WILLIAM E. DOYLE, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Involved herein is an appeal from the denial of a writ of habeas corpus by the United States District Court for the District of New Mexico. The allegation was and continues to be that the defendant was deprived of his constitutional right against self-in crimination in the state court of New Mexico.
Appellant Claudio Fernandez was convicted and sentenced of second-degree murder with enhancement for use of a firearm in the New Mexico state courts. This conviction was affirmed by the New Mexico Court of Appeals and further review (both on appeal and by post-conviction writ) was denied by the New Mexico Supreme Court.
A writ of habeas corpus was filed in the United States District Court. The writ of habeas corpus was there denied after a review by the United States Magistrate and the United States District Court. Review of this ruling is sought by review in accordance with 28 U.S.C. § 2253.
The facts of the case are as follows. This defendant was initially charged with voluntary manslaughter in connection with the death of his wife, Patsy Fernandez. On June 23, 1978 he entered into a stipulation with the state. Contained in the stipulation was a provision which called for the defendant to submit to a polygraph examination administered by the state. The defendant was unaware of the significance of this device. The defendant had been charged with manslaughter and this same agreement provided for the administration of the polygraph test and for its admission at his trial on the manslaughter charge.1
[560]*560The defendant testified that his attorney, Mr. Natelson, had met with him only briefly before the test and had failed to explain that the polygraph test could be used against him. On the contrary, he testified that Natelson led him to believe that he was required to take the test; that the test was routine. It is important to note that this original attorney failed to explain the mechanics of the test and its consequences. Indeed the attorney was not present when it was taken. The defendant also testified that he did not understand either the stipulation or the polygraph test itself. The evidence also showed that the defendant’s knowledge of English was limited.
Mr. Natelson also testified at the trial at the behest of the state. He said he had not explained the mechanics of the polygraph examination. He also testified that he had limited knowledge of this polygraph process; that he had seen only one such proceeding at a prior time. The polygraph examiner had been hired by the state. Also, he operated it on the state’s behalf.
The polygraph test resulted in the.filing of a more serious offense. On June 29, 1978, the defendant was charged and was arraigned on a more serious charge of murder with firearm enhancement. Mr. Natel-son withdrew from the case shortly after the arraignment on the murder charge. The public defenders were appointed by the court. They at once moved to suppress the results of the polygraph examination. This was grounded on the basis that defendant had not understood the polygraph stipulation or the questions which had been asked. The defendant had such a poor grasp of English that he was unable to understand the polygraph questions. But the trial court held a hearing on this motion and admitted the polygraph testimony. Its ruling was that the defendant’s English was adequate to understand the meaning of the stipulation and the questions asked during the polygraph examination. The record is replete with evidence as to the defendant’s lack of understanding.
During pretrial, counsel for the defendant and for the state had entered into a stipulation which provided for disclosure and discovery.2 One of the provisions stipulated that each party be given notice of all witnesses who would testify. The state broke this agreement because it called two witnesses not on its endorsed list.
The state failed to identify Tom Cruz and Tina Martinez. Cruz was called the second day of the trial. The defendant objected, claiming that he was unable to investigate the witness or his testimony. The state advised the court that it intended to also call Martinez. The state advised the court that it would turn its report on the testimony of both Cruz and Martinez over to defense counsel. The court allowed both witnesses to testify and ruled that defense counsel would have an opportunity to interview both witnesses before they testified. Both witnesses testified that they had seen the defendant on a road on June 4, 1978. This testimony was pertinent to the question of whether the defendant had told the truth as to his whereabouts to the investigating officers.
[561]*561On March 17, 1978, the defendant was convicted of second-degree murder by a jury. He was sentenced to a term of not less than 15 nor more than 55 years.
After exhausting his New Mexico state remedies, the defendant sought but was denied habeas corpus relief in the United States District Court.
The strange proceedings described above brought about the equivalent of a detailed confession.
