JUSTICE O'CONNOR delivered the opinion of the Court.
In Wainwright v. Sykes, 433 U. S. 72 (1977), we held that a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, could not litigate that claim in a § 2254 habeas corpus [ Footnote 1 ] proceeding without showing cause for, and actual prejudice from, the default. Applying the principle of Sykes to these cases, we conclude that respondents, who failed to comply with an Ohio rule mandating contemporaneous objections to jury instructions, may not challenge the constitutionality of those instructions in a federal habeas proceeding.
I
Respondents' claims rest in part on recent changes in Ohio criminal law. For over a century, the Ohio courts required criminal defendants to carry the burden of proving self-defense by a preponderance of the evidence. See State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582 (1973); Szalkai v. State, 96 Ohio St. 36, 117 N.E. 12 (1917); Silvus v. State, 22 Ohio St. 90 (1872). A new criminal code, effective January 1, 1974, subjected all affirmative defenses to the following rule:
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.
Ohio Rev.Code Ann. § 2901.05(A) (1975). For more than two years after its enactment, most Ohio courts assumed that this section worked no change in Ohio's traditional burden of proof rules. [ Footnote 2 ] In 1976, however, the Ohio Supreme Court construed the statute to place only the burden of production, not the burden of persuasion, on the defendant. Once the defendant produces some evidence of self-defense, the state court ruled, the prosecutor must disprove self-defense beyond a reasonable doubt. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (syllabus by the court). [ Footnote 3 ] The present actions arose because Ohio tried and convicted respondents after the effective date of § 2901.05(A), but before the Ohio Supreme Court's interpretation of that statute in Robinson. [ Footnote 4 ]
On December 16, 1974, an Ohio grand jury indicted respondent Hughes for aggravated murder. [ Footnote 5 ] At trial, the State showed that, in the presence of seven witnesses, Hughes shot and killed a man who was keeping company with his former girlfriend. Prosecution witnesses testified that the victim was unarmed, and had just attempted to shake hands with Hughes. Hughes, however, claimed that he acted in self-defense. His testimony suggested that he feared the victim, a larger man, because he had touched his pocket while approaching Hughes. The trial court instructed the jury that Hughes bore the burden of proving this defense by a preponderance of the evidence. Counsel for Hughes did not specifically object to this instruction. [ Footnote 6 ]
On January 24, 1975, the jury convicted Hughes of voluntary manslaughter, a lesser included offense of aggravated murder. [ Footnote 7 ] On September 24, 1975, the Summit County Court of Appeals affirmed the conviction, and on March 19, 1976, the Supreme Court of Ohio dismissed Hughes' appeal, finding no substantial constitutional question. [ Footnote 8 ] Neither of these appeals challenged the jury instruction on self-defense.
Ohio tried respondent Bell for aggravated murder in April, 1975. Evidence at trial showed that Bell was one of a group of bartenders who had agreed to help one another if trouble developed at any of their bars. On the evening of the murder, one of the bartenders called Bell and told him that he feared trouble from five men who had entered his bar. When Bell arrived at the bar, the bartender informed him that the men had left. Bell pursued them and gunned one of the men down in the street.
Bell defended on the ground that he had acted in self-defense. He testified that, as he approached two of the men, the bartender shouted: "He's got a gun" or "Watch out, he's got a gun." At this warning, Bell started shooting. As in Hughes' case, the trial court instructed the jury that Bell had the burden of proving self-defense by a preponderance of the evidence. Bell did not object to this instruction, and the jury convicted him of murder, a lesser included offense of the charged crime. [ Footnote 9 ]
Bell appealed to the Cuyahoga County Court of Appeals, but failed to challenge the instruction assigning him the burden of proving self-defense. The Court of Appeals affirmed Bell's conviction on April 8, 1976. [ Footnote 10 ] Bell appealed further to the Ohio Supreme Court, again neglecting to challenge the self-defense instruction. That court overruled his motion for leave to appeal on September 17, 1976, [ Footnote 11 ] two months after it construed § 2901.05(A) to place the burden of proving absence of self-defense on the prosecution. See State v. Robinson, 47 Ohio St.2d 103, 351 N.E. 88.
