concurring.
I concur in the result. A majority of the en banc Court agrees on only one point: that Isaac’s imprisonment is in violation of due process of law. This result was reached by the original panel. The en banc Court does not agree on precise issues to be decided as well as their correct resolution. I reluctantly write separately because I believe that the plurality opinion does not provide a rationale to support its conclusion and to explain my disagreement with Judge Lively’s and Judge Kennedy’s dissenting opinions.
I.
Ohio Rev.Code Ann. § 2901.05(A) became effective on January 1, 1974. In 1976 the Ohio Supreme Court held that § 2901.05(A) required defendants only to proffer evidence sufficient to raise the affirmative defense of self-defense. State v. Robinson, *113747 Ohio St.2d 103, 351 N.E.2d 88 (1976). Isaac was convicted in 1975. At Isaac’s trial the jury was instructed that defendant had the burden of proving the affirmative defense of self-defense. Isaac did not object to such a jury instruction. The decision in State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977) limits the retroactive application of Robinson to defendants who objected to the jury instruction at trial requiring defendants to prove self-defense. Isaac’s petition for a writ of habeas corpus challenges only the use of Ohio’s contemporaneous objection rule to deny him the benefit of the retroactive application of Robinson.
II.
The plurality opinion defines the issue to be decided as whether Ohio can convict a defendant by applying a different or lesser standard of proof than that required by statute. The plurality opinion holds that it is “unfair” for a state not to meet the burden of proof assumed by it. However, we are not told the reasons why.
The Ohio Supreme Court justified applying a “different or lesser standard of proof” than that required by statute because Isaac failed to object to the jury instructions at trial. State v. Humphries, supra.
The contemporaneous objection rule presupposes the existence of an alleged error to be corrected. Isaac’s jury instructions were in accord with well-settled Ohio law at the time of his trial. Thus, the panel’s decision held that Ohio’s use of the contemporaneous objection rule in Isaac’s case did not have a “real and substantial relation to the ends sought to be attained by the use of” such a rule. This approach recognizes that state judicial decisions as well as state legislative determinations are subject to due process scrutiny. This analysis also implicitly recognizes that a state’s failure to follow its own procedural rules raises due process claims cognizable under 28 U.S.C. § 2254.
The concurring panel opinion stated that Isaac’s jury instructions could have been objected to at trial on the principle enunciated in Muliáney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).1 However, it correctly relied upon Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), to hold that a state cannot deny full retroactive effect to a change substantially affecting the truth-finding process of a criminal trial.
The plurality opinion rejects these two plausible rationales, but offers none in their place.2
III.
Judge Lively’s dissent contends that the Robinson court’s interpretation of § 2901.-05(A) to require defendants only to proffer evidence sufficient to raise a defense of self-defense “merely reduces the quantum of proof necessary to sustain such a defense.” Assuming Judge Lively’s interpretation of Robinson is correct, Isaac was entitled to a jury charge that if the jury had a reasonable doubt as to whether he acted in self-defense he should be found not guilty. Or, to state it differently, this is the equivalent of charging that the burden is on the state to prove the absence of self-defense beyond a reasonable doubt. Additionally, Judge Lively’s interpretation of Robinson has an untenable result; the burden of proof of the affirmative defense' of self-defense is on neither the defendant nor the prosecution.
Judge Lively also argues that “the quantum of proof necessary to sustain the defense of self-defense is a state procedural rule” which the state need not follow. However, a change in the “quantum of proof necessary to sustain the defense of self-defense” affects the truth-finding process at a criminal trial. Hankerson holds *1138that such a change must be retroactively applied.
Judge Kennedy’s dissent asserts that the application of Ohio’s contemporaneous objection rule bars federal review.3 The decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) holds that a defendant’s failure to object to error at trial will not bar federal review of his conviction if he had “cause” not to object and the alleged error is prejudicial. Isaac had “cause” not to object to the jury instructions at his trial. Isaac neither knew nor could have known that the jury instructions at his trial were improper under Robinson, decided two years after his trial. There is no better “cause” for Isaac’s failure to object to jury instructions than that the jury instructions were proper at the time of his trial.
Judge Kennedy mistakenly argues that the decision in Mullaney was a predicate for Isaac to object to jury instructions at his trial. Mullaney decided the issue of the constitutionality of the definition of a substantive offense. Neither Isaac nor the defendant in Robinson challenge Ohio’s definition of a substantive offense. Isaac, as well as the defendant in Robinson argue only that their jury instructions were inconsistent with a state law, ORC § 2901.05(A).
. See discussion of Mullaney in Part III, infra.
. Isaac has not challenged the constitutionality of his jury instructions because Robinson holds such instructions were improper as a matter of state law. Nor has Isaac challenged the constitutionality of the statute under which he was convicted. Thus, the lengthy discussion in Parts V and VI of the plurality opinion is dicta.
. “The question of when and how defaults in compliance with state procedural rules can preclude our consideration at a federal question is itself a federal question.” Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965).