*1 1129 York, 197, 210, process requires New 432 U.S. Patterson v. Isaac receive the bene- 2319, (1977); interpretation. 97 S.Ct. Bern fits of that court’s Accord- 515, (6th 583 F.2d 524 Egeler, er v. Cir. ingly, I judgment concur in the court J., 1978) denied, (Engel, dissenting), cert. awarding the writ. 955, 347; 354,

439 99 S.Ct. 58 L.Ed.2d U.S. Garoiina, v. North 432

cf. Hankerson

233, 2339, 245, 97 2346, 306, 53 L.Ed.2d Blackmun,

316, J., concurring, Ohio Su

preme interpreted O.R.C. 2901.-

05(A) place upon so as going forward with evi ISAAC, Petitioner-Appellant, Lincoln dence sufficient to raise the defense. State v. 103, Robinson, 47 Ohio St.2d 351 N.E.2d ENGLE, Superintendent, Ted (1976). 88 Respondent-Appellee. expressed by As a unanimous Court in

Hankerson, placement definition No. 78-3488. proof is a aspect burden of fundamental United States Court of Appeals, truth-finding process of a criminal Sixth Circuit. Hankerson, supra, 432 U.S. at 243- 44, 2345, at S.Ct. at L.Ed.2d 315-316. Argued 4, June 1980. 370-72, Winship, See also at Decided Dec. 1980. 1075-1976, S.Ct. at 25 L.Ed.2d at 378 As Modified Dec. (Harlan, J., concurring); Speiser Randall, 513, 525-26, 357 U.S. 78 S.Ct. (1958); generally, see Jeffer- Defenses, Stephen, Presumptions

ies & Law,

Burden of in the Proof Criminal (1979). Protecting

Yale L.J. truth-

finding precedence function must take over expressed

a state’s concerns in a such,

contemporaneous objection As rule.

denying to a defendant a trial under what Court has concluded to proper

be the allocation of the burden of

proof to a due amounts denial of

law.

Redefining proof placed defendant,

upon a whether it be a new rule or by statutory a new dimension, of constitutional

has a impact upon substantial a criminal truth-finding

trial’s function. such situ-

ations application imperative. retroactive

Hankerson, supra, 432 U.S. 53 L.Ed.2d quoting Ivan V. York, City 204-05, of New 1951, 1952, 32 L.Ed.2d

Since the Ohio decision Court’s significantly Robinson affects the burden defendant, placed upon to *2 Edwards, Jr.,

George Chief Clifton opinion. filed

Judge, concurred and Jones, Judge, Circuit

Nathaniel R. opinion. and filed

curred Judge,

Lively, dissented Circuit Judge, Engel, Circuit opinion in which

filed

joined. BROWN,

BAILEY Judge. appeal, this we are confronted with the difficult task of determining the federal consequence, any, if of two decisions Court of Ohio. One of these decisions for the first *3 time construed, an place Ohio statute to the bur- den on the state in criminal cases of defenses, absence of affirmative the other decision held that only those de- objected fendants who had at the trial to jury placing the burden on de- prove fendant an affirmative defense could avail appeal themselves on of this interpretation of the statute.

Prior to Ohio followed the tradition- al common law rule that the defendant in a criminal ease had the burden of going forward with evidence to create an issue as to an affirmative defense but also had the ultimate burden of proving such affirmative defense by preponderance Seliskar, evidence. State v. 35 Ohio St.2d (1973). N.E.2d 582 As of 1, 1974, January however, a new statutory provision became provision, effective. That McKirahan, Jay James R. Kingsley, Cir- codified as Ohio Revised Code 2901.05(A), cleville, Ohio, petitioner-appellant. stated: Isaac, Lincoln pro se. (A) Every person accused of an offense presumed proven until guilty innocent Brown, Gen., Atty. William J. B. Simon beyond doubt, a reasonable and the bur- Karas, Activities, Columbus, Div. of Crim. den upon prosecution. Ohio, for respondent-appellee. The burden going forward with the Crim, Gary W. evidence Atty. for Ohio of an Prosecuting affirmative defense is upon the accused. Atty’s Assn., Ohio, Dayton, curiae. amicus The language of the new statute was not Law, Aynes, Richard L. School The free of ambiguity. As a result University Akron, Akron, Ohio, for ami- initially was not considered to any effect cus curiae/Ohio Public Defender Associa- change in the previous common law rule. Appellate tion and Review Office. As late as Supreme Court of Ohio reaffirmed at least in a principle dictum the EDWARDS, Before Judge, Chief that a defendant must bear the burden of WEICK, LIVELY, ENGEL, KEITH, MER- proving affirmative defenses prepon- RITT, BROWN, KENNEDY, MARTIN and derance of Rogers, the evidence. State v. JONES, Judges, sitting En Banc. 43 Ohio St.2d (1975).1 330 N.E.2d 674 Rogers, 1. In upon Court stated: forward with the evidence the accused (R.C. 2901.05[A]) using issue The defense of reasonable force preponderance necessarily effect allegation evidence. See State v. a citizen arrest involves an Seliskar, supra, is, justification, Ohio St.2d excuse or N.E.2d therefore, (R.C. an affirmative defense 2901.- places going 05[C][2]> him- appellant Humphries could not avail

