specially concurring.
I concur in the result. I do not agree with that part of the majority opinion which holds that “if Anderson ever had any legitimate objection to the grand jury, he waived it when he entered his plea. Likewise, if he had a valid objection to the trial jury, he waived it when he announced that he was ready for trial.” One does not waive his rights unless he knows or has reason to know that he has such rights.
The petition in the present ease alleged “That it was only after petitioner’s conviction and an investigation by his trial attorneys, Mr. Herbert P. Welch, Mr. Robert L. Welch, and Mr. Leonard H. Waterman, into the composition of the Harney County jury lists that the first Indian to serve on a Harney County jury was called on a special panel on September 28, 1955.” It *628would appear from this assertion that petitioner did not know of the systematic exclusion of Indians from the jury until after his conviction. There is nothing to suggest that prior to that time he should have suspected official misconduct in the preparation of the jury list.
However, the objection now raised by petitioner could have been raised in the previous post-conviction proceeding, i.e., the habeas corpus proceeding brought in June, 1956. Under such circumstances ORS 138.550 (3) is controlling and petitioner is deemed to have waived his objection by failing to present it in the previous proceeding.①
It is possible that under Fay v. Noia, 83 Sup Ct 822, 9 L Ed2d 837 (1963) the writ of habeas corpus is still available to petitioner in the federal courts, but I do not think that this should concern us. By the enactment of ORS 138.550 the legislative assembly has expressed the policy of this state -with respect to the application of the principle of res judicata in post-conviction proceedings. Under that statute habeas corpus is not available to a petitioner who could have raised the question of due process in a previous post-conviction proceeding. That is a salutary rule. If the United States Supreme Court feels differ*629ently, it is privileged to open the federal courts to provide additional relief. But we are not required to make our procedure conform to that policy..
Denecke, J., concurs in this opinion.ORS 138.550- (3) provides:
“(3) All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in his original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of the court, as provided in ORS 138.610, shall have no effect on petitioner’s right to bring a subsequent petition.”