                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

THEODORE BEECH MEDLEY,                    No. 05-55295
             Petitioner-Appellant,
               v.                           D.C. No.
                                         CV-03-01509-LGB
D. L. RUNNELS, Warden,
                                            OPINION
            Respondent-Appellee.
                                     
       Appeal from the United States District Court
          for the Central District of California
       Lourdes G. Baird, District Judge, Presiding

                  Argued and Submitted
         June 20, 2007—San Francisco, California

                 Filed November 1, 2007

Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,
         Michael Daly Hawkins, Sidney R. Thomas,
        Barry G. Silverman, Kim McLane Wardlaw,
  Raymond C. Fisher, Ronald M. Gould, Richard A. Paez,
 Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton,
 Jay S. Bybee, Consuelo M. Callahan, and Sandra S. Ikuta,
                       Circuit Judges.

                Opinion by Judge Callahan
   Partial Concurrence and Partial Dissent by Judge Ikuta




                           14365
14368                MEDLEY v. RUNNELS


                        COUNSEL

Wayne Young, Santa Monica, California, for petitioner-
appellant Theodore B. Medley.

Robert M. Foster, Supervising Deputy Attorney General, San
Diego, California, for respondent-appellee D. L. Runnels,
Warden; Bill Lockyer, Attorney General of the State of Cali-
fornia, Robert R. Anderson, Chief Assistant Attorney Gen-
eral, and Gary W. Schons, Senior Assistant Attorney General,
were on the brief.
                         MEDLEY v. RUNNELS                        14369
                              OPINION

CALLAHAN, Circuit Judge:

   Theodore Beech Medley appeals from the district court’s
order denying his 28 U.S.C. § 2254 habeas corpus petition
challenging his conviction for murder in state court and a
related twenty-year enhancement for discharge of a firearm
during commission of a felony. Medley alleges that: (1) he
received ineffective assistance of counsel when his attorney
ignored Medley’s requests to testify; (2) the state trial court
violated his right to due process by instructing the jury that a
flare gun is a firearm, thus taking from the jury the determina-
tion of an element of the offense; and (3) he received ineffec-
tive assistance of counsel when his trial and appellate counsel
failed to contest the jury instructions. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm the district court’s
denial of Medley’s petition for a writ of habeas corpus as to
the first issue. As to the firearm enhancement, we reverse and
remand with instructions to grant a conditional writ of habeas
corpus, with instructions for the state court either to resen-
tence without applying the firearm enhancement or to allow
the State to retry the enhancement charge under California
Penal Code section 12022.53(c) within a reasonable time as
set by the district court.1

                                   I.

   In 1998, Medley roomed with Michael Gonzales in River-
side, California. The two had quarreled, and Medley told a
witness, his girlfriend Amie Denby, that he was going to get
his flare gun to get rid of Gonzales. Medley retrieved a flare
gun and returned to a park where he found Gonzales. Medley
shot Gonzales with a flare, but it did not harm him. Gonzales
  1
   Because we are vacating Medley’s sentence enhancement, we need not
consider Medley’s third argument, that he received ineffective assistance
of counsel with respect to the jury instructions.
14370                   MEDLEY v. RUNNELS
ran and Medley pursued. Medley tried again to shoot Gon-
zales with a flare but missed. Medley then discarded the flare
gun, pulled out a pocket knife, and chased down Gonzales.
Medley inflicted more than four dozen knife wounds, eventu-
ally slitting Gonzales’s throat from ear to ear. Medley and
Denby then took the victim’s car. Medley confessed the
details of the murder to Denby, who later testified against
him. Medley was arrested soon after the murder. Police found
the discarded flare gun in the park.

   Medley was charged with murder, including an enhance-
ment for discharge of a firearm during the felony. At the start
of the trial, Medley’s attorney informed the court that he
intended to challenge the assertion that a flare gun was a fire-
arm. Relying on California Penal Code section 12001(b),
which defines a firearm as “any device designed to be used
as a weapon, from which is expelled through a barrel, a pro-
jectile by the force of any explosion, or other form of combus-
tion,” the trial court concluded that “in fact, that’s how the
flare gun works. If it falls within that definition, it certainly
qualifies. . . . If in fact [the expert witness] testifies that’s how
it works, then the issue is moot.” Later, during the jury phase
of the trial, an expert witness testified that a flare gun operates
by expelling a flare through a tube by means of an explosion
similar to how an ordinary firearm operates. The judge then
instructed the jury that “[a] flare gun is a firearm.” Medley did
not specifically object to this jury instruction.