II interpretation of the statute self of this Isaac, in- was appellant, Lincoln objected to the he had not because At his assault. for felonious dicted in Ohio ground, relying on Ohio to the on this had acted in trial, that he Isaac asserted court, nevertheless, 30. The Criminal Rule trial court instructed self-defense. opinion, appellant held that in the same by Isaac that it any objection jury without trial, who had had a bench could Meyer, Isaac to demonstrate incumbent on question appeal raise the effectively of the evi- preponderance aby apply did not to such Rule 30 since Criminal guilty of the found Isaac dence. apply to so has continued trials. Ohio aggravated as- offense of lesser included objection rule. State v. contemporaneous six to a term of Isaac was sentenced sault. Long, 372 N.E.2d 804 53 Ohio St.2d imprisonment. years to five months Isaac, any appeal Prior *4 corpus relief sought habeas In Isaac Robinson, Ohio, v. 47 Ohio in State Court of reaching Without in federal district court. (1976), concluded 351 N.E. St.2d claim, the court merits Isaac’s district of changed previous had that § court, petition. relying The allocating dismissed his law rule ly accepted common Sykes, v. Wainwright cases. The on proof in criminal burden of January (1977), held that 2901.05(A), effective 53 L.Ed.2d court construed § majority corpus precluded rule that review was adopt federal habeas coming procedural ground, the burden of state adequate a defendant an evidence to create with sufficient rule that the failure to specifically, forward Ohio and any as to an affirmative defense er- object jury an issue to a instruction waived presented, that once such evidence ror in such instruction. beyond demonstrate

prosecution then must (decided F.2d 1122 Engle, 646 In Isaac v. guilt doubt the defend a reasonable 8, 1980) panel a of this court February disproving extent of such ant even to the court, of the district reversed decision Interpreting 2901.- defense. affirmative Judge writing concurring opin- a Celebrezze manner, 05(A) Supreme Court of in this opinion was on panel ion. The focus of the jury placing any held that instruction of its constitutionality of Ohio’s use an affirmative de the burden of a means contemporaneous objection rule as prejudi constituted fense on the defendant limiting the benefits the Robinson cial error. concluded, panel opinion prel- decision. Robinson, appealed Isaac his Relying on Wainwright Sykes was iminarily, Appeals for Pick- conviction. The Court of applicable and therefore there simply not County held that Isaac had waived away was to consideration of this constitu- no bar any in the instruction on burden error claim not direct- tional claim such since failing to that instruc- proof by validity ed at the substantive Accordingly, tion. it affirmed Isaac’s allocating proof. appeal Isaac thereafter filed an viction. claim, As to the merits of the all three appeal That Court of Ohio. determined that panel members of the of a was dismissed in 1977 for lack substan- grant Isaac the benefits of Ohio’s failure to question. tial constitutional represented proc- a denial of due Robinson divided, however, panel as to the ess. The day same that it dismissed Isaac’s On the appropriate reaching basis for such a con- Ohio reaf- appeal, Court of 2901.05(A), Judges Phillips clusion. Peck and deter- interpretation of § firmed contemporane- prove mined that Ohio’s use of its placing the burden on the state to defenses, objection arbitrary capri- rule was and that it had ous absence of affirmative a denial of federal due Humphries, 51 cious and therefore made in Robinson. State of this case At under the circumstances 364 N.E.2d 1354 Ohio St.2d objection to time, however, there was no basis for the court held that because the same IV at the time of Isaac’s jury instruction Celebrezze, adopting a some- Judge Wainwright Sykes, approach, what maintained that the broader L.Ed.2d Su- proof is placing of the burden of so critical preme petitioner’s a held that failure truth-finding process change in the that the comply procedural with a rep- state rule allocating of the law independent adequate resents an and state application” burden must have “retroactive corpus ground barring habeas review of a pro- any without limitations based showing absent a constitutional claim cedural rules. noncompliance cause for the a showing prejudice resulting from the constitution- rehearing for en granted petition We Court, however, al violation.2 declined important banc to consider issues what precisely define would constitute presented this case. and “prejudice.”