Respondent Isaac was tried in September, 1975, for felonious assault. [ Footnote 12 ] The State showed that Isaac had severely beaten his former wife's boyfriend. Isaac claimed that the boyfriend punched him first, and that he acted solely in self-defense. Without objection from Isaac, the court instructed the jury that Isaac carried the burden of proving this defense by a preponderance of the evidence. The jury acquitted Isaac of felonious assault, but convicted him of the lesser included offense of aggravated assault. [ Footnote 13 ]
Ten months after Isaac's trial, the Ohio Supreme Court decided State v. Robinson, supra. In his appeal to the Pickaway County Court of Appeals, [ Footnote 14 ] Isaac relied upon Robinson to challenge the burden of proof instructions given at his trial. The court rejected this challenge because Isaac had failed to object to the jury instructions during trial, as required by Ohio Rule of Criminal Procedure 30. [ Footnote 15 ] This default waived Isaac's claim. State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960); State v. Slone, 45 Ohio App.2d 24, 340 N.E.2d 413 (1975).
The Supreme Court of Ohio dismissed Isaac's appeal for lack of a substantial constitutional question. [ Footnote 16 ] On the same day, that court decided State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977), and State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977), vacated in part and remanded, 438 U.S. 911 (1978). In Humphries, the court ruled that every criminal trial held on or after January 1, 1974, "is required to be conducted in accordance with the provisions of [Ohio Rev.Code Ann. § 2901.05]." 51 Ohio St.2d at 95, 364 N.E.2d at 1355 (syllabus by the court). The court, however, refused to extend this ruling to a defendant who failed to comply with Ohio Rule of Criminal Procedure 30. Id. at 102-103, 364 N.E.2d at 1359. In Williams, the court declined to consider a constitutional challenge to Ohio's traditional self-defense instruction, again because the defendant had not properly objected to the instruction at trial.
All three respondents unsuccessfully sought writs of habeas corpus from Federal District Courts. Hughes' petition alleged that the State had violated the Fifth and Fourteenth Amendments by failing to prove guilt "as to each and every essential element of the offense charged" and by failing to "so instruct" the jury. The District Judge rejected this claim, finding that Ohio law does not consider absence of self-defense an element of aggravated murder or voluntary manslaughter. Although the self-defense instructions at Hughes' trial might have violated § 2901.05(A), they did not violate the Federal Constitution. Alternatively, the District Judge held that Hughes had waived his constitutional claim by failing to comply with Ohio's contemporaneous objection rule. Since Hughes offered no explanation for his failure to object, and showed no actual prejudice, Wainwright v. Sykes, 433 U. S. 72 (1977), barred him from asserting the claim. Hughes v. Engle, Civ. Action No. C 77-156A (ND Ohio, June 26, 1979).
Bell's petition for habeas relief similarly alleged that the trial judge had violated due process by instructing "the jury that the accused must prove an affirmative defense by a preponderance of the evidence." The District Court acknowledged that Bell had never raised this claim in the state courts. Observing, however, that the State addressed Bell's argument on the merits, the District Court ruled that Bell's default was not a "deliberate bypass." See Fay v. Noia, 372 U. S. 391 (1963). Although the court cited our opinion in Wainwright v. Sykes, supra, it did not inquire whether Bell had shown cause for or prejudice from his procedural waiver. The court then ruled that Ohio could constitutionally burden Bell with proving self-defense, since it had not defined absence of self-defense as an element of murder. Bell v. Perini, No. C 78-343 (ND Ohio, Dec. 26, 1978).
Bell moved for reconsideration, urging that § 2901.05(A) had, in fact, defined absence of self-defense as an element of murder. The District Court rejected this argument, and then declared that the "real issue" was whether Bell was entitled to retroactive application of State v. Robinson. Bell failed on this claim as well, since Ohio's decision to limit retroactive application of Robinson "substantially further[ed] the State's legitimate interest in the finality of its decisions." App. to Pet. for Cert. A59. Indeed, the District Court noted that this Court had sanctioned just this sort of limit on retroactivity. See Hankerson v. North Carolina, 432 U. S. 233, 432 U. S. 244, n. 8 (1977). Bell v. Perini, No. C 78-343 (ND Ohio, Jan. 23, 1979).