The waiver of the accused’s right against self-incrimination and the conviction were carried out without the slightest warning to the accused. It also brought out a new charge — one which was grossly more serious than the original manslaughter case. But beyond that it brought about a sentence of great magnitude — 15 to 55 years. In addition he was forced to take a polygraph test — a procedure about which he had no understanding and which introduced evidence which had not been possible.
The defendant raises two issues on appeal. The important contention is whether the trial court erred in admitting the polygraph testimony.3
This polygraph examination led to the filing of the murder charge and it brought about the grossly more serious sentence mentioned above. The defendant argues that his inability to comprehend English prevented him from understanding the polygraph stipulation, and that therefore the stipulation was not a valid waiver of his right against self-incrimination.
Defendant argues that his decision to sign the polygraph stipulation was essentially a decision not to object to inadmissible evidence. But worse than that it amounted to a waiver of consent to waive his right against self-incrimination. Unquestionably the defendant made his decision to sign the polygraph stipulation without knowing that he was thereby convicting himself; with the advice of his then counsel. He did not have “sufficient awareness of relevant circumstances and likely consequences,” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970), all of which is required for a valid waiver of a constitutional right. Our reading of the record convinces us that the defendant was unable to understand either the polygraph stipulation or its consequences. There is ample evidence which supports his meagre grasp of English. His lack of understanding of English is apparent from the attached appendix. Had he understood the workings of the polygraph test he would not have participated. This coupled with his language problem resulted in his conviction.
Because the defendant was unable to speak and understand the English language fluently, it was imperative that his attorney explain to him the possible consequences of taking the polygraph test. This was not done here. We do not dwell on the issue of the adequacy of counsel. Rather, we view the failure of counsel to apprise the defendant of the implications of the polygraph as another indication that the defendant’s waiver lacked an intelligent conclusion, if not from him, from his attorney.
The trial judge held a hearing on the motion to suppress the polygraph and determined that the defendant’s familiarity with English was sufficient for him to understand the stipulation. Factual issues such as the claimed inability to understand English are properly decided by the trier of facts. State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (1976). But whether there was an intelligent waiver of his constitutional rights against self-incrimination at the time he stipulated to the polygraph examination is a question of law and fact which requires a full examination of all the circumstances involved. When such mixed questions of fact and law are presented to federal habe-as corpus courts, the federal judge need not defer to the legal determinations of a [562]*562state trial judge. Rather, “ * * * the (Federal) Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication to the federal judge.” Hance v. Zant, 696 F.2d 940, 947 (11th Cir.1983), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), quoting Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). Our reading of the record indicates that the federal district court’s legal conclusion that the defendant’s waiver of his right to self-incrimination was made knowingly and intelligently was clearly erroneous. The totality of the circumstances indicate that the defendant did not understand English well enough to comprehend the consequences of the stipulation.
The Supreme Court has clearly ruled that the violation of fundamental constitutional rights is a highly sensitive matter which is not readily waived. This has been emphasized on numerous occasions. The leading case is Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In a stellar opinion by Justice Black the high importance was brought out. The Court said: “ ‘[Cjourts indulge every presumption against waiver of fundamental rights,’ and ... ‘do not presume acquiescence in the loss of fundamental rights.’ ” Id. at 464, 58 S.Ct. at 1023 (citations omitted). In deciding whether the defendant did validly waive his right against self-incrimination, Zerbst directs us to evaluate “... the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Id. We may find a waiver of the defendant’s fundamental right against self-incrimination only if the record clearly demonstrates “an intentional relinquishment or abandonment of a known right or privilege.” Id.; see also North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979).
It is impossible, on the basis of the record before us, to find an intentional and intelligent waiver of these all important rights, particularly a knowing intent to waive his right against self-incrimination. Defendant’s English is known to be too limited for us to presume that he could fully understand the terms of the stipulation he signed. Moreover, the record establishes that defendant’s original counsel never provided him with enough of an explanation of the mechanics and implications of the polygraph examination to permit him to make an intelligent decision as to whether to sign the stipulation. Under these circumstances, we hold that the district court’s finding of an intelligent and knowing waiver is clearly erroneous, and that defendant did not validly waive his constitutional right against self-incrimination.