“cause” That task was left development subsequent cases. Ill “prejudice” While the “cause” stan- contempo- use of a recognize We that the of Wainwright dards still remain somewhat objection raneous rule de- undefined, we conclude the circum- deny vice to the retroactive satisfy stances this case both those important change benefits of in state standards. arbitrary law is arguably capricious when there did not exist reasonable basis trial, At the time Isaac’s there *5 objection for an time of trial. at the the jury was no indication that the instruction Court, however, The Supreme has at least given by the court contrary trial was to suggested procedural such of a that a use law. traditionally placed state Ohio had rule a may limiting be valid means of the proving the burden of affirmative defenses new retroactive benefit of a constitutional Moreover, Supreme on the defendant. the principle. v. North Hankerson Court of Ohio in a had dictum stated that n.8, n.8, 432 244 97 U.S. S.Ct. 2345 statute, recently the enacted Ohio Revised Moreover, (1977). 53 306 mat- L.Ed.2d as a 2901.05(A), previ Code the change did comity, ter of states are entitled some to v. Rogers, ous common law rule. See State the that they apply deference in manner supra. with such Confronted well-estab their procedural own rules. We are there- law, lished have futile would seemed hold, panel opin- fore hesitant as the did jury Isaac to a instruction allocat ion, contemporaneous that this use of a ing to the the of proving defendant objection to limit rule the retroactive bene- self-defense. A defendant cannot be ex is, fits statutory interpretation of a new pected predict change interpreta in the ipso facto, process. violative of due tion of state law when the law is so well-es We appropriate believe the more fo- has tablished and there been no hint of a claim, cus is underlying Ohio, on the in this case change that law. See O’Connor v. validity the in- jury constitutional 385 87 U.S. S.Ct. 17 L.Ed.2d 189 given (1966). Moreover, structions not, Isaac’s trial as it was as will be light sidered in and Humphries. dealing Robinson seen hereafter in with the merits of context, In this question, claim, the threshold Isaac’s constitutional until later then, limiting is not whether the state’s decision of the Court of Ohio in Robinson, statutory retroactive benefits a new supra, interpreting Ohio Revised interpretation through proce- the use of a placing Code the burden on dural but prove rule is constitutional whether that state the absence of affirma defenses, state procedural effectively precludes rule tive could Isaac know that corpus federal habeas review of the under- to the violated federal due lying Therefore, process. legitimate claim. Isaac had Sowders, Hockenbury 2. See also F.2d 620 (6th 1980). 111 Cir. demonstrating any object to the failure to for his

cause degree of proof. culpabil- which decreased the allocating the burden of fact instruction ity. interpretation Mullaney, Under this clear. resulting prejudice required to prosecution would be element a critical The burden of beyond a reasonable doubt absence trial. fact-finding process in a criminal raised any affirmative defense the de- Winship, See In re fendant, regardless of whether affirm- (1970). An error L.Ed.2d an element of negated ative defense burden, shifting of that here the allocation as defined state law. crime proving ab burden of from the a broad Such a reasonable beyond sence of York, rejected in v. New Patterson prove self-de the defendant doubt 2319, evidence, preponderance by a fense decision, upheld In that Court of a profoundly affects the fairness basic validity of a York statute allocat- New cases, prejudice In such defendant’s proving ing to the defendant the burden presumed. Rachel v. Bordenkirch may be while person that he had he was killed er, (6th 1978).3 590 F.2d Cir. of extreme emotional under influence Having “preju- found both “cause” and distress, saying: dice,” precluded under Wain- we are not adopt We thus as a decline to constitu- considering Sykes, supra, wright v. from imperative, operative countrywide, tional process it was a denial of due whether disprove beyond rea- State must place on Isaac burden of every constituting any sonable doubt fact he in self-defense. had acted and all affirmative defenses related culpability accused. of an Tradition- V ally, process required safeguards 358, 364, the most basic Winship, In re observed; balancing of more subtle socie- ty’s against interests those of accused held re- that due *6 legislative have been left the to branch. quires prosecution prove beyond that the We therefore will not disturb balance “every necessary doubt fact to reasonable previous holding in struck cases underlying prin- the crime.” constitute prosecu- requires Due Process Clause ciple Winship is heavy clear. A prove beyond tion to a reasonable doubt imposed proof must be in criminal cases all of the included in the elements defini- in minimize of inno- order to the chances tion of the of which defend- offense being while persons cent convicted. But charged. ant of the Proof nonexis- clear, principle Winship the application tence of all affirmative defenses has nev- proved somewhat in determin- difficult required; constitutionally er been and we ing prosecution to what extent must perceive no to fashion such reason a rule prove de- any the absence affirmative statutory case it to the apply in this and by fenses raised a defendant. issue here. Wilbur, Mullaney 210, 97 Id. at S.Ct. at 2327. Su- preme Mullaney Court held We and unconstitutional Maine construe Patter placing on the together process law that due re son hold that, proving killing person, quires in he had prove that a state all elements of the crime, of passion. acted in the heat The Court crime as the has defined the suggest not, seemed to could limits process that a state there are due on the process, may with due shift which shift consistent extent a state the bur- by testimony 3. Since at trial Isaac made to the therefore Isaac his and need rely presumption. substantial issue as his self-defense conten- on such tion, prejudiced by he was in fact the court’s by way ing deadly assault), in which it force (aggravated den to defendant and crimes, Moreover, may, a state yet defines but that act self-defense. while place according Patterson, process, sistent with due the burden and Mullaney as we noted, defenses that have have process defendants there are due limits to traditionally de- been treated affirmative the extent a state may redefine an negate fenses if such defense does not the elements of and thereby a crime reallo- Perini, defendant, proof element of crime. Krzeminski v. cate the burden of to the (6th 1980). 614 F.2d 121 Cir. failing Patterson holds that in to make ab- sence of an self-defense element