Isaac's habeas petition was more complex than those submitted by Hughes and Bell. He urged that the Ohio Supreme Court had "refuse[d] to give relief [to him], despite its own pronouncement" that State v. Robinson would apply retroactively. In addition, he declared broadly that the Ohio court's ruling was "contrary to the Supreme Court of the United States in regard to proving self-defense." The District Court determined that Isaac had waived any constitutional claims by failing to present them to the Ohio trial court. Since he further failed to show either cause for or actual prejudice from the waiver, see Wainwright v. Sykes, supra, he could not present his claim in a federal habeas proceeding. Isaac v. Engle, Civ. Action No. C-2-7278 (SD Ohio, June 26, 1978).
The Court of Appeals for the Sixth Circuit reversed all three District Court orders. In Isaac v. Engle, 646 F.2d 1129 (1980), a majority of the en banc court ruled that Wainwright v. Sykes did not preclude consideration of Isaac's constitutional claims. At the time of Isaac's trial, the court noted, Ohio had consistently required defendants to prove affirmative defenses by a preponderance of the evidence. The futility of objecting to this established practice supplied adequate cause for Isaac's waiver. Prejudice, the second prerequisite for excusing a procedural default, was "clear," since the burden of proof is a critical element of factfinding and since Isaac had made a substantial issue of self-defense. 646 F.2d at 1134.
A majority of the court also believed that the instructions given at Isaac's trial violated due process. Four judges thought that § 2901.05(A) defined the absence of self-defense as an element of felonious and aggravated assault. While the State did not have to define its crimes in this manner, "due process require[d] it to meet the burden that it chose to assume." 646 F.2d at 1135. A fifth judge believed that, even absent § 2901.05(A), the Due Process Clause would compel the prosecution to prove absence of self-defense, because that defense negates criminal intent, an essential element of aggravated and felonious assault. A sixth judge agreed that Ohio had violated Isaac's due process rights, but would have concentrated on the State's arbitrary refusal to extend the retroactive benefits of State v. Robinson, to Isaac. [ Footnote 17 ]
Relying on the en banc decision in Isaac, two Sixth Circuit panels ordered the District Court to release Bell and Hughes unless the State chose to retry them within a reasonable time. Bell v. Perini, 635 F.2d 575 (1980); [ Footnote 18 ] Hughes v. Engle, judgt. order reported at 642 F.2d 451 (1980). We granted certiorari to review all three Sixth Circuit judgments. 451 U.S. 906 (1981).
II
A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held "in custody in violation of the Constitution or laws or treaties of the United States." Insofar as respondents simply challenge the correctness of the self-defense instructions under Ohio law, they allege no deprivation of federal rights, and may not obtain habeas relief. The lower courts, however, read respondents' habeas petitions to state at least two constitutional claims. Respondents repeat both of those claims here.
A
First, respondents argue that § 2901.05, which governs the burden of proof in all criminal trials, implicitly designated absence of self-defense an element of the crimes charged against them. Since Ohio defined its crimes in this manner, respondents contend, our opinions in In re Winship, 397 U. S. 358 (1970); Mullaney v. Wilbur, 421 U. S. 684 (1975); and Patterson v. New York, 432 U. S. 197 (1977), required the prosecution to prove absence of self-defense beyond a reasonable doubt. A plurality of the en banc Sixth Circuit seemed to accept this argument in Isaac's appeal, finding that due process required the State "to meet the burden that it chose to assume." 646 F.2d at 1135.
