State ex rel. Barrabino v. Henderson

PER CURIAM

An evidentiary hearing is ordered on the allegations of conviction on' the basis of evidence obtained by unlawful search and seizure, and upon whether the relator counsel had made a deliberate bypass of state procedure to urge such contentions, thus waiving any present right to complain. La.C.Cr.P. art. 362(9), Official Revision Comment (i); see, Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Faye v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See also Lay, Post Conviction Remedies, etc., 3 Creighton L. Rev. 5 (1969) and Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 Minn.L.Rev. 1175, 1208 (1970).

SANDERS, C. J., dissents with written reasons. SUMMERS, J., dissents for the reasons assigned by Sanders, C. J. MARCUS, J., dissents. TATE, J. also assigns additional concurring reasons.