VI aggravated crimes felonious or assault as 2903.12, defined 2903.11 did charged § § Isaac and indictment with feloni- process. not violate due ous assault under Code Ohio Revised 2903.11. This crime is defined § Although the defining statutes felonious statute as follows: aggravated did assault not make ab- Felonious assault sence of element crime, that, (A) person arguable enacting it is knowingly: No shall statute that was to place construed (1) physical Cause serious harm to anoth- burden on the state of absence of er self-defense, so Ohio had made it an ele- However, Isaac was convicted of the lesser Humphries, ment of the crime. In State v. aggravated included offense of assault un- supra, Ohio St.2d 364 N.E.2d der Ohio Revised Code 2903.12. This justices that, say one the Ohio did crime is defined the statute as follows: construing in so Ohio Revised Code 2901.- Aggravated assault 05(A), absence of affirmative had defenses (A) person, No while under extreme emo- been made an element of the crimes. brought on by tional stress serious J., (Locher, part concurring and dissent- provocation reasonably sufficient believe, part). however, that, ing in We force, using incite him into deadly Patterson, Mullaney proper under knowingly: shall Ohio, question having to ask is: Can (1) serious harm physical Cause to anoth- statute assumed the burden of with er respect self-defense, to absence of consist- with ently convict a defendant At trial was Isaac’s contention he by applying a different and lesser standard guilty any was not crime had because he proof. acted in self-defense. In this connection charged jury, trial court stated suc- As we Patter read that, cinctly, in order to establish de- this *7 son, are largely while states free to fense, it was he necessary by show the choose, they define crimes as fundamental that,

preponderance of the evidence in process require and due fairness therefore striking party, reasonably the other Isaac crimes, they prove the elements of the necessary believed that such action them, as the states have chosen to define protect great himself from bodily harm. beyond a reasonable doubt. We further that, The defense of self-defense as defined in conclude once a assumes at Isaac’s trial does absence proving burden of an affirm negate not doubt, element of the crime of beyond felo- ative defense a reasonable aggravated nious or assault assault as such and fundamental fairness therefore due require are defined in Revised process Ohio Code 2903.11 it meet the that it § burden and 2903.12. This is true since one view point § could chose to assume. From the (felonious assault) act knowingly practi or know- and process, fairness due there is no ingly and while under extreme requiring emotional cal difference between a state to brought distress by provocation prove beyond on serious crimes a rea the elements of reasonably sufficient to incite him us- doubt requiring into sonable to meet its 197, 2319, af- L.Ed.2d absence

