dissenting.
The majority concludes that Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), bars consideration of petitioner’s claims because of the procedural default which occurred at trial when his counsel failed to object to the jury instruction with specificity. Because I construe the procedural posture of this case to be controlled by County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), rather than Engle v. Isaac, supra, I respectfully dissent.
During the trial proceedings below, petitioner’s counsel failed to comply with Ohio’s contemporaneous objection rule as set forth in State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977), when he made a general objection to the jury charge rather than objecting with specificity as required by Ohio Rule of Criminal Procedure 30. Ordinarily, this procedural defect would preclude federal habeas corpus review. However, when the state appellate court does not construe the procedural error as barring review, then a federal court may entertain the merits of the claim.
In County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court held that a federal district court had jurisdiction to entertain constitutional claims raised in a ha-beas corpus petition when the state appellate court did not construe a state procedural default as its basis for denying review of the claims. In that case, respondents appealed their convictions challenging the unconstitutionality of a New York Statute to the state appellate division which rejected their claim without explicitly articulating its reasons. The court reasoned that since the prosecution never argued that a state procedural default had occurred, it could conclude that the appellate court did not rely on such a procedural ground in rejecting respondent’s constitutional claim. Id. at 152, 99 S.Ct. at 2222.
The court further reasoned that the purpose of the exception to federal habeas corpus jurisdiction is to accord appropriate respect to the sovereignty of the states and their procedural rules by the federal system. Upon concluding that the appellate court rejected respondent’s claim on its merits, the court held that the federal courts could address the claim because “a federal court implies no disrespect for the state by entertaining [a] claim” which the state has addressed on the merits. Id. at 154, 99 S.Ct. at 2223. Accord Martinez v. Harris, 675 F.2d 51 (2d Cir.1982).
This Circuit has applied the holding of Ulster County Court to review a habeas *49corpus petition which challenged jury instructions as a denial of due process in Burton v. Bergman, 649 F.2d 428 (6th Cir. 1981), vacated and remanded on other grounds, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982).1 The court reasoned that the failure to object to the instructions at trial did not bar habeas relief reasoning that such a procedural default precludes federal review only “if the state court relies on the procedural default in affirming the conviction.” 649 F.2d at 430 n. 1.
In the instant case, petitioner sought post-conviction relief pursuant to Ohio Rev. Code § 2953.21 before the 7th District Court of Appeals of Ohio. There petitioner alleged due process deprivation by the trial court’s jury instruction which placed the burden of proving self-defense by a preponderance of the evidence upon the defendant. The court of appeals concluded that the failure of counsel to specifically object at trial constituted a waiver of any claims related thereto. Ohio v. Jones, No. 1279 (Ohio Ct.App.1978). Nonetheless, the appellate court addressed the merits of petitioner’s claim and concluded that the jury instruction did not amount to a denial of a constitutional right and, accordingly, affirmed the conviction below.2 Id. at p. 4. Since the state appellate court addressed the merits of petitioner’s constitutional claim, the instant petition falls within the purview of Ulster County Court, supra and Burton v. Bergman, supra, rather than En-gle v. Isaac, supra, where the procedural default was construed to bar state appellate review.
The majority relies upon Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), for the proposition that the petitioner’s failure to comply with the contemporaneous objection rule was a substantial basis for the appellate court’s holding. Hockenbury, however, has been criticized as being in conflict with previously decided cases in this Circuit which have upheld habeas review of plain errors that are reviewable in state court. See, e.g., Krzeminski v. Perini, 614 F.2d 121 (6th Cir.1980); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir.1978); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978). See also Hockenbury v. Sowders, 633 F.2d 443, 445-48 (6th Cir.1980) (Keith, J., dissenting from order denying rehearing en banc). The underlying rationale of these decisions is that considerations of comity are not disregarded when a federal court entertains a claim that the state addressed upon choosing to disregard the procedural defect. County Court of Ulster County v. Allen, 442 U.S. at 154, 99 S.Ct. at 2223; Wainwright v. Sykes, 433 U.S. at 84, 97 S.Ct. at 2505. These cases make clear that the “substantial basis” holding in Hockenbury requires a court to apply an untenable standard.
Furthermore, in the first appeal of the petitioner’s conviction, the court made no mention of the procedural defect and decided the merits. State v. Jones, No. 1229 (Ohio Ct.App.1975). In the second appeal, for post-conviction relief, the appellate court had alternative bases for affirming the judgment of conviction: (1) petitioner was procedurally barred, (2) petitioner failed to establish that constitutional errors were committed during trial. State v. Jones, No. 1279 (Ohio Ct.App.1978). My review of the state record indicates that, in the second appeal, neither the procedural bar nor the merits of petitioner’s argument *50was a substantial basis for the court’s denial of petitioner’s claim. Moreover, if the Hockenbury standard is accurately applied, a court should examine both appeals and, upon so doing, would clearly conclude that a meritorious consideration was the substantial basis of the state appellate decisions.
Thus, I would reverse the denial of habe-as relief, consistently with the above-discussed cases in this Circuit, and remand for consideration of the merits of petitioner’s constitutional claims.
. The Supreme Court granted respondent’s petition for writ of certiorari but, vacated the judgment and remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Rose v. Lundy, supra, addressed the question of whether a district court must dismiss a habeas petition which contains both exhausted and unexhausted claims, but it did not address the state procedural default issue discussed above.
. The state appellate court’s treatment of Jones v. Jago is distinguishable from Engle v. Isaac, supra, where the court of appeals rejected petitioner’s claim because of his failure to comply with the contemporaneous objection rule. The appellate court did not consider the merits of Isaac’s claim.