A careful review of our prior decisions reveals that this claim is without merit. [ Footnote 19 ] Our opinions suggest that the prosecution's constitutional duty to negate affirmative defenses may depend, at least in part, on the manner in which the State defines the charged crime. Compare Mullaney v. Wilbur, supra, with Patterson v. New York, supra. These decisions, however, do not suggest that, whenever a State requires the prosecution to prove a particular circumstance beyond a reasonable doubt, it has invariably defined that circumstance as an element of the crime. [ Footnote 20 ] 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. The structure of Ohio's Code suggests simply that the State decided to assist defendants by requiring the prosecution to disprove certain affirmative defenses. Absent concrete evidence that the Ohio Legislature or courts understood § 2901.05(A) to go further than this, we decline to accept respondents' construction of state law. While they attempt to cast their first claim in constitutional terms, we believe that this claim does no more than suggest that the instructions at respondents' trials may have violated state law. [ Footnote 21 ]
B
Respondents also allege that, even without considering § 2901.05, Ohio could not constitutionally shift the burden of proving self-defense to them. All of the crimes charged against them require a showing of purposeful or knowing behavior. These terms, according to respondents, imply a degree of culpability that is absent when a person acts in self-defense. See Committee Comment to Ohio Rev.Code Ann. § 2901.21 (1975) ("generally, an offense is not committed unless a person… has a certain guilty state of mind at the time of his act or failure [to act]"); State v. Clifton, 32 Ohio App.2d 284, 28287, 290 N.E.2d 921, 923 (1972) ("one who kills in self-defense does so without the mens rea that otherwise would render him culpable of the homicide"). In addition, Ohio punishes only actions that are voluntary, Ohio Rev.Code Ann. § 2901.21(A)(1) (1975), and unlawful, State v. Simon, No. 6262, p. 13 (Ct.App. Montgomery County, Ohio, Jan. 16, 1980), modified on reconsideration (Jan. 22, 1980). Self-defense, respondents urge, negates these elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, respondents contend that the State must disprove that defense as part of its task of establishing guilty mens rea, voluntariness, and unlawfulness. The Due Process Clause, according to respondents' interpretation of Winship, Mullaney, and Patterson, forbids the States to disavow any portion of this burden. [ Footnote 22 ]
This argument states a colorable constitutional claim. Several courts have applied our Mullaney and Patterson opinions to charge the prosecution with the constitutional duty of proving absence of self-defense. [ Footnote 23 ] Most of these decisions adopt respondents' reasoning that due process commands the prosecution to prove absence of self-defense if that defense negates an element, such as purposeful conduct, of the charged crime. While other courts have rejected this type of claim, [ Footnote 24 ] the controversy suggests that respondents' second argument states at least a plausible constitutional claim. We proceed, therefore, to determine whether respondents preserved this claim before the state courts and, if not, to inquire whether the principles articulated in Wainwright v. Sykes, 433 U. S. 72 (1977), bar consideration of the claim in a federal habeas proceeding. [ Footnote 25 ]
III
None of the respondents challenged the constitutionality of the self-defense instruction at trial. [ Footnote 26 ] They thus violated Ohio Rule of Criminal Procedure 30, which requires contemporaneous objections to jury instructions. Failure to comply with Rule 30 is adequate, under Ohio law, to bar appellate consideration of an objection. See, e.g., State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977); State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971). The Ohio Supreme Court has enforced this bar against the very due process argument raised here. State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977), vacated in part and remanded, 438 U.S. 911 (1978). [ Footnote 27 ] We must determine, therefore, whether respondents may litigate, in a federal habeas proceeding, a constitutional claim that they forfeited before the state courts. [ Footnote 28 ]
A
The writ of habeas corpus indisputably holds an honored position in our jurisprudence. Tracing its roots deep into English common law, [ Footnote 29 ] it claims a place in Art. I of our Constitution. [ Footnote 30 ] Today, as in prior centuries, the writ is a bulwark against convictions that violate "fundamental fairness." Wainwright v. Sykes, 433 U.S. at 433 U. S. 97 (STEVENS, J., concurring).
We have always recognized, however, that the Great Writ entails significant costs. [ Footnote 31 ] Collateral review of a conviction extends the ordeal of trial for both society and the accused. As Justice Harlan once observed,
[b]oth the individual criminal defendant and society have an interest in insuring that there will, at some point, be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error, but rather on whether the prisoner can be restored to a useful place in the community.