   During the trial, the defense relied on the theory that some-
one else had killed Gonzales but did not call any witnesses.
After the defense had rested—but before final arguments—
Medley informed the court that he wished to testify, but his
lawyer had not permitted it. At that time, Medley’s lawyer
informed the court that he had advised Medley not to testify
because he would be impeached with his prior convictions
and by the details of a lengthy interview Medley gave police
after his arrest.
                         MEDLEY v. RUNNELS                       14371
   A jury convicted Medley of murder and of discharge of a
firearm during commission of a felony. On direct appeal,
Medley challenged the jury instructions on other grounds but
did not mention the flare gun jury instruction.

   Medley then filed a state habeas petition in California
Superior Court, which denied the petition as an attempted sec-
ond appeal. The California Court of Appeal and California
Supreme Court both denied Medley’s request for habeas relief
without commenting on the merits. Medley’s habeas petition
to the superior court focused on alleged ineffective assistance
of counsel (“IAC”), but his petitions to the state appellate
courts also argued that the trial court had erred by instructing
the jury that a flare gun was a firearm.

   Medley then filed a federal habeas petition in the District
Court for the Central District of California, again arguing IAC
and violation of the right to a jury determination with respect
to whether the flare gun was a firearm. The district court
denied the writ, holding that the statutory definition of “fire-
arm” was a question of state law, and therefore it was unre-
viewable on a federal habeas petition. After a three-judge
panel of this court affirmed in a memorandum disposition, we
granted rehearing en banc.2

                                  II.

   Medley first claims that his attorney provided ineffective
assistance by denying him the right to testify. Under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court can grant relief only if the state
court decision affirming a petitioner’s conviction was “con-
trary to or involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court
of the United States” or if the State proceeding “resulted in a
  2
   Medley v. Runnels, 188 Fed. Appx. 580 (9th Cir. 2006); Medley v. Run-
nels, 486 F.3d 1127 (9th Cir. April 30, 2007).
14372                  MEDLEY v. RUNNELS
decision that was based on an unreasonable determination of
the facts . . . .” 28 U.S.C. § 2254(d).

   [1] Strickland v. Washington, 466 U.S. 668 (1984), sets
forth the constitutional standard for relief based on ineffective
assistance of counsel. See Dows v. Wood, 211 F.3d 480, 484-
85 (9th Cir. 2000). To succeed on an IAC claim, the defen-
dant must show: (1) “that counsel’s performance was defi-
cient” and (2) “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. The Supreme Court fur-
ther noted that “a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered . . . as a result of the alleged deficiencies.” Id. at 697.

   [2] Medley has not shown that his inability to testify was
prejudicial. Medley argues that he would have testified that he
killed Gonzales in self-defense. Medley’s lawyer recom-
mended that Medley not testify because he would have been
impeached by his prior convictions and statements he made
during a lengthy interview he gave police, which apparently
were inconsistent with what Medley intended to testify. More-
over, as the Appellee (“the State”) points out, Medley’s self-
defense testimony would have been inconsistent with the
“someone else did it” defense previously advanced. Also,
there was more than sufficient other evidence to convict Med-
ley. Medley’s girlfriend testified that Medley admitted to the
murder, with no mention of any need to act in self-defense,
and that Medley had described the details of the crime right
after it occurred exactly as did the forensic experts who would
later testify as to how the crime transpired. In addition, Med-
ley’s story of self-defense would have been undermined by
his theft of the victim’s car and the fact that the victim had
more than four dozen knife wounds (which would appear to
go well beyond the force necessary for self-defense). In sum,
our review of the record convinces us that the testimony Med-
ley wished to give would not have affected the outcome of the
trial. Accordingly, Medley has failed to prove that the alleged
                      MEDLEY v. RUNNELS                   14373
IAC was prejudicial with respect to his murder conviction,
and he is not entitled to relief on this issue. See id. at 687.

