dissenting:
I strongly disagree with the majority’s ■ conclusion that the trial court’s jury instructions violated the Constitution. Furthermore, even if the jury instructions were flawed, I believe the facts of this case clearly mandate a holding that any error committed was harmless. For these reasons, I must dissent.
I.
The testimony at trial fairly depicts the defendant as a cold-blooded killer rather than a man who was “embroiled in an unfortunate affair of the heart,” to quote the delicate phraseology of Judge Murnaghan. Two state witnesses testified that they saw the petitioner shoot Lawrence Wilson as Wilson, unarmed, sat in his car with his hands on the steering wheel.1 Having fired three shots into his victim’s body, Griffin was not yet ready to leave the scene. Wilson managed to open his car door, get out, and run a short distance.2 Griffin, still armed, pursued him.3 He pointed the gun at Wilson but did not discharge the weapon.4 A bystander testified that he heard Griffin say, “nobody touch me because they get the same thing.”5
Griffin’s aggressive behavior continued after the shooting. He sought out his estranged wife Emma, advised her that he had shot Wilson, and threatened to kill her.6 Emma Griffin testified that, at the time of the shooting, she had been separated from the petitioner for one month.7
Standing meekly against this damning evidence is the petitioner’s own testimony. Griffin testified that, after discussing his estranged wife’s relationship with Wilson, he wished him luck and got out of Wilson’s car. He told the jury that, as he was leaving, he looked back and saw Wilson reach under his seat.8 Griffin stated that he believed Wilson was reaching for a gun so he fired at him.9 Griffin admitted, however, that Wilson had not pulled a gun on him before10 and that the two men had not *1194argued when they conversed prior to the shooting.11
Having heard all the testimony in this case, and after being advised that they must give the benefit of any reasonable doubt to the defendant, the jury convicted Theodore Griffin of the murder of Lawrence Wilson. In this appeal from the denial of his petition for a writ of habeas corpus, Griffin contends that by placing upon him the burden to prove self-defense, the state violated the due process clause of the fourteenth amendment. He also argues that the jury instructions, which placed the burden on him to prove self-defense while imposing on the state the burden to prove malice and unlawfulness beyond a reasonable doubt, were contradictory and confusing and thus violative of the due process clause.
II.
I begin my analysis of the law governing this case by noting that a habeas corpus petitioner faces a stricter standard of proof when challenging an allegedly erroneous jury charge. The harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) is inappropriate. Instead, the flawed instruction must so infect the entire trial that the resulting conviction violates the due process clause. See, e.g., Hyman v. Aiken, 777 F.2d 938, 941 (4th Cir.1985); Fulton v. Warden, Maryland Penitentiary, 744 F.2d 1026, 1032 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3532, 87 L.Ed.2d 655 (1985).
In the present case, I also note the well-settled rule in the Supreme Court and the Fourth Circuit that states may create affirmative defenses and may place upon the defendant the burden of proving the existence of facts that form the basis of these defenses. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (upholding New York statute requiring defendant to prove the defense of actions under the influence of extreme emotional distress); Cooper v. State of North Carolina, 702 F.2d 481 (4th Cir.1983) (upholding jury instruction that placed upon the defendant the burden of proving insanity); Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 215, 58 L.Ed.2d 191 (1978) (holding that it is not unconstitutional to place the burden of proving self-defense on the defendant.) The instant case, therefore, does not present a novel question of law.12 I do not believe that South Carolina improperly shifted to the defendants the burden of proving an element of the crime charged because the state courts have not made absence of self-defense an element of malice murder.
Turning to the issue of jury confusion, I do not believe the instructions given confused the jury. The district court has adequately summarized the redeeming features of the jury charge:
The trial judge carefully explained the elements of murder, and emphasized that the State must prove them beyond a reasonable doubt. The trial judge then compartmentalized the defendant’s burden and the elements of the affirmative defense the defendant must prove. The trial judge also instructed the jury to consider whether the State had proved its case beyond a reasonable doubt, once the jury had determined that the defendant had failed to prove his affirmative defense of self-defense. Finally, the court inserted a ‘savings clause,’ instructing the jury to give the defendant the benefit of any reasonable doubt concerning the plea of self-defense, and, on the case as a whole, ‘you will give the defendant the benefit of every reasonable doubt which you have which arises in the trial of this case.’
Joint Appendix at 82. It is clear to me, therefore, that this case is distinguishable *1195from Thomas v. Leeke, 725, 725 F.2d 246 (4th Cir.), cert. denied, — U.S.-, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).13 If the jurors perceived a conflict in the instructions at all they were ordered to resolve all doubts in favor of the defendant.
Finally, even if there were errors in the jury instructions, the mistakes were harmless. The evidence overwhelmingly indicated that Griffin shot and killed an unarmed man as he sat motionless in his automobile with his hands in plain view. It was an unprovoked murder. The jury could draw no other conclusion. The self-defense claim bordered on absurdity, especially since Griffin himself testified that he had not argued with Wilson, had not been threatened by Wilson, and had not seen a weapon in Wilson’s possession on the night of the slaying. Not a shred of evidence remotely suggested that a reasonable man would so fear for his life that he must fire a weapon at Wilson.
III.
In conclusion, I restate my view that the jury charges did not deny Griffin due process of law. Furthermore, it is inconceivable to me that, based on the facts of this case, any error committed in charging the jury could be anything but harmless. I would therefore affirm the lower court’s decision to deny Griffin’s petition for a writ of habeas corpus.
. See testimony of Eugene Dixson, Transcript at 13-14; testimony of Shirley Ann Wilson, Transcript at 47-48, 71.
. Testimony of Eugene Dixson, Transcript at 14.
. Id.
. Testimony of Eugene Dixson, Transcript at 14; testimony of Shirley Ann Wilson, Transcript at 47.
. Testimony of Eugene Dixson, Transcript at 14.
. Testimony of Bertha Brown, Transcript at 84; testimony of Emma Griffin, Transcript at 101.
. Testimony of Emma Griffin, Transcript at 100.
. Testimony of Theodore Griffin, Transcript at 127.
. Id.
. Testimony of Theodore Griffin, Transcript at 136.
. Id. at 140.
. For an excellent analysis of the constitutionality of requiring defendants to prove an affirmative defense, see Thomas v. Leeke, 725 F.2d 246, 252-54 (4th Cir.) (Hall, J., dissenting), cert. denied, — U.S.-, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).
. The district court noted that, in fact, the jury instructions in this case were remarkably similar to instructions which were upheld in Floyd v. Leeke, 740 F.2d 961 (4th Cir.1984) (unpublished opinion). Floyd was decided after Thomas v. Leeke.