Sanders v. United States, 373 U. S. 1, 373 U. S. 225 (1963) (dissenting opinion). See also Hankerson v. North Carolina, 432 U.S. at 432 U. S. 247 (POWELL, J., concurring in judgment). By frustrating these interests, the writ undermines the usual principles of finality of litigation. [ Footnote 32 ]
Liberal allowance of the writ, moreover, degrades the prominence of the trial itself. A criminal trial concentrates society's resources at one "time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence." Wainwright v. Sykes, supra, at 433 U. S. 90. Our Constitution and laws surround the trial with a multitude of protections for the accused. Rather than enhancing these safeguards, ready availability of habeas corpus may diminish their sanctity by suggesting to the trial participants that there may be no need to adhere to those safeguards during the trial itself.
We must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders. Passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible. While a habeas writ may, in theory, entitle the defendant only to retrial, in practice, it may reward the accused with complete freedom from prosecution.
Finally, the Great Writ imposes special costs on our federal system. The States possess primary authority for defining and enforcing the criminal law. In criminal trials, they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good faith attempts to honor constitutional rights. See Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 263 -265 (1973) (POWELL, J., concurring). [ Footnote 33 ]
In Wainwright v. Sykes, we recognized that these costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts. In that situation, the trial court has had no opportunity to correct the defect and avoid problematic retrials. The defendant's counsel, for whatever reasons, has detracted from the trial's significance by neglecting to raise a claim in that forum. [ Footnote 34 ] The state appellate courts have not had a chance to mend their own fences and avoid federal intrusion. Issuance of a habeas writ, finally, exacts an extra charge by undercutting the State's ability to enforce its procedural rules. These considerations supported our Sykes ruling that, when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice.
Respondents urge that we should limit Sykes to cases in which the constitutional error did not affect the truthfinding function of the trial. In Sykes itself, for example, the prisoner alleged that the State had violated the rights guaranteed by Miranda v. Arizona, 384 U. S. 436 (1966). While this defect was serious, it did not affect the determination of guilt at trial.
We do not believe, however, that the principles of Sykes lend themselves to this limitation. The costs outlined above do not depend upon the type of claim raised by the prisoner. While the nature of a constitutional claim may affect the calculation of cause and actual prejudice, it does not alter the need to make that threshold showing. We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.
B
Respondents seek cause for their defaults in two circumstances. First, they urge that they could not have known at the time of their trials that the Due Process Clause addresses the burden of proving affirmative defenses. Second, they contend 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 this affirmative defense.
We note at the outset that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial. If a defendant perceives a 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. [ Footnote 35 ] Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes. [ Footnote 36 ]
Respondents' claim, however, is not simply one of futility. They further allege that, at the time they were tried, they could not know that Ohio's self-defense instructions raised constitutional questions. A criminal defendant, they urge, may not waive constitutional objections unknown at the time of trial.
We need not decide whether the novelty of a constitutional claim ever establishes cause for a failure to object. [ Footnote 37 ] We might hesitate to adopt a rule that would require trial counsel either to exercise extraordinary vision or to object to every aspect of the proceedings in the hope that some aspect might mask a latent constitutional claim. On the other hand, later discovery of a constitutional defect unknown at the time of trial does not invariably render the original trial fundamentally unfair. [ Footnote 38 ] These concerns, however, need not detain us here, since respondents' claims were far from unknown at the time of their trials.
In re Winship, 397 U. S. 358 (1970), decided four and one-half years before the first of respondents' trials, laid the basis for their constitutional claim. In Winship, we held 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.