assumed burden beyond (1977), the due clause of the United a reasonable defenses firmative that, commands that the bur- conclude in Isaac’s States Constitution Thus we doubt. proof clearly an trial, prove den of of criminal placing the burden on him intent — aggravated the evi- of Ohio’s assault law— preponderance of element by a placed prosecution. on the Here a denial of federal due be dence constituted proof was defi- burden of of self-defense process. placed the defendant. Criminal nitely on assault and self-de- aggravated intent of VII are, view, in irreconcil- my completely fense the decisions of Su Following require carry To a defendant able. in and Hum preme of Ohio Robinson Court require on self-defense is to legislature amended phries, the Ohio Ohio disprove him to criminal intent.1 2901.05(A) readopt so as to Revised § Code retroactivity to the and the cause and As law rule a defendant must the common prejudice by issues discussed prepon by any affirmative Wainwright Sykes, 433 U.S. retrial, any the evidence. On derance of (1977); see 97 S.Ct. consist Isaac entitled v. North 432 U.S. also Hankerson ent with law 1975 as construed in Ohio (1977), I 97 S.Ct. 53 L.Ed.2d 306 give other would ex Any Robinson. result join fully analysis Brown’s Judge careful post to the 1978 amendment of facto effect showing that is entitled to a new and Isaac 2901.05(A). Helgemoe, Breest v. See fair trial. Cir.), denied, (1st F.2d 95 cert. (1978); United JONES, Judge, NATHANIEL R. Williams, (D.C.Cir. 475 F.2d 355 States v. concurring. 1973). majority I concur the result. A Accordingly, judgment of the district agrees point: en banc Court on one court is case is remanded. reversed Isaac’s imprisonment in violation court is directed to order that district process of law. This result was reached custody unless Isaac be released from original panel. en banc Court retry chooses him within a reasonable agree precise not decid- does issues to be time to determined the district court. I ed as well as their correct resolution. reluctantly I separately write because be- EDWARDS, Jr., GEORGE CLIFTON opinion plurality lieve does concurring. Judge, Chief provide support its conclusion rationale this history New cases in the court explain disagreement Judge my and to with soul-searching have in as much resulted Kennedy’s dissenting Lively’s Judge thought this case. and debate opinions. express write to concurrence in the result Judge Bailey opinion Brown’s reached I. majority for the of the en banc court. however, view, Winship, 2901.05(A) Ann.

my under In re Ohio Rev.Code became January 25 L.Ed.2d 368 effective on 1974. In 1976 the Wilbur, held *8 Ohio Court that U.S. § (1975), required only to evi proffer L.Ed.2d defendants S.Ct. approval distinguished on dence sufficient to raise the affirmative cited with Robinson, York, of the in Patterson v. New 432 defense self-defense. State v. facts Winship, understanding exemplified in A of has con ess Mullaney In re 1. full this record standards as Wilbur, satisfactory v. v. New vinced that this case is not a Patterson me A the for en of inherent York. motion to vacate motion medium for decision the difficulties improvidently granted tangled the banc as in pertaining collision between Ohio’s laws consideration has, however, proc due to self-defense and federal failed. H37 (1976). process cognizable St.2d 351 N.E.2d 88 Ohio claims under 28 U.S.C. Isaac was convicted 1975. At Isaac’s 2254. jury trial was instructed that the defendant concurring panel The opinion stated that had the burden of the affirmative jury Isaac’s instructions could have been of defense self-defense. Isaac did not ob objected to at trial on principle enunci-

ject a jury to such instruction. The decision Wilbur, ated in Muliáney 95, 364 Humphries, St.2d State Ohio (1975).1 44 L.Ed.2d 508 How- (1977) N.E.2d 1354 limits the retroactive ever, correctly it upon relied Hankerson v. of application Robinson to defendants who North objected to jury at re instruction trial to hold that a state quiring to prove defendants self-defense. deny cannot full retroactive effect a a petition corpus Isaac’s for writ of habeas change substantially affecting the truth- challenges only use of contempo Ohio’s finding process of a criminal trial. objection raneous him deny rule the ben opinion rejects plurality The these two efit application of the retroactive of Robin rationales, plausible but offers none in their son. place.2