                              III.

   The heart of Medley’s appeal is the contention that the trial
court denied him due process when the trial judge instructed
the jury that a flare gun is a firearm. Under AEDPA, Medley
is only entitled to relief if the state court decision affirming
his conviction was an unreasonable application of clearly
established federal law or the State proceeding resulted in a
decision that was based on an unreasonable determination of
the facts. 28 U.S.C. § 2254(d).

   [3] The Supreme Court has held that “the Due Process
Clause [of the Fourteenth Amendment] 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.” In re Winship, 397 U.S. 358, 364
(1970); Middleton v. McNeil, 541 U.S. 433, 437 (2004). In
addition, every fact necessary to increase the sentence beyond
the statutory maximum (other than the fact of prior convic-
tion) must be proved to a jury beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Trial
courts may not create mandatory presumptions which relieve
the prosecution of its burden to prove facts to the jury beyond
a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510,
516-17, 524 (1979). Furthermore, mixed questions of law and
of fact must be resolved by the jury. United States v. Gaudin,
515 U.S. 506, 514 (1995) (“[T]he jury’s constitutional respon-
sibility is not merely to determine the facts, but to apply the
law to those facts and draw the ultimate conclusion of guilt
or innocence.”). However, a trial judge may instruct the jury
as to the meaning of purely legal terms. See Hamling v.
United States, 418 U.S. 87, 118 (1974).

   [4] The Supreme Court has also held that “a state court’s
interpretation of state law, including one announced on direct
14374                 MEDLEY v. RUNNELS
appeal of the challenged conviction, binds a federal court sit-
ting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76,
126 S. Ct. 602, 604 (2005). Therefore, a federal court may not
overturn a conviction simply because the state court misinter-
prets state law. See id. at 605; Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). However, an “unforeseeable state-court
construction of a criminal statute” may deprive a defendant of
due process of law, because in that circumstance the defen-
dant lacks “fair warning that his contemplated conduct consti-
tutes a crime.” Bouie v. City of Columbia, 378 U.S. 347, 354-
55 (1964).

                              IV.

   Before addressing the merits of Medley’s flare gun argu-
ment, we consider certain procedural hurdles. On habeas
review, we look through unexplained state court decisions
leaving, in effect, the denial of post-conviction relief to the
last reasoned state court decision to address the claim at issue.
Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); see also 28
U.S.C. § 2254(d).

                               A.

   The State suggests that there was no decision at all in the
state courts with respect to the flare gun issue, and therefore,
a federal court sitting in habeas has nothing to review. The
State notes that neither the California Court of Appeal nor the
California Supreme Court discussed the flare gun issue and
argues that the trial court’s ruling on the issue was not suffi-
cient to qualify as a reasoned decision. In other words,
because the state courts did not explicitly rule on the issue, no
federal court can rule on it either.

   We disagree. The trial court effectively ruled on this issue
when it decided that if the prosecution presented evidence as
to how a flare gun functions, then the issue of whether the
flare gun was a firearm would be moot. The trial judge stated:
                           MEDLEY v. RUNNELS                           14375
“So, in fact, that’s how the flare gun works. If it falls within
that definition, it certainly qualifies. . . . If in fact [the expert
witness] testifies that’s how it works, then the issue is moot.”
Although terse, this pretrial ruling constituted the last rea-
soned decision under Ylst. Therefore, we review the ruling of
the trial court.3

                                      B.

