dissenting:
“What a difference a day makes.” What an even greater difference more than a year may make. Here we have someone convicted, in a trial which took place in October 1973, for an offense which occurred on June 6, 1973. The case of Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980) (en banc), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), described as “a case procedurally similar to the one at bar,” slip op. at 215, is different in a very crucial temporal respect.
Cole had already been tried, and the appeal decided by the end of January 1972. Not surprisingly, the counsel in Cole did not object to jury instructions only later determined to be violative of a criminal defendant’s rights. The decision at the district court level in Mullaney v. Wilbur, which first announced the rule that the burden of proving malice and illegality remained on the prosecution throughout, was not handed down until September 29, 1972, some eight months later. Wilbur v. Robbins, 349 F.Supp. 149 (S.D.Me.1972). The court of appeals affirmance took place only on February 14,1973,1 over a year after the appeal had been decided in Cole, but eight months before Honeycutt’s trial took place.
In the case sub judice, the charge to the jury, given after the district court and First Circuit decisions in Mullaney v. Wilbur, contained two related provisions formerly customary in first degree murder trials in North Carolina, but recognized in Mullaney v. Wilbur to be violative of a defendant’s constitutional rights. The jury was charged that the intentional killing or wounding of the victim in itself creates a presumption of illegality and a presumption of malice, imposing on the defendant a burden to prove to the jury’s satisfaction that there was no malice on his part.2
There was a time not too long ago when the presumption instructions given here had uniformly been regarded as proper. Reasons to doubt their correctness began to accumulate with the decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the principal fundament of decision at all three court levels in Mullaney v. Wilbur.3
Given the drag effect which tends to delay modification, development or outright change in the law, we may assume, for present purposes at least, that no lawyer would have been thought to have been providing ineffective assistance by failing to raise an objection to the instructions creating presumptions burdensome to the defendant of unlawfulness and of malice merely on the collateral support supplied by *219Winship. Defense counsel, after all, beyond preserving arguable points of law, has a responsibility not to ánnoy or antagonize judge or jury by objections perceived by the judge to be meritless. Impatience or undisguised incredulity on the part of the judge all too easily may be translated in the minds of the jury into a suggestion of insubstantiality of defense and of grasping at straws.4
For that reason, presumably, the decision in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), particularly note 8 at page 244, 97 S.Ct. note 8 at page 2345, proceeded on the basis that a mere failure to raise the point in the absence of persuasive, cogent authority would not of itself necessarily constitute cause or prejudice. The Fourth Circuit so held in Cole v. Stevenson.
There is, however, a great, and to my mind controlling, temporal distinction between Cole and the present case. The trial in Cole preceded any determination at the district court, circuit court or Supreme Court level in Mullaney v. Wilbur.5 See Wilbur v. Robbins, 349 F.Supp. 149 (S.D.Me.1972); Wilbur v. Mullaney, 473 F.2d 943 (1st Cir.1973), vacated for further consideration in light of a recent decision of the State court, 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed.2d 96 (1974), order reinstated on remand, 496 F.2d 1303 (1st Cir.1974), affirmed, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
Honeycutt to the contrary was not tried until October 1973. At that time both a distinguished district judge, Judge Edward Thaxter Gignoux, and the First Circuit Court of Appeals (Bailey Aldrich, Frank M. Coffin, and Edward M. McEntee, JJ.) had recognized the compelling force of Winship and had extended its holding to the very situation here presented.
From all that I draw the following rather inescapable conclusions:
1. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) held that, if defense counsel had been sufficiently prescient (or desperate) to raise at trial (or in North Carolina as part of a direct appeal) the unconstitutionality of an instruction placing the burden of proof as to an essential element of the crime on the accused, the decision in Mullaney v. Wilbur would apply retroactively to the case. In other words, regardless of whether practice at an acceptable level of competence would or would not have required counsel to foresee development and change in the law, if counsel did in fact raise (and hence act to preserve) the point, his client would be entitled to the benefit. At the same time, Hankerson, in footnote 8,6 suggested that the states could avoid a wholesale liberation of individuals convicted in the past of serious crimes by the requirement, for example, of a contemporaneous objection preserving the point at trial.
