“ I dissent. I think we should take this case and decide the important question it presents of the res judicata effect of a federal habeas court's determination that evidence used to obtain a state court conviction was improperly admitted because it was the fruit of an unconstitutional search and seizure.
Petitioner was convicted in Virginia state court of unlawful possession of narcotics seized from his person after his arrest when he entered the apartment of another during a lawful police search of the apartment for narcotics. ”

“ On the other hand, failure to give res judicata effect to habeas judgments determining as in the present case specific factual issues, may seriously undermine the writ: a State would have no incentive fully to litigate a question in the habeas proceeding if it could always relitigate the question on retrial. Moreover, in the present case, the State offered no reason for its failure to adduce at the first proceeding evidence concededly available at that time. No policy is served-and overburdened judicial resources are wasted-by needless relitigation of issues already fairly decided. ”

“ Litigation is needless if, by fair process, a controversy has once gone through the courts to conclusion. * * * And it has gone through, if issues, that were or could have been dealt with in an earlier litigation are raised anew between the same parties.' Angel v. ”