concurring:
I concur specially because my route to decision differs materially from that of my panel colleagues. To attempt a distinction between the charge in the instant case and the instruction in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), cert. denied, 459 U.S. 853, 878, 103 S.Ct. 119, 173, 74 L.Ed.2d 104, 142 (1982), is, in my view, futile. One, in the language devoted to alibi, requires the defendant to “introduce evidence which ... creates a reasonable doubt regarding his guilt.” The other imposes a burden on the defendant to prove alibi “to such a degree ... as will ... create ... a reasonable doubt____” 1
My concurrence, therefore, rests only on the circumstance that Adkins v. Bordenkircher was decided after Frye was tried, at a time when the instruction was generally thought to be correct. See 1 M. Doubles, E. Emroch, & R. Mehrige, Virginia Practice-Virginia Jury Instructions § 106.02 (1964 & Supp.1984).
In the decision in Honeycutt v. Mahoney, 698 F.2d 213 (4th Cir.1983), the Court, over my dissent, held that failure of counsel to object to an instruction “shifting the burden of proof onto the defendant” was not ineffective assistance of counsel since neither the Supreme Court nor the Fourth Circuit had yet considered the issue. The prior outlawing of the instruction by the First Circuit in Mullaney v. Wilbur, 473 F.2d 943 (1st Cir.1973)2 was held not to have made it incumbent on defense counsel to anticipate the possibility of a favorable result at the Supreme Court level and, at least, to preserve the point pending the Supreme Court’s decision.
With that decision binding me, I am foreclosed from asserting that the lessons of In *1015re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, supra, were sufficient to alert reasonably competent counsel to the desirability of objecting to a charge such as the one which confronts us here and of constructing a charge more favorable to the defendant. Left to my own devices, I would hold that the impropriety of the charge was plainly perceptible in the light of In re Winship and Mullaney v. Wilbur, and simply outlined in even starker relief by the holding in Adkins v. Bordenkircher.
However, at the panel level, at any rate, I am not free to disregard the holding in Honeycutt v. Mahoney, and on that basis I rest my concurrence.
. The significance of the fact that defense counsel proposed the instruction lies only in its indication of what the general practice was at the time of the trial and, consequently, of counsel’s innocence of the charge of ineffective assistance of counsel. His proposal of the instruction does not independently operate to deny the grant of the writ, for counsel’s having done, or having failed to do, the thing complained of is the sine qua non of an ineffective assistance of counsel claim. For counsel to have proffered the instruction before us in the case we are called upon to decide following decision on March 24, 1982 of Adkins v. Bordenkircher would, I submit, plainly amount to ineffective assistance. With respect, I regard the attempted distinction between the two charges as a paradigmatic effort "to split a hair 'twixt south and southwest side.”
. The Supreme Court affirmed in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).