dissenting.
I respectfully dissent.
I fully agree with the majority that the instructions given by the state trial court were confusing and deficient. Were this matter before us on direct review from a trial court within our own system, there is little doubt in my mind that the exercise of the court’s supervisory powers to reverse would be justified. We act here, however, within the narrower confines of federal ha-beas corpus law.
Like federal law,1 Michigan law requires that, when self-defense is injected into a trial by the introduction or existence of some evidence supporting the claim, the burden is upon the state to prove beyond a reasonable doubt not only each element of the crime charged but also that the defendant did not act in self-defense.2 Unlike the majority, I do not conceive that this rule, under Michigan law, makes the absence of self-defense an element of proof of the crime itself, which the state must invariably prove beyond a reasonable doubt, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), rather than an affirmative defense, which is not subject to such a constitutional imperative. Patterson v. New York, 432 U.S. 197, 205-11, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).3 See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (insanity defense), discussed with approval, Patterson, supra, 432 U.S. at 204-07, 97 S.Ct. 2319; Hankerson v. North Carolina, 432 U.S. 233, 245, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (Blackmun, J., concurring) (self-defense).
If self-defense is not in issue in a murder trial, there is no obligation under Michigan law for the trial judge to instruct the jury upon it. People v. Townes, 391 Mich. 578, 218 N.W.2d 136, 141 (1974); People v. Dickerson, 30 Mich.App. 447, 186 N.W.2d 850, 852 (1971); People v. Johnson, 13 Mich.App. 69, 163 N.W.2d 688, 691 (1968), rev’d on other grounds, 382 Mich. 632, 172 N.W.2d 369 (1969), cert. denied, 397 U.S. 1079, 90 S.Ct. 1533, 25 L.Ed.2d 816 (1970).4 The duty to instruct under Michigan practice arises only if the evidence in the particular case suggests its applicability. Even though the state, as a matter of its own law, has elected to negate self-defense beyond a reasonable doubt, the defendant must first introduce or at least point to *524evidence from which its existence may be inferred.
Where the state has permissibly cast upon the defendant the burden of producing evidence to support the existence of a fact, negation of that fact is not in common understanding an element of the crime. Absence of self-defense is simply not a fact which must be proved for every charge of murder in Michigan, and it is anomalous to label it an element for some murder prosecutions and not for others. The foregoing reasons convince me that the absence of self-defense is not an element of the crime for which Berrier stands convicted.
Patterson indicates, without elaboration, that there are substantive constitutional restraints on a state’s power to define the elements of crime. 432 U.S. at 210, 97 S.Ct. 2319. I am not convinced, however, that due process requires Michigan to make the absence of self-defense an element of homicide, rather than an affirmative defense, and I do not understand the majority to so hold. That being the case, Michigan may elect to allocate the burden to prove the mitigating fact of self-defense however it chooses, just as in Patterson the state permissibly burdened the defendant with the obligation to prove the mitigating fact of extreme emotional disturbance. See Allen, The Restoration of In re Winship: A Comment on Burdens of Persuasion in Criminal Cases After Patterson v. New York, 76 Mich.L.Rev. 30, 42-46 (1977).
While it is unnecessary to suggest, as Professor Allen convincingly does,5 that Patterson v. New York overruled Muiianey v. Wilbur, it seems reasonably clear that Patterson would permit a state to treat self-defense as an outright affirmative defense and to allocate the burden of persuasion to the defendant as the instructions, according to the majority, did at Berrier’s trial. If the foregoing view is correct, then the state trial judge’s instructions, though perhaps erroneous under state law,6 do not violate constitutional rights under Muiianey v. Wilbur, as later refined in Patterson, where the ordinary and traditional elements of second-degree murder were proved beyond a reasonable doubt.
Even if the instructions were found viola-tive of Muiianey v. Wilbur, I am of the opinion that the failure of counsel to object at trial to the instructions as given precludes our reaching the issue here by application of the more narrow review of state error propounded in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See also Henderson v. Kibbe, 431 U.S. 145, 157, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (Burger, C. J., concurring). Those decisions rejected the “deliberate bypass” language of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), in favor of a rule precluding federal habeas review in states having a contemporaneous objection rule where it is shown that defense counsel failed to object timely to the error.7 A federal court may overlook the state procedural waiver only if the habeas petitioner bears his burden of showing both “cause” justifying his failure to object and “prejudice” actually resulting to the petitioner from the constitutional error. Michigan had and has a contemporaneous objection rule.8
*525While Wainwright, on its facts, was concerned with the failure of counsel in the state trial to object to the admission of a confession later claimed to violate the defendant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Hankerson v. North Carolina, supra, decided contemporaneously with Wainwright and involving the retroactive application of Mullaney furnishes considerable authority that Wainwright was intended to be fully applicable to waivers resulting from the failure to object to jury instructions. In Hankerson, as here, it was claimed that the state trial judge’s instructions to the jury in the petitioner’s state murder trial impermissibly shifted to the defendant the burden of proving the defense of self-defense, contrary to the holding of Mullaney v. Wilbur, supra. While holding that Mullaney was to be retroactively applied, Justice White in Hankerson expressly met the state’s argument that retroactive application would be “devastating” by observing that the states could “insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error.” Hankerson, supra, 432 U.S. at 244 n. 8, 97 S.Ct. at 2346.
Petitioner has not met his burden under Wainwright of showing any cause justifying the failure of counsel to object at trial and, indeed, none can be gleaned from the record.9 This should end the matter in my opinion, for the test in Wainwright is two-pronged and in the conjunctive.10
Wainwright necessarily assumes not only error but constitutional error of sufficient proportions to be cognizable in habeas proceedings; were it otherwise the Supreme Court would not have needed to determine the effect of procedural waivers occurring in the course of trial. Wainwright indicates that, notwithstanding substantial constitutional error, the writ may only issue upon the further showing of cause and prejudice. Assuming, however, that the language of Justice Rehnquist in Wainwright alluded to in the majority opinion, ante at 522, permits an examination into the question of prejudice, even where no cause is shown, I am convinced that the error here does not rise to that degree of substantiality which Wainwright, according to the majority, arguably suggests. My reasons are six-fold:
First, the instructions are actually contradictory as to which party bore the burden of persuasion on self-defense. In two portions of the charge, including one immediately following the lengthy quotation from the instructions in the majority opinion, ante at 519-520, the trial court squarely placed the burden of persuasion as to self-defense on the state.11 It is well estab*526lished that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
Second, the instructions themselves, though poor, did at least include the traditional charges on the presumption of innocence and reasonable doubt. In addition, the charge placed a particularly heavy burden of proof on the government in at least one respect.12
Third, the defendant’s attorney was present and heard the entire instructions as actually delivered by the trial judge to the jury. That he thereafter expressed his satisfaction with them is affirmative evidence that the instructions were not considered prejudicial under Michigan law by a Michigan attorney, whose primary function was to protect his client from such prejudice.13
Fourth, the issue was essentially which of two irreconcilable versions of the incident the 'jury would believe. The government claimed that Berrier was angry with the decedent, his brother-in-law, for having testified against _him in an earlier criminal trial and introduced evidence that Berrier had earlier expressed the intention to kill him. It was the government’s contention that Berrier shot his brother-in-law seven times as the latter was leaving the Berrier home on the night in question. On the other hand, the defendant’s theory and testimony was that he heard a commotion at the door, heard his wife scream, feared for his own life and that of his family, and that he thereupon seized his gun and fired at the man in self-defense, not knowing who it was. In such circumstances subtle differences in the application of the law of self-defense, and even in the burden of proving it, are unlikely to have played an important role in the jury’s deliberations.14 Put simply, the critical issue was whether Berrier did or did not recognize his brother-in-law.
Fifth, the alleged constitutional error here pales in comparison with the potential prejudice to a defendant from the improper admission of his confession to the crime, an error which, in Wainwright, did not override the petitioner’s duty to show cause and prejudice to avoid a procedural waiver of error.
Finally, Justice White in Hankerson persuasively indicates that a state like Michigan, whose rules provide a waiver of error for the failure to object to jury instructions, may effectively insulate past convictions from the retroactive application of Mulla-ney.
Accordingly, I would reverse and remand with instructions to dismiss the petition unless further proceedings in the district court should reveal merit in the other issues raised therein but not resolved in the district court or here.
. E. g., United States v. Jackson, 569 F.2d 1003 (7th Cir. 1978); United States v. Corrigan, 548 F.2d 879 (10th Cir. 1977); Frank v. United States, 42 F.2d 623 (9th Cir. 1930); 2 E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 41.19 (1977).
. E. g., People v. Asbury, 257 Mich. 297, 241 N.W. 144 (1932); People v. Coughlin, 65 Mich. 704, 32 N.W. 905 (1887); see People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961).
The Michigan State Bar Special Committee on Standard Criminal Jury Instructions prepared the following on self-defense:
The defendant is not required to prove that he acted in self-defense. The prosecution has the burden of proof of guilt beyond a reasonable doubt, and this includes the responsibility of proving that the defendant was not acting in self-defense.
Michigan Criminal Jury Instructions 7:9:06 (1977 ed.).
. Patterson states:
We thus decline to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
432 U.S. at 210, 97 S.Ct. at 2327.
. The pattern jury instructions for Michigan, however, recommend a generalized instruction on the absence of justification or excuse which is to be given in every case:
“A killing is not murder if it is justified [or] excused . . .” Michigan Criminal Jury Instructions, supra, 16:3:01(7).
. Allen, supra, 76 Mich.L.Rev. at 53-55.
. The law of the case, as far as Michigan law is concerned, is that the instructions given by the state trial court are correct, regardless of any contrary view we may have regarding state law.
. Wainwright v. Sykes indicates that a federal court, as a matter of comity, must give effect to a state’s contemporaneous objection rule. The Court recognized that the state procedural requirement serves several legitimate purposes which would be undermined if a federal habeas forum were permitted to overlook the default. 433 U.S. at 88-90, 97 S.Ct. 2497. Acknowledging that a contemporaneous objection rule would be an adequate and independent state procedural ground which would bar direct review, id. at 86-87, 97 S.Ct. 2497, the Court held that a procedural default must also be honored in a collateral attack upon a state conviction.
. Michigan’s court rules expressly provide that “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the *525verdict, stating specifically the matter to which he objects and the grounds of his objection.” GCR 516.2, made applicable to criminal trials by GCR 11 and 785. See also People v. Rand, 397 Mich. 638, 247 N.W.2d 508, 511 (1976); People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976); People v. Alcala, 396 Mich. 99, 237 N.W.2d 475 (1976).
. As in Wainwright v. Sykes, supra, Berrier has furnished no explanation whatever for the failure to object at trial, even though an opportunity to do so was clearly afforded his counsel at the trial. 1 find the absence of cause under Wainwright to be particularly evident here, where any right to object was based upon a longstanding principle of law. See note 2, supra.
. 433 U.S. at 84-85, 87, 97 S.Ct. 2497. But cf. The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 218 (1977): The Court has never made clear whether [the elements of cause and prejudice] are in fact independent of each other.
. Self defense in proper cases is the right of every person but it will not justify the taking of a human life unless the jurors shall be satisfied from the testimony first that the Defendant was not the aggressor in bringing on the difficulty, that is, that he was without fault; second, that there existed at the time of the striking of the fatal blow in his mind a present and impending necessity to strike such a blow in order to save himself from death or some great bodily harm; third, that there must have been no way open whereby he could have retreated as it appeared to him at the time to a place of safety and thus have avoided the conflict. Unless you find that all three of these facts are established in this • case then the plea of self defense fails. The burden of proof of all such matters is upon *526the People to show that the respondent is guilty of the offense charged and the People’s testimony must be such as to satisfy the jurors that the killing was not done in self defense. The burden is not on the Defendant who makes the claim of self defense to satisfy the jury of the truth of his claim. (Emphasis added).
Tr. at 560-61. Similar language also appeared earlier in the charge.
. The trial court instructed:
To find the defendant guilty you must be able to say that there is no rational theory on which credible evidence can be reconciled, but that of the defendant’s guilt.
Tr. at 562. An instruction of this nature need not be given in a federal trial. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954) (rejecting an instruction to the effect that the evidence must exclude every reasonable hypothesis other than that of guilt).
. To the extent that the attorney’s conduct may have failed to protect the petitioner, the issue of his competence under the Sixth Amendment is not before our court in this appeal. See generally The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 217-18 (1977).
. See United States v. Jackson, 569 F.2d 1003, 1010 (7th Cir. 1978). In a similar setting, the district court’s failure to instruct that the government must prove beyond a reasonable doubt that the defendant did not act in self-defense was held not to be plain error, cognizable without an objection at trial.