   Another procedural hurdle to federal habeas relief is that
generally a petitioner must have “exhausted the remedies
available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). Here, Medley raised the flare gun issue in
his state habeas petition. The State does not generally contest
that this collateral attack was sufficient to exhaust the claim,4
but it asserted at oral argument that the claim Medley makes
now is not identical to the one that was exhausted in state
court. The State contends that Medley had only argued in
state court that the judge had given the jury a conclusive pre-
sumption, which, in the State’s view, is not taking a finding
of fact from the jury. Although a conclusive presumption and
a finding of fact are analytically distinct, Medley’s constitu-
tional claim is nonetheless the same: he claims he was con-
victed based on a fact not proved to the jury beyond a
reasonable doubt. He asserted this constitutional claim in his
state habeas petitions, and his collateral challenge is sufficient
  3
     Even if the state courts had not ruled on this issue, the lack of a ruling
would not be a bar to habeas review. See Pirtle v. Morgan, 313 F.3d 1160,
1167 (“[W]hen it is clear that a state court has not reached the merits of
a properly raised issue, we must review it de novo.”). Further, when a state
court does reach a decision on the merits but provides no reasoning for the
decision, we conduct “an independent review of the record . . . to deter-
mine whether the state court clearly erred in its application of controlling
federal law.” Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000); see
also Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
   4
     At oral argument, the State also expressly confirmed that it was not
asserting that the state court’s decision constituted a procedural bar to this
claim.
14376                  MEDLEY v. RUNNELS
to constitute exhaustion. See Johnson v. Zenon, 88 F.3d 828,
829 (9th Cir. 1996) (explaining that a habeas petitioner has
satisfied the exhaustion requirement if the federal claim was
presented to the highest state court with jurisdiction to con-
sider it).

                               V.

   [5] The State does not dispute that every fact necessary to
prove an element of the offense must be proved to the jury.
The State argues, however, that when the court instructed the
jury that “a flare gun is a firearm,” the court did not create a
mandatory presumption or relieve the prosecution of the need
to prove any fact. Rather, according to the State, the trial court
merely provided the jury with a legal interpretation of the
word “firearm.” California Penal Code section 12022.53(c)
provides: “Notwithstanding any other provision of law, any
person who, in the commission of a felony specified in subdi-
vision (a), personally and intentionally discharges a firearm,
shall be punished by an additional and consecutive term of
imprisonment in the state prison for 20 years.” A firearm, for
purposes of this offense, is defined as “any device, designed
to be used as a weapon, from which is expelled through a bar-
rel, a projectile by the force of any explosion or other form
of combustion.” Cal. Pen. Code § 12001(b) (emphasis added).

   In Sandstrom the Supreme Court confronted an analogous
situation involving whether a jury instruction took an element
of an offense away from the jury. The Court explained:

    It is clear that under Montana law, whether the crime
    was committed purposely or knowingly is a fact nec-
    essary to constitute the crime of deliberate homicide.
    Indeed, it was the lone element of the offense at
    issue in Sandstrom’s trial, as he confessed to causing
    the death of the victim, told the jury that knowledge
    and purpose were the only questions he was contro-
    verting, and introduced evidence solely on those
                      MEDLEY v. RUNNELS                    14377
    points. . . . Thus, the question before this Court is
    whether the challenged jury instruction had the
    effect of relieving the State of the burden of proof
    enunciated in Winship on the critical question of
    petitioner’s state of mind.

Sandstrom, 442 U.S. at 520-21 (internal citations omitted).
The question before us is analogous to the issue in Sandstrom:
Did the trial judge’s instruction that “[a] flare gun is a fire-
arm” relieve the State of the burden of proof enunciated in
Winship on the critical question of whether Medley’s flare
gun was designed to be used as a weapon?

   The State concedes that it must prove as an element of the
offense that the defendant discharged a “firearm.” See People
v. Jacobs, 193 Cal. App. 3d 375, 380 (Cal. Ct. App. 1987)
(“Whether the defendant was armed with and personally used
a firearm are factual questions for the jury’s determination.”)
(citation omitted). The State asserts, however, that the word
“firearm” is a legal term of art and that the trial judge merely
informed the jury that as a legal matter, a flare gun was a fire-
arm, and the jury was still left to decide whether Medley had
discharged the flare gun during the commission of a murder.

   [6] Medley counters that “firearm” is defined by statute,
and the statute creates distinct sub-elements of the crime
which the prosecution is required to prove. In other words,
according to Medley, the jury must decide whether the object
used by the defendant was in fact (1) designed to be used as
a weapon and (2) expels a projectile (3) through a barrel, (4)
by the force of an explosion or other form of combustion. We
agree. In order to prove that the object Medley carried was a
firearm under the statute, the prosecution had to prove to the
jury beyond a reasonable doubt each of these four sub-
elements. By instructing the jury that a flare gun is a firearm,
the court did not permit the jury to make the factual determi-
nation as to whether the object used by Medley was designed
to be used as a weapon and expels a projectile through a bar-
14378                      MEDLEY v. RUNNELS
rel by the force of an explosion. The State’s arguments to the
contrary are not persuasive.5

                                     A.