We reverse the district court’s decision and remand this cause to that court with directions to issue a writ of habeas corpus unless the defendant is provided with a new trial.
APPENDIX
The following passages from the record reflect Mr. Fernandez’ limited proficiency in English.
DIRECT EXAMINATION
BY MR. GALLEGOS:
Q Could you please state your name?
A Claudio Fernandez.
Q (By Mr. Gallegos) Where have you been living?
A New Mexico and Colorado.
Q Where were you raised, Mr. Fernandez?
A In Taos.
Q Where exactly in Taos were you raised?
A In Valdez.
Q Is that a big city or a small city?
A It’s a little town.
Q Do you live on something that might be classified as a ranch?
[563]*563A Well, just about everything is ranches, small ranches there.
Q Did you go to school?
A I did go; but the little I went, I didn’t learn anything.
Q What school did you go to?
A I went to Valdez and Arroyo Seco and here in Taos.
Q Okay. What language, when you were living and growing up here in Valdez, was spoken when you were growing up at home?
A Spanish.
Q Did anybody at your home ever speak in English?
A No, except my brother, but that’s after he finished school now.
Q Do you speak any English?
A A little bit, not much.
Q How much English do you figure that you can speak?
A Well, very little. I don’t understand much.
Q Do you understand simple things?
A Not all of them because I didn’t go to school.
Q Do you understand what a polygraph examination is?
A No, I have never understood.
Q Did you take a polygraph examination just recently?
A Yes. But they didn’t tell me anything whether I had to take it or not; like, I had never taken an examination like that before.
Q Who told you to take it?
A Stephen Natelson.
Q When did he tell you to take it?
A About two weeks after I had been incarcerated.
Q Was he your lawyer?
A Yes.
Q Exactly what did he tell you about the examination?
A That I had to take it.
Q For how long a time did you talk to him at that time that he told you that you had to take the examination?
A About three or four minutes.
Q Now, are you certain that you understood when he told you — when you claim he told you that you had to take that examination?
A Well, I didn’t understand because I had never taken an examination like that before; and I didn’t understand what he wanted.
Q Is it possible that he could have been saying that you could take it or not if you wanted to?
A Well, he didn’t tell me none of that. He just told me to take the test and sign the paper.
Q How many times did you talk to Mr. Natelson during the time that you were expecting — that you were in jail?
A Two times.
Q Did you talk to Mr. Natelson prior to taking the polygraph examination?
A Yes, because he wanted me to pay $300.00 for the test.
Q How soon prior to the time that you took the polygraph test did you talk to him?
A He just called me in the afternoon and he asked me if I had $300.00; and I told him no.
Q Did you have a conference with Mr. Natelson in regard to the taking of the polygraph test?
A No.
Q Did you have a conference with anybody prior to having taken the polygraph test?
Q Did you know Mr. Galbreth?
Q Do you know the person that conducted the polygraph test?
A No, I had never seen him before. Well, I had never seen him.
[564]*564Q What was the nature of your conversation with the person that gave you the polygraph test?
A He asked me some questions which were eleven; and then he mentioned the fan, which I didn’t understand.
Q Did you understand anything that went on in that room when you took the polygraph examination?
A No, not.everything.
Q What did you understand?
A Well, only that he was going to ask me some questions.
Q Did he tell you the nature of those questions?
A He told me that the machine was used for — so he could tell whether he was telling — whether the Defendant was telling the truth or lies.
Q Okay. Did you talk to him at all in Spanish?
A I spoke partly in Spanish and partly in English, a few English words that I knew.
Q Have you ever taken any other schools in regard to learning how to speak English?
A Yes. I went to one in Denver for— an opportunity school for three months.
THE WITNESS: (In English) Three weeks.
THE INTERPRETER: Three weeks, sorry-
Q (By Mr. Gallegos) And did you learn anything from there?
Q What kind of work do you do?
