The following excerpt is from Taylor v. State of Arizona, 424 F.2d 271 (9th Cir. 1970):
As to the first ground, we recently pointed out in Pineda v. Craven, 424 F.2d 369, 371 (9th Cir. March 16, 1970), that "the failure to assert a Fourth Amendment claim at the time of trial does not foreclose a petitioner's federal habeas attack unless that failure was the result of a deliberate bypass or a waiver complying with the standard of Johnson v. Zerbst, (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 * * *"; and "when the state court has not held an evidentiary hearing and has not thereafter reliably found the facts affecting the federal constitutional claim, the federal habeas court must hold its own evidentiary hearing and itself find the relevant facts."
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