II. III. plurality opinion The defines the issue to Judge Lively’s dissent contends that can decided whether Ohio convict a Robinson court’s interpretation of 2901.- by a applying defendant different or lesser 05(A) require defendants to proffer proof required of than by standard evidence sufficient to raise a of defense plurality opinion statute. The holds it self-defense “merely reduces the quantum is “unfair” for a state not to meet proof necessary of to sustain such a de- However, proof burden of assumed it. Assuming Judge fense.” Lively’s interpre- we why. are not told the reasons correct, of tation Robinson is Isaac was justified apply- jury entitled to a if the ing a proof” “different or lesser of standard had a reasonable doubt as whether he required than that statute because Isaac acted self-defense he should be found not the jury Or, failed to guilty. state differently, this is Humphries, trial. supra. equivalent State charging of that the burden is on the state to of absence contemporaneous objection rule pre- self-defense beyond a reasonable doubt. supposes the alleged existence error Judge Additionally, Lively’s to be corrected. Isaac’s jury instructions result; of Robinson has an untenable were in accord with well-settled Ohio law proof the affirmative defense' Thus, panel’s time his trial. of self-defense is on neither decision held Ohio’s use of the contem- prosecution. nor the poraneous objection rule in Isaac’s case did not have “real Judge and substantial relation to Lively argues quan- also that “the sought ends to be attained proof necessary the use tum of to sustain the de- of” approach recognizes such rule. procedural This fense state is a judicial that state well decisions as as state rule” which the state need not follow. legislative However, subject change determinations are “quantum in the analysis scrutiny. This also necessary im- sustain the plicitly recognizes proc- state’s failure to self-defense” truth-finding affects the follow own rules raises due ess aat criminal holds Hankerson III, challenged 1. See discussion of in Part infra. law. Nor has Isaac consti- tutionality of the statute under which was he Thus, challenged constitutionality lengthy Isaac has convicted. discussion opinion plurality his instructions because Robinson V holds Parts and VI is dicta. *9 improper such as a of instructions were matter on legislature reduced the burden a retroactively must be change a that such relying upon affirm criminal defendant applied. self-defense, equiva as the ative defense of asserts that the Kennedy’s dissent Judge making lent of the absence self-defense contemporaneous ob- of Ohio’s application felonious an element of the crime of as review.3 The deci- rule bars federal jection opinion holds that sault. Thus the 72, Wainwright Sykes, sion in violated Isaac’s due State of Ohio (1977) holds that 53 L.Ed.2d rights permitting his conviction under by object to error at failure to a defendant’s placed upon which him bur instructions review not bar federal his will trial proving by preponderance den of a not to object and if he had “cause” viction had, matters as which evidence had prejudicial. is Isaac alleged error statute, proof. the burden of assumed jury instruc- object “cause” not Robinson, In St. State v. Ohio neither knew nor his trial. Isaac tions at N.E.2d 88 Ohio jury instructions have known that could 2901.05(A) specifi- construed O.R.C. § Robinson, under improper his trial were cally to consider constitutional ar- declined years his trial. There is two after decided Wilbur, guments Mullaney on based Isaac’s failure to ob- better “cause” for no 1881, 44 L.Ed.2d 508 jury that than ject to instructions Robinson, (1975). syllabus were at the time of his proper instructions holding court under contains the trial. practice, states: argues Kennedy mistakenly Judge In involving a criminal case the affirm- predicate Mullaney the decision self-defense, the ative defense of defend- jury instructions at his Isaac to only going ant the burden of forward the issue of the decided quality with of a evidence nature constitutionality the definition of a sub- defense, to raise and does sufficient offense. Neither Isaac nor the de- stantive establishing not have the such challenge Ohio’s defini- fendant Robinson preponderance of the evi- Isaac, well a substantive offense. as tion of construed.) (R.C. dence. 2901.05[A] argue the defendant in Robinson as I do read O.R.C. and the not were their inconsist- holding placing Robinson on the state a law, 2901.05(A). with a state ORC § ent equivalent burden which is the of its burden proving beyond doubt each reasonable LIVELY, Judge, dissenting. charged element of a offense. statute Judge respectfully Brown’s dissent. merely the state’s de- decision reflect recognizes may place that a state opinion guilty by that a verdict of not termination de an affirmative on may reason of self-defense be based “ev- long upon a so as it does fense defendant idence and quality of a nature sufficient require an es Robinson, supra. raise defense.” sential element of the crime. This is They requirement eliminate the former York, holding of v. New 432 U.S. Patterson preponder- established (1977). reducing 97 S.CL ance of the evidence. However, opinion Judge ap required permit quantum proof Brown self-defense, 2901.05(A),1 acquittal pears grounds to treat *inwhich O.R.C. § (A) Every person question how offense 3. “The of when and defaults accused of an is presumed guilty compliance proven can with state rules innocent until be- ques- preclude yond doubt, at a our consideration federal a reasonable and the burden of question.” Henry upon prosecution. is itself a tion Mississippi, federal The burden of 443, 447, going forward with the of an affirm- evidence 13 L.Ed.2d upon ative defense the accused. 2901.05(A), 1. Ohio Revised effective Code January provided:

H39 not a state did make determination that does not violate to require the necessary absence of the facts to sustain a prove defendant to the existence of these proved “must be plea of either or preponderance facts circumstances a Patterson, presumed.” supra, or 432 U.S. of the evidence. The does not reach a at 97 S.Ct. at 2329. of defense self-defense until it finds that all elements of an have offense been estab- I base this of Ohio’saction lished a beyond reasonable doubt. Thus understanding upon my of the nature of the there impermissible of shifting no the Patterson, defense of self-defense. In su- state’s burden. pra, Supreme the recognized Court type there is a of affirmative defense which Hankerson v. North seek negative any does not facts which 233, (1977), 53 L.Ed.2d 306 required prove the state is in order to require does not us to reverse the district convict; is, put it does not into issue court. In Hankerson the state court con- any of the elements offense. In- strued the of plea self-defense as putting in stead, an such affirmative defense consti- issue an element of the offense of murder— separate tutes “a issue.” 432 U.S. at the of element unlawfulness. a For trial at clearly 2325. This is true of require court to a prove defendant to self- self-defense under law. Ohio defense, defined, by preponderance thus a evidence, clearly the was a violation Poole, In 33 Ohio State St.2d the rule down Mullaney laid v. Wilbur. (1973), recognized N.E.2d Ohio the court Supreme Since the Court has defined that all affirmative defenses to criminal just self-defense is opposite way the Some, charges are the same. such as controverting Poole—as not an element of alibi, deny accident or existence one the charge does not control or more elements of an —Hankerson offense. Affirma- this jury charge Ohio habeas case. The tive put defenses such as these in issue an Isaac’s did trial not shift the burden of element of the and have no effect on any offense, as to element proof. burden burden is on the thus did not violate Winship-Mullaney prove every state to element of an offense rule. All that a occurred state beyond a reasonable doubt whether the is- court failed to follow a state joined sue is by plea guilty of not or by statute as was subsequently it construed reliance on affirmative defense supreme state court. No constitutional type which controverts the existence of a trial, error occurred my opin- at Isaac’s particular require element. To a defendant ion. an affirmative type defense of this would due process. be violation of perceive Nor do I viola- constitutional tion Supreme in the Ohio Court’s decision to Poole the Court of Ohio also limit the benefit of a retroactive application defined self-defense under Ohio law. It of its construction of the Ohio statute stated that the defense of self-defense ad- persons objected those who to an mits erroneous the existence of the elements of an Though instruction at trial. offense Ohio court independent ground but claims an interpreted O.R.C. such escaping It conviction. is in the nature way of a as to make plea civil the instruction Isaac’s confession and avoidance— it trial on prosecu- admits facts claimed affirma- erroneous, tion tive to establish an offense but relies on the Constitution of separate existence of a set the United States require of facts or cir- did not such a law recognizes cumstances as an construction. believe it was within the established, authority excuse. When this ex- excuse court which construed the empts liability. the defendant from As statute to determine the extent of retro- Supreme Court in recognized, Patterson application.2 active did not vio- Walker, In Linkletter apply held that the decision whether to a new holding retroactively largely *11 Speiser v. requiring be ranked as fundamental.” rights by to process late Isaac’s 513, 1332, Randall, state rule of 523 S.Ct. longstanding 357 U.S. by a [78