A I’m a rancher, or I work on a ranch.
Q Do you work out of town sometimes?
Q And what do you do when you work out of town?
A I wash dishes in a few restaurants here in Taos.
Q do you work in Wyoming?
A Yes. I’ve worked on ranches over there and sheepherding.
... And this motion can be heard with the same witnesses. So, I’m asking the Court to allow me to present evidence on both these issues by the same witnesses. Some are going to testify as to both issues; some as to only one.
THE COURT: Okay. Call your witnesses.
MR. GALLEGOS: Yes, sir. I call Erac-lio—
THE COURT: You’ll have to get them yourself; we don’t have a bailiff.
MR. GALLEGOS: Okay.
THE COURT: Will you raise your right hand?
(The witness was sworn by the Court.)
THE COURT: Have a seat, sir. Get just as close as you can to this microphone.
THE WITNESS: Thank you.
MR. ERACLIO MARTINEZ,
called as a witness by and on behalf of the Defendant herein, having been duly sworn, was examined and testified as follows:
A Eraclio Martinez.
Q And what is your present address?
A Arroyo Seco.
Q And how long have you lived in Arroyo Seco?
A I’d say 43 years — 44 years, about.
Q Have you lived there all your life?
A Forty-four years of it.
Q What is your occupation?
A I’m a small farmer.
Q How big of a place is Arroyo Seco?
A I’d say the population is about 500 voters.
[565]*565Q Okay. Now, do you know or have you come in contact closely with other people throughout the county?
A Prom where?
Q From the County of Taos.
Q Okay. Are you acquainted with Mr. Claudio Fernandez?
A Yes, sir.
Q And what is the nature of the acquaintanceship you have with Mr. Fernandez?
A The nature?
Q Yes.
A Well, I’d think I’ve known him as a fairly good citizen, good behavior, was an alcoholic. And he used to work for me off and on and was a good worker. And that’s about all I can say.
Q Okay.
A Come from good, decent people.
Q In your relationship with him and your work — he worked for you; is that correct?
A Right.
Q Now, did you converse with him and give him orders and have him do work for you and different tasks and chores that he had to do for you?
A Tell me again, sir.
Q Okay. You ordered him to do different things for you; is that correct?
Q Now, what language did you talk to him in?
A Huh?
Q What language did you use?
Q Okay. Do you mostly speak in Spanish to most of the people?
A Most of the time, yes, sir.
Q Okay. How far away from you did Mr. Fernandez live?
A I’d say that’s between four or five miles, I’d say.
Q Okay. Now, did you ever attempt, at any time, to talk to him in English?
A No, only in Spanish.
Q Okay. Why is that?
A Well, that’s my language. And I know pretty well that I’m not a very good English talker. Besides, he was worse. He couldn’t understand very well to me. I knew that. So, there was no use for me to talk in English to him.
Q Okay. Do you have an opinion as to whether or not he understood when anybody talked to him in English?
A What?
Q Do you think he understood when somebody spoke to him in English?
A Hardly any. Hardly any to me. I don’t think there was much of that. The only time he’d talk to get a little vodka at work when he was a little half drunk. But he wasn’t that much to understand. I couldn’t even understand him very well, either, myself. I didn’t want to talk to him in English because I knew I couldn’t get along with him that way. I couldn’t understand his English.
Q Okay. Do you know where he worked other than when he worked at your place?
Q Do you know where else he worked?
A Well, yeah. I guess he worked several places here and there with some of the Spanish people, chopping wood and a little bit of work like sometimes he’d help me like bring me wood, sometimes chopping wood, sometimes farm, work like that, irrigating. That’s about all he’d do with me and several other people that I know around the vicinity.
Q Okay. Are you aware of him having worked out of the state?
Q Do you know that he worked out of New Mexico?
A Out of New Mexico?
Q Pardon?
[566]*566Q Yes, sir.
A Yeah. Well, I understand that he used to work in Wyoming and Craig, I think, herding sheep.