Id. at 397 U. S. 364. During the five years following this decision, [ Footnote 39 ] dozens of defendants relied upon this language to challenge the constitutionality of rules requiring them to bear a burden of proof. [ Footnote 40 ] In most of these cases, the defendants' claims countered well-established principles of law. Nevertheless, numerous courts agreed that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses. [ Footnote 41 ] In light of this activity, we cannot say that respondents lacked the tools to construct their constitutional claim. [ Footnote 42 ]
We do not suggest that every astute counsel would have relied upon Winship to assert the unconstitutionality of a rule saddling criminal defendants with the burden of proving an affirmative defense. Every trial presents a myriad of possible claims. Counsel might have overlooked or chosen to omit respondents' due process argument while pursuing other avenues of defense. 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. Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default. [ Footnote 43 ]
C
Respondents, finally, urge that we should replace or supplement the cause-and-prejudice standard with a plain error inquiry. We rejected this argument when pressed by a federal prisoner, see United States v. Frady, post, p. 456 U. S. 152, and find it no more compelling here. The federal courts apply a plain error rule for direct review of federal convictions. Fed.Rule Crim.Proc. 52(b). Federal habeas challenges to state convictions, however, entail greater finality problems and special comity concerns. We remain convinced that the burden of justifying federal habeas relief for state prisoners is "greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U. S. 145, 431 U. S. 154 (1977); United States v. Frady, post at 456 U. S. 166. [ Footnote 44 ]
Contrary to respondents' assertion, moreover, a plain error standard is unnecessary to correct miscarriages of justice. The terms "cause" and "actual prejudice" are not rigid concepts; they take their meaning from the principles of comity and finality discussed above. In appropriate cases, those principles must yield to the imperative of correcting a fundamentally unjust incarceration. Since we are confident that victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard, see Wainwright v. Sykes, 433 U.S. at 433 U. S. 91 ; id. at 433 U. S. 94 -97 (STEVENS, J., concurring), we decline to adopt the more vague inquiry suggested by the words "plain error."
IV
Close analysis of respondents' habeas petitions reveals only one colorable constitutional claim. Because respondents failed to comply with Ohio's procedures for raising that contention, and because they have not demonstrated cause for the default, they are barred from asserting that claim under 28 U.S.C. § 2254. The judgments of the Court of Appeals are reversed, and these cases are remanded for proceedings consistent with this opinion.
So ordered.
JUSTICE BLACKMUN concurs in the result.
Notes
* Together with Perini, Correctional Superintendent v. Bell, and Engle, Correctional Superintendent v. Hughes, also on certiorari to the same court ( see this Court's Rule 19.4).
[ Footnote 1 ]
Title 28 U.S.C. § 2254(a) empowers "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court" to
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
This statutory remedy may not be identical in all respects to the common law writ of habeas corpus. See Wainwright v. Sykes, 433 U.S. at 433 U. S. 78.
[ Footnote 2 ]
See, e.g., State v. Rogers, 43 Ohio St.2d 28, 30, 330 N.E.2d 674, 676 (1975) (noting that "self-defense is an affirmative defense, which must be established by a preponderance of the evidence"), cert. denied, 423 U.S. 1061 (1976). But see State v. Matthews, No. 74AP-428, p. 9 (Ct.App. Franklin County, Ohio, Dec. 24, 1974) (§ 2901.05(A) "evinces a legislative intent to change the burden of the defendant with respect to affirmative defenses"); 1 O. Schroeder & L. Katz, Ohio Criminal Law and Practice § 2901.05, p. 14 (1974) ("The provisions of 2901.05(A) follow the modern statutory trend in this area, requiring the accused to raise the affirmative defense, but leaving the burden of persuasion upon the prosecution"); Student Symposium: The Proposed Ohio Criminal Code -Reform and Regression, 33 Ohio St.L.J. 351, 420 (1972) (suggesting that legislators intended to change traditional rule).
[ Footnote 3 ]
In Ohio, the court's syllabus contains the controlling law. See Haas v. State, 103 Ohio St. 1, 7-8, 132 N.E. 158, 159-160 (1921).
[ Footnote 4 ]
Two years after Robinson, the Ohio Legislature once again amended Ohio's burden of proof law. The new § 2901.05(A), effective November 1, 1978, provides:
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, a preponderance of the evidence, for an affirmative defense, is upon the accused.
Ohio Rev.Code Ann. § 2901.05(A) (Supp.1980) (emphasis added). This amendment has no effect on the litigation before us. Throughout this