UNITED STATES SUPREME COURT DECISIONS ON-LINE

These cases present the question whether respondents, who were convicted after separate trials on unrelated charges in Ohio state courts, and who failed to comply with Ohio Rule of Criminal Procedure 30 mandating contemporaneous objections to jury instructions, may challenge the constitutionality of those instructions in federal habeas corpus proceedings under 28 U.S.C. § 2254. A provision of Ohio's Criminal Code (§ 2901.05(A)), effective January 1, 1974, placed the burden of proving guilt beyond a reasonable doubt upon the prosecution and provided that "[t]he burden of going forward with the evidence of an affirmative defense is upon the accused." Until 1976, most Ohio courts assumed that the statute did not change Ohio's traditional rule requiring defendants to carry the burden of proving the affirmative defense of self-defense by a preponderance of the evidence. In 1976, however, the Ohio Supreme Court, in State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88, held that the statute placed only the burden of production, not persuasion, on the defendant, and that, once the defendant produced some evidence of self-defense, the prosecutor had to disprove self-defense beyond a reasonable doubt. Respondents' trials occurred after § 2901.05(A)'s effective date, but before the decision in Robinson, and none of the respondents objected to the trial court's jury instruction that the respondent bore the burden of proving self-defense by a preponderance of the evidence. The appropriate Ohio Courts of Appeal affirmed the homicide convictions of respondents Hughes and Bell before the decision in Robinson, and the Ohio Supreme Court declined to review their convictions. Neither of these respondents challenged the self-defense instruction in their appeals. On respondent Isaac's appeal of his assault conviction to the intermediate appellate court, he relied upon the intervening decision in Robinson to challenge the self-defense instruction given at his trial. The court rejected the challenge as having been waived by Isaac's failure to comply with Ohio Rule of Criminal Procedure 30, and the Ohio Supreme clubjuris

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Court dismissed his appeal. Each respondent unsuccessfully sought a writ of habeas corpus from a Federal District Court, but the Court of Appeals reversed all three District Court orders.

Held:

1. Insofar as respondents simply challenged the correctness of the self-defense instructions under Ohio law, they alleged no deprivation of federal rights, and were entitled to no federal habeas relief under 28 U.S.C. § 2254. Respondents' habeas petitions raised only one colorable constitutional claim. Pp. 456 U. S. 119-123.

(a) There is no merit to respondents' claim that § 2901.05(A) implicitly designated absence of self-defense an element of the crimes charged against them, and thus due process required the prosecution to prove such element beyond a reasonable doubt. Merely because a State requires the prosecution to prove a particular circumstance beyond a reasonable doubt does not mean that it has defined that circumstance as an element of the crime. A State may want to assume the burden of disproving an affirmative defense without also designating absence of the defense an element of the crime. The Due Process Clause does not mandate that, when a State treats absence of an affirmative defense as an "element" of the crime for one purpose, it must do so for all purposes. Pp. 456 U. S. 119-121.

(b) A colorable constitutional claim is stated by respondents' argument that, since self-defense negates the elements of the crimes charged against them of voluntary, unlawful, and purposeful or knowing behavior, once the defendant raises the possibility of self-defense, the Due Process Clause requires that the State disprove that defense as part of its task of establishing voluntariness, unlawfulness, and guilty mens rea. The controversy among lower courts as to the viability of this type of claim suggests that respondents' argument states at least a plausible constitutional claim. Pp. 456 U. S. 121-123.

2. Respondents are barred from asserting, in federal habeas corpus proceedings, their constitutional claim, which was forfeited before the state courts because of respondents' failure to comply with Ohio Rule of Criminal Procedure 30. Pp. 456 U. S. 124-135.

(a) While the writ of habeas corpus is a bulwark against convictions that violate "fundamental fairness," it undermines the usual principles of finality of litigation. Liberal allowance of the writ also degrades the prominence of the trial, and costs society the right to punish admitted offenders. Moreover, the writ imposes special costs on the federal system, frustrating both the States' sovereign power to punish offenders and their good faith attempts to honor constitutional rights. These costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts, and thus, as held in Wainwright v. Sykes, 433 U. S. 72, a state prisoner, clubjuris

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barred by procedural default from raising a constitutional claim on direct appeal, may not litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default. The principles of Sykes are not limited to cases in which the constitutional error did not affect the truthfinding function of the trial. Pp. 456 U. S. 126-129.

(b) Cause for respondents' defaults cannot be based on the asserted ground that any objection to Ohio's self-defense instruction would have been futile, since Ohio had long required criminal defendants to bear the burden of proving such affirmative defense. If a defendant perceives a viable constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Nor can cause for respondents' defaults be based on the asserted ground that they could not have known at the time of their trials that the Due Process Clause addresses the burden of proving affirmative defenses. In re Winship, 397 U. S. 358, decided four and one-half years before the first of respondents' trials, laid the basis for their constitutional claim. During the five years following that decision, numerous defendants relied upon Winship to argue that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses, and several lower courts sustained this claim. In light of this activity, it cannot be said that respondents lacked the tools to construct their constitutional claim. Pp. 456 U. S. 130-134.

(c) There is no merit to respondents' contention that the cause-and-prejudice standard of Sykes should be replaced by a plain error inquiry. While federal courts apply a plain error rule for direct review of federal convictions, federal habeas challenges to state convictions entail greater finality problems and special comity concerns. Moreover, a plain error standard is unnecessary to correct miscarriages of justice. Victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard. Pp. 456 U. S. 134-135.

646 F.2d 1129, 635 F.2d 575, and 642 F.2d 451, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., concurred in the result. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 456 U. S. 136. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 456 U. S. 137. clubjuris

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