Ernest Vivallava Pineda, and v. Walter E. Craven, Warden of the California State Prison at Folsom, Respondentand

Pineda, a California prisoner, appeals from an order of the district court denying his habeas petition without an evi-dentiary hearing.

In his habeas petition, filed pursuant to 28 U.S.C. § 2241 , Pineda attacked his 1964 conviction for possession of heroin and his 1951 conviction for possession of marihuana. He claimed that his 1964 conviction resulted from the introduction against him of evidence that was the product of an illegal search and that his 1951 conviction (used to enhance punishment for the 1964 offense) was ob *371 tained in violation of his Sixth Amendment right to counsel. The district court denied relief because “the California appellate court affirmed the judgment against petitioner, and since this court agrees with the correctness of that court’s judgment, petitioner is not entitled as a matter of law to the relief he here seeks.”

The dispute on appeal is not about the legality of the search that produced the evidence used to convict Pineda in 1964. The search was conducted pursuant to a search warrant that failed to meet the test of Aguilar v. Texas (1964) 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 . The issue is whether Pineda’s federal habeas remedy is…

On Petition for Rehearing and for Rehearing in Banc

The panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for a rehearing in banc.

In his petition appellee contends that our opinion is contrary to the holding of this court in Kuhl v. United States, 370 F.2d 20 (9th Cir. 1966). Kuhl is distinguishable.

There the very existence of the right allegedly waived was founded on a disputed proposition of law. The question was whether we should, on collateral attack of the judgment under § 2255, entertain the dispute and resolve it. Trial counsel had been aware of the fact that his side of the dispute was arguable, yet had deliberately refrained from presenting it to the trial court. Under the circumstances we decided that the issue had been waived.

Here we are not called on to decide a question that counsel had deliberately refrained from asking the trial court to decide. The question here is whether the right to challenge the search warrant under Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), which unquestionably was applicable, was knowingly waived. It is clear that it was not.

The full court has…

424 F.2d 369 Ernest Vivallava PINEDA, Petitioner and Appellant, v. Walter E. CRAVEN, Warden of the California State Prison at Folsom, Respondentand Appellee. No. 23767. United States Court of Appeals, Ninth Circuit. March 16, 1970, Rehearing Denied April 27, 1970. Sheldon Portman (argued), San Jose, Cal., for appellant. Jack R. Winkler (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., State of Cal., Sacramento, Cal., for appellee. Before MERRILL, KOELSCH, and HUFSTEDLER, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 Pineda, a California prisoner, appeals from an order of the district court denying his habeas petition without an evidentiary hearing. 2 In his habeas petition, filed pursuant to 28 U.S.C. 2241, Pineda attacked his 1964 conviction for possession of heroin and his 1951 conviction for possession of marihuana. He claimed that his 1964 conviction resulted from the introduction against him of evidence that was the product of an illegal search and that his 1951 conviction (used to enhance punishment for the 1964 offense) was obtained in violation of his Sixth Amendment right to counsel. The district court denied relief because 'the California appellate court affirmed…