   The State presents four counterarguments to Medley’s con-
tention.6 First, the State argues that whether “designed to be
used as a weapon” is an element of the offense is an interpre-
  5
    The dissent contends that the trial judge’s instruction that “[a] flare gun
is a firearm” was an interpretation of state law. For the reasons described
above, we disagree. There is no dispute that we are bound by a state trial
court’s interpretation of a state law, whether delivered as part of a jury
instruction or anywhere else. Where we differ with the dissent is that we
do not think that the trial court’s jury instruction, or the court’s in limine
ruling on the issue, can plausibly be construed as an interpretation of state
law. The dissent argues that the Supreme Court has held that jury instruc-
tions are interpretations of state law which are binding on federal courts.
See dissent Op. at 14391 citing City of Houston v. Hill, 482 U.S. 451, 470
(1987) (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). The prece-
dents cited by the dissent, however, stand for the proposition that jury
instructions may, but do not necessarily, constitute an interpretation of
state law. Courts sometimes interpret state law in the course of giving the
jury an instruction, but the trial judge did not do so here.
   It is true, as the dissent points out, that Winship does not speak about
“sub-elements,” a term we use to help clarify our reasoning. However,
Winship speaks clearly about “fact[s] necessary” to prove an offense.
Whether the flare gun used by Medley was “designed to be used as a
weapon” (whether that means designed by a manufacturer or designed by
the defendant) is a fact question. It therefore falls squarely within Win-
ship’s provision that “every fact necessary to constitute the crime with
which he is charged” must be proved to the jury beyond a reasonable
doubt. Winship, 397 U.S. at 364; see also United States v. Booker, 543
U.S. 220, 230 (2005) (quoting Winship). The trial court’s jury instruction
that a flare gun is a firearm was contrary to this clearly established law.
   6
     The State’s fourth argument, made in passing in its brief, is that the
term “firearm” “includes” but “does not require that the item must have
been designed as a weapon.” The State cites section 12001(a)(1) which
defines “pistol” and “revolver” as “apply[ing] to and includ[ing] any
device designed to be used as a weapon.” But the relevant section for
Medley’s offense is 12001(b), not 12001(a)(1), and the State has not sug-
gested that a flare gun qualifies as a pistol or revolver.
                      MEDLEY v. RUNNELS                    14379
tation of state law, and therefore a federal court sitting in
habeas may not second-guess the determination that it is not
an element of the offense.

   [7] It is true that the elements of a state crime are deter-
mined by state law, and state legislatures have broad discre-
tion to define the elements of a crime. See Patterson v. New
York, 432 U.S. 197, 208-09 (1977). Nevertheless, once a
state’s criminal laws are written, a defendant has the due pro-
cess right to insist that the state prove beyond a reasonable
doubt every element of the offense charged. See Sandstrom,
442 U.S. at 520-21.

   [8] The lack of precedent on the meaning of “designed to
be used as a weapon” undermines the State’s assertion that the
trial court was applying state law. In Sandstrom there was
clear precedent from the state supreme court that mens rea
was an element of the offense there in issue—a fact which
somewhat differentiates Sandstrom from the instant case. Id.
at 520 n.10 (citing State v. McKenzie, 581 P.2d 1205, 1232
(Mont. 1978)). Here there is no precedent from any California
court concerning whether “designed to be used as a weapon”
is a sub-element of the offense. This lack of state precedent
or statute clarifying “designed to be used as a weapon”
defeats the State’s argument. If the California Supreme Court
had held that, as a matter of law, a flare gun is a firearm under
the statute, or that a flare gun, as a matter of law, is designed
to be used as a weapon, then the trial court could plausibly be
said to have been applying state law. However, there is no
such precedent, and at oral argument the State acknowledged
that the trial court never explicitly ruled on whether “designed
to be used as a weapon” is an element of the offense—
although the court implicitly treated it as not being an ele