Q Okay. Now, in your occupation there and your work that you do, do you have any contact with a number of people? About how many people do you happen to contact on a daily basis?
A I guess — the people he used to work for?
Q No. No. I’m sorry. About how many people do you think you talk to during a day’s work, let’s say?
A I don’t think, sir, I’d be able to tell you that because—
Q But do you talk to many of the people that live around Arroyo Seco?
Q Okay. Do you ever talk about the case against Mr. Fernandez at this time?
A No, sir.
Q Is that the Taos paper here?
A Right. Taos News.
MR. GALLEGOS: Okay. Thank you very much.
THE WITNESS: You’re welcome.
THE COURT: Wait just a minute, senior. Any cross?
MS. LAMB: No questions.
THE COURT: You may step down.
THE WITNESS: Thank you, sir.
THE COURT: Can this man go home?
MR. GALLEGOS: Yes, sir.
THE COURT: You may go home, sir.
THE WITNESS: Thank you, Your Hon- or.
THE COURT: Call your next witness.
Will you raise your right hand and be sworn?
THE COURT: Be seated, sir. Get real close to the microphone, like that.
MR. RAYMOND TRUJILLO,
called as a witness by and on behalf of the Defendant herein, having been duly sworn, was examined and testified as follows:
A Raymond Trujillo.
Q Mr. Trujillo, what is your present address?
A Box 2264, Taos.
Q And what is your present occupation?
A I’m unemployed now.
Q What was your occupation before you became unemployed?
A I was a counselor for the Pre-trial Diversion First Offenders, alcohol related and drugs.
Q Okay. And when did you work there? When was the last time you worked at that?
A Last June. This June was the last. I worked there for a whole year as full-time counselor. And now I’m just a volunteer alcoholism.
Q Do you work for La Tuatah?
Q Okay. And you work for that organization. Have you ever come in contact with a Mr. Claudio Fernandez?
A Yes, I did.
Q And what was the nature of that contact that you had with him?
A I was his counselor and — because he had a drinking problem.
Q Okay. Now, in your activities as his counselor, did you ever ascertain whether or not he understood any at all or any portion of the English language?
Q Do you have any — in your activities as his counselor, did you talk to him in Spanish or in English?
Q And why was that?
[567]*567A Because he had difficulty understanding English.
Q Okay. Now, did you ever try to talk to him in English?
A At times I did; but he — he usually used to ask me what I had told him.
Q Okay. What about forms and papers? Did you ever have him read and did he ever have to fill in any forms?
A I used to ask him and he used to give me information.
Q Did you ask him in English or in Spanish?
A I asked him in English, but I had to repeat in Spanish also.
Q Okay. As far as you’re concerned, could he really understand what was being told if asked of him in English?
A Not really.
Q Okay. Do you believe he might have understood simple things like—
A Simple English, maybe; but not big words.
Q Okay. Now, in your capacity as a volunteer alcoholism worker, do you come in contact with a number of people during—
A Yes, I do.
Q And can you hazard an estimate as to how many people you might come in contact on a daily basis?
A Well, I — all the people that I contact are people — Spanish speaking people. And they, themselves, have difficulty of expressing themselves in English.
Q Can you state your name, please?
A Alex Coca.
Q Mr. Coca, what is your present occupation?
A Alcoholism counselor.
Q And where do you work?
A At Taos County Mental Health Counsel Alcoholism Program.
Q Okay. Now, are you familiar with Mr. Fernandez, Claudio Fernandez?
A I know him, yes.
Q Now, have you been his counselor?
Q Now, in regard to your job — is your job specifically at working with people who were Spanish speaking and unable to speak English?
A My job descriptions call for Spanish speaking person, yes.
Q Okay. Now, in your experience with counseling Mr. Fernandez, did you ever ascertain whether or not he could speak English?
A Never. Never occurred to me.
Q Did you ever speak to him in English?
A At some — sometimes, yes.
Q. But whenever you spoke to him in English, did you ever have to repeat yourself in Spanish?
A Definitely, yes, to get the message across.