding one year.”