445 P.2d 749

#### STATE of New Mexico, Plaintiff-Appellee, v. Henry PINEDA, Defendant-Appellant.

No. 231.

Court of Appeals of New Mexico.

Sept. 27, 1968.

E. Ray Phelps, Roswell, for appellant.

Boston E. Witt, Atty. Gen., Gary O’Dowd, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

WOOD, Judge.

Denied post-conviction relief under § 21-1-1(93), N.M.S.A.1953 (Supp.1967), defendant appeals. He contends that evidence was erroneously admitted at his trial because seized without a valid search warrant. The circumstances of this asserted illegal seizure were known to defendant at his trial. Accordingly, the question of use of illegally seized evidence is not a cognizable issue under § 21-1-1(93), supra. State v. Barton, 79 N.M. 70, 439 P.2d 719 (1968) ; State v. Fines, 78 N.M. 737, 437 P.2d 1006 (1968).

Although defendant may not obtain a review of the seizure issue in a post-conviction proceeding, a companion case, which was a direct appeal, decided the issue on its merits. State v. Sedillo, 79 N.M. 289, 442 P.2d 601 (1968).

The order denying relief is affirmed.

It is so ordered.

SPIESS, C. J., and OMAN, J., concur.