him to abide appellate review. 1340, (1958); obtain in order to 2 Leland v. practice L.Ed.2d 1460] Supreme Court de- 790, 1002, Shortly before 798 S.Ct. Oregon, 343 U.S. [72 Humphries, 51 Ohio v. St. termined in State 1007, (1952); Snyder v. 96 L.Ed. 1302] 95, to limit retroac- 1354 N.E.2d 97, 364 Massachusetts, 291 U.S. 105 S.Ct. [54 to its Robinson decision application tive 332, 330, (1934). 78 L.Ed. 674] objected to an who had those defendants 201-02, 2322. 97 432 U.S. S.Ct. instruction, Supreme Court erroneous judgment I of the dis- would affirm the by state appeared to invite such treatment trict court. constitutional errors.3 dealing in with courts dealing in with a option If a has this ENGEL, Judge, in joins the dis- Circuit it is surely not requirement, constitutional sent. to limit retroac- of due so violation merely which tive of decision benefit MERRITT, Judge, dissenting. a state statute. strues case, I that the merits of this believe On us Supreme reminded in Pat- Court The prohibits a state from Constitution guide which should of considerations terson eliminating justification of self-defense corpus habeas deciding federal courts in requires the state from its criminal law and involving administration states cases to as an element of the crimes justice systems: own criminal of their no such assault and homicide that self-de- saying preventing that goes It without justification exists. But I also fense believe dealing much more the with crime is and Judge Kennedy’s analysis Wain- it is of the than business States 2497, 72, Sykes, v. 433 97 S.Ct. wright U.S. Government, California, Irvine Federal (1977) 53 L.Ed.2d and footnote 8 594 381, 384, [74 Carolina, North Hankerson (1954) opinion), and (plurality L.Ed. 561] 2339, 2345, 53 L.Ed.2d lightly construe the we not should requires us to (1977) is correct and affirm upon to as intrude Constitution so reaching the the District Court without justice by administration the individu- merits. it Among things, al other is nor- States. power of the State to mally “within the KENNEDY, Circuit CORNELIA G. procedures laws regulate under its Judge, dissenting. out, including the burden of are carried petitioner’s Were I to reach the merits of producing evidence and the burden of claim, I would concur with persuasion,” its decision this re- However, Lively. I would Judge affirm proscription gard subject is not under denial the writ of habeas District Court’s “it the Due Process Clause unless offends merits, reaching corpus without since justice rooted in the principle some so petition- agree with District Court that people conscience of our as traditions and respect sumptions policy. as well States is with were settled one of If this so argued asserts, holdings, respondent it cannot constitutional that a stricter standard court issues that have them as then applies Mullaney unlikely many where a state prior de- statutory interpretation. a new lawyers objections appropriate fense made pre- incorporating instructions those July Humphries 3. decided on 1977. sumptions. made none here. The Petitioner opinion in Hankerson v. North passed on the North Carolina following issued June footnote: contained validity anyway. wish, States, they may if be able insulate Moreover, persuaded we are not 8. by enforcing past the normal convictions justice impact on the administration the those States that utilize the rule failure to valid sort of burden- any claim error. instruction See, a waiver of shifting presumptions in this case involved g., e. Fed.Rule Crim.Proc. devastating respondent as asserts. will be validity burden-shifting pre- If of such er, (6th fall 1978). does within the “cause” 590 F.2d er’s claim Cir. How- exception ever, to the rule in “prejudice” when the Court in Hanker- Wainwright Sykes, retroactive, son made it observed ' impact resulting that the on the administra- justice tion of would not be burdensome. objects ap- failure Petitioner Ohio’s The Court reasoned that if the validity of ply retroactively determination that burden-shifting instructions in cases of removed from defendant the Ohio law bur- *12 settled, type this had well been it would be preponder- aby den of unlikely many that lawyers would or, majority ance of evidence as the appropriate have made objections to those holds, its determination that Ohio law made The Court instructions. then declared that: the absence of self-defense element of States, they wish, may The if be able the crime of murder. past insulate convictions enforcing the Wilbur, Mullaney In 421 U.S. 95 normal and valid rule that failure to ob- (1975), 44 L.Ed.2d re S.Ct. 508 and In ject to a is a jury instruction waiver of Winship, 25 any claim of error. (1970),the Supreme Court held Hankerson, n.8, at 432 U.S. 97 S.Ct. at requires that the Due Process Clause 2345 n.8. prosecution prove beyond reasonable believe, all doubt of the elements in as the Fourth recently included decided, that in language state’s definition of the offense with this Hankerson charged. protect v. was intended is Hankerson states whose rule 2339, might have North violated Mullaney from a flood of new trials. Stevenson, held that See Cole rule Cir., (4th F.2d 1055 Mullaney 1980)(en banc). If, established in Winship and was to holds, this Court applied retroactively. change in law provides for “cause” a defend object did not to the Petitioner erroneous object ant’s failure to at trial sufficient to trial, during instruction his and thus satisfy the prejudice cause and exception of contemporaneous objec- ran afoul Ohio’s Wainwright, impact then the on the admin Wainwright, tion the Supreme rule. justice istration of of making that interpre held where comply that failure to tation can mitigated retroactive never be contemporaneous objection with a state’s application contemporaneous of the states’ requirement precludes review direct objection I do rules. not believe issue, it precludes likewise suggestion in the contrary Hankerson to review, corpus federal habeas absent ignored. can be so freely showing that defendant had “cause” not to Further, object and the trial in this case “prejudice” resulted was held from decided, three months objecting. Mullaney his not This failure to after comply and more contemporaneous objection years with the than five after In state’s re Win- ship. Although may independent rule amounts to an and have been ade- difficult anticipate quate procedural ground affirming when the Ohio courts would recognize procedure regard may the conviction with that their issue. violate Wainwright, 81-82, Mullaney Winship, supra, 433 and or 86- the exact manner 2503-2504, major- which the rule those cases would be applied, this ity petitioner case finds that had rule itself was not new or un- anticipated. for the cause failure the viola-

tion Mullaney because was un- It is clear applied that Ohio its contempo- anticipated petitioner’s at the time of objection raneous rule in this case. It prejudice exception also clear that apply cause to the Ohio intends to well-defined; Wainwright contemporaneous objection is not rule generally rule fact, guide there is little the Court in its burden of Long, cases. State interpretation. Thus, Rachel v. Bordenkirch- See N.E.2d St.2d fall petitioner does I would hold prejudice exception of

within cause corpus federal habeas

Wainwright, precluded. issue

review this America,

UNITED STATES

Plaintiff-Appellee, *13 MEYERS,

Scott Edward

Defendant-Appellant. 80-5134.

No. Appeals, Court of

United States Circuit.

Sixth April 1981.

Argued Feb.

Decided 18,1981.

Rehearing Denied June