2. Hankerson concerned, as does the present case, a set of facts in the intermediate position, the trial having taken place on November 21, 1974,7 i.e., after the district court and First Circuit decisions in Mullaney v. Wilbur, but before the Supreme Court affirmance. Counsel in Hankerson was diligent enough to have preserved the point by timely objection. Since counsel in Hankerson had done so, the suggestion appearing by way of dictum in footnote 8 simply had no pertinence to the Hankerson case. Understandably, therefore, it did not address possible distinctions, depending on whether the trial took place (a) before Judge Gignoux’s decision on September 29, 1972, (b) after the Supreme Court’s opinion *220on June 9,1975, or (c) at some intermediate date. Clearly, at some point in time, the new rule would have become well-established, and the failure to object to an instruction contravening it would, in the absence of a deliberate by-pass approved by the defendant, ipso facto, constitute ineffective assistance of counsel. As my brethren in the majority appear to appreciate, see slip op. at 219, n. 6, certainly that point in time is no later than June 9, 1975, the date of the decision by the Supreme Court in Mullaney v. Wilbur. As Tyler v. Phelps, 622 F.2d 172 (5th Cir.1980), vacated following rehearing;8 643 F.2d 1095 (5th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1992, 72 L.Ed.2d 455 (1982) has held, in the case of a post-June 9,1975 trial, the failure by trial counsel to raise an objection of the sort counsel in the present case failed to raise, coupled with an affirmative showing that there were no sufficiently cogent trial tactics to justify the failure to object, would constitute sufficient cause and prejudice under the teachings of 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).
Hence, the case before us presents an open and unresolved question as to what is the proper course to be followed where a trial took place after the First Circuit decision on February 14, 1973 in Mullaney v. Wilbur, but before the Supreme Court’s decision on June 9, 1975. I simply cannot accept (bearing in mind particularly that we deal with a charge of first degree murder, the most serious which any individual is likely to face), that we mechanistically can say that, unless and until the Supreme Court alone has spoken, all other indications of a snowballing development may be safely ignored. Whether a lone district court decision would suffice to put reasonably competent counsel in North Carolina on notice, we need not decide. Obviously, the question would be a more difficult one. However, the First Circuit is a distinguished court. It announced a rule which, if the court was correct, would apply nationwide, in North Carolina as well as Maine. After the decision of the First Circuit, at least unless and until the Supreme Court should reverse the decision, there would no longer be any reason for counsel to fear a negative reaction if the point were raised (whether or not it would prevail) or the prejudice of a judicial attitude that the argument was frivolous or farfetched. The objection should have been made.9 I say that realizing that, had I been trying the case or a similar one, I might, but for the grace of God, have made the same mistake myself. The error of counsel, however human and understandable, nevertheless arose in a case of life or death, and was too serious in its consequences to be excused simply on the grounds that the Supreme Court had not yet spoken to the exact point. It had foreshadowed the rule, as Judge *221Gignoux at the trial level, and Judge Aid-rich speaking for the First Circuit had correctly perceived.10
Accordingly, I find here what was not present in Cole v. Stevenson, namely, constitutionally ineffective assistance of counsel. Since it is plainly present, there is no occasion simply to remand for a finding of whether cause had been demonstrated. Cause is manifest. Consequently, I favor the grant of the writ of habeas corpus, conditioned, of course, to allow the state to bring the petitioner again to trial.
. Wilbur v. Mullaney, 473 F.2d 943 (1st Cir.1973). The ultimate disposition in the Supreme Court occurred on June 9, 1975, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
. While I am not so sanguine as the majority about the refusal under the circumstances to provide an instruction on the law of self-defense, it is not necessary to enter that brambly thicket. For the purposes of my dissent, it suffices that the instructions creating presumptions of unlawfulness and of malice now are clearly recognized to be improper.
. Winship was directly concerned only with the question of whether the burden on the prosecution might constitutionally be relaxed to impose only a necessity to prove the case by a preponderance of the evidence or whether the case had to be proven beyond a reasonable doubt. However, the Supreme Court’s opinion presaged a much larger rule as to where the burden would lie, and not simply the quantum of proof when the burden is on the prosecution:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
397 U.S. at 364, 90 S.Ct. at 1072.
. See dissenting opinion in Cole v. Stevenson, 620 F.2d at 1071 n. 25.
. Cf. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), where a failure to comply with a contemporaneous objection requirement was held a proper bar to habeas corpus relief where the trial preceded an Ohio decision changing State law in a fashion entitling defendants to an instruction not regarded as available prior to that court decision.
. 432 U.S. at 244, 97 S.Ct. at 2345.
. See State v. Hankerson, 288 N.C. 632, 633, 220 S.E.2d 575, 578 (1975); Hankerson v. North Carolina, 432 U.S. at 239, n. 5, 97 S.Ct. at 2343 n. 5.
. Vacation left undisturbed the determination that prejudice under the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) had been established. The court altered the result on the grounds that trial counsel’s complete inability to remember anything about his reasons for failing to object meant that the habeas corpus petitioner had not carried his burden of showing cause. Plainly, had counsel candidly admitted that he was, at the time, unaware of the decision by the Supreme Court in Mullaney v. Wilbur, or its implications, cause would have been shown. Furthermore, the petitioner in Tyler had abandoned a Sixth Amendment claim of denial of effective assistance of counsel, 643 F.2d at 1098, n. 2, thereby forcing the case into the mold of Wainwright v. Sykes.
. It is not an irrelevant consideration that counsel in Hankerson, even before the Supreme Court’s pronouncement in Mullaney v. Wilbur, felt that the district court and First Circuit holdings in Mullaney v. Wilbur made it incumbent on him to preserve the very objection to instructions which counsel for Honeycutt failed, in identical circumstances, to make.
That conduct of Hankerson’s counsel serves to lay to rest fear evidently overhanging some cases involving retroactivity that the state courts will be faced with a huge and straining burden in that they will have to retry many prisoners at the cost of disturbance of the handling of the current cases. Since one lawyer readily perceived the desirability and fulfilled the responsibility of relying on Mullaney v. Wilbur in the period between February 14, 1973, when the First Circuit spoke and June 9, 1975, when the Supreme Court affirmed, there is little basis for assuming that there was a welter of cases during that period where counsel neglected to do so.
. Engle v. Isaac closes one door to habeas corpus relief by holding that the mere failure to object on the basis of a developing legal concept, even though other counsel in similar circumstances have preserved the point by timely objection, does not establish cause for purposes of the doctrine of Wainwright v. Sykes:
We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.
Id. 456 U.S. at 134, 102 S.Ct. at 1574. Engle v. Isaac, however, does not address a situation like the one presented here, where the failure to object is not just “mere”, but rather demonstrates a clear insufficiency of representation. Where incompetency of counsel is established, that amounts to cause. E.g., Sincox v. United States, 571 F.2d 876, 879-80 (5th Cir.1978); cf. Jiminez v. Estelle, 557 F.2d 506, 510-11 (5th Cir.1977). Like the Court in Sincox:
We are not, however, considering the tactical or strategic decisions routinely made by counsel during the course of a trial. Nor are we making a hindsight evaluation of a “judgment call.” Counsel’s failure to do anything to protect two fundamental rights of his client was an inexcusable mistake of grand proportion.3
The government elicited testimony showing that counsel was a successful trial attorney of many years experience. We do not focus on his overall competence or standing within the profession and our holding should not be so construed. We are dealing with two specific mistakes that had the effect of compromising fundamental rights of one client. Counsel’s candor in characterizing his own mistakes tends to enhance rather than detract from his professional standing. See also Collins v. Auger, 577 F.2d 1107, 1110 n. 2 (8th Cir.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979).