dissenting.
Were I to reach the merits of petitioner’s constitutional claim, I would concur with Judge Lively. However, I would affirm the District Court’s denial of the writ of habeas corpus without reaching the merits, since I agree with the District Court that petition*1141er’s claim does not fall within the “cause” and “prejudice” exception to the rule in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). '
Petitioner objects to Ohio’s failure to apply retroactively its determination that Ohio law removed from defendant the burden of proving self-defense by a preponderance of the evidence or, as the majority holds, its determination that Ohio law made the absence of self-defense an element of the crime of murder.
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court held that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the state’s definition of the offense with which the defendant is charged. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), held that the rule established in Mullaney and Winship was to be applied retroactively.
Petitioner did not object to the erroneous jury instruction during his trial, and thus ran afoul of Ohio’s contemporaneous objection rule. In Wainwright, the Supreme Court held that where failure to comply with a state’s contemporaneous objection requirement precludes direct review of a constitutional issue, it likewise precludes federal habeas corpus review, absent a showing that defendant had “cause” not to object and that “prejudice” resulted from his not objecting. This failure to comply with the state’s contemporaneous objection rule amounts to an independent and adequate state procedural ground for affirming the conviction with regard to that issue. Wainwright, supra, 433 U.S. at 81-82, 86-87, 97 S.Ct. at 2503-2504, 2506. The majority in this case finds that petitioner had cause for the failure to object to the violation of Mullaney because Mullaney was unanticipated at the time of petitioner’s trial.
The cause and prejudice exception to the Wainwright rule is not well-defined; in fact, there is little to guide the Court in its interpretation. See Rachel v. Bordenkircher, 590 F.2d 200, 204 (6th Cir. 1978). However, when the Supreme Court in Hanker-son made Mullaney retroactive, it observed that the resulting impact on the administration of justice would not be burdensome. The Court reasoned that if the validity of the burden-shifting instructions in cases of this type had been well settled, it would be unlikely that many defense lawyers would have made appropriate objections to those instructions. The Court then declared that:
The States, if they wish, may be able to 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, 432 U.S. at 244 n.8, 97 S.Ct. at 2345 n.8.
I believe, as the Fourth Circuit recently decided, that this language in Hankerson was intended to protect states whose rule might have violated Mullaney from a flood of new trials. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir., 1980) (en banc). If, as this Court holds, a change in interpretation of the law provides “cause” for a defendant’s failure to object at trial sufficient to satisfy the cause and prejudice exception of Wainwright, then the impact on the administration of justice of making that interpretation retroactive can never be mitigated by application of the states’ contemporaneous objection rules. I do not believe that the suggestion in Hankerson to the contrary can be so freely ignored.
Further, the trial in this case was held three months after Mullaney was decided, and more than five years after In re Win-ship. Although it may have been difficult to anticipate when the Ohio courts would recognize that their procedure may violate Mullaney and Winship, or the exact manner in which the rule of those cases would be applied, the rule itself was not new or unanticipated.
It is clear that Ohio applied its contemporaneous objection rule in this case. It is also clear that Ohio intends to apply the contemporaneous objection rule generally in burden of proof cases. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Thus,
*1142I would hold that petitioner does not fall within the cause and prejudice exception of Wainwright, and that federal habeas corpus review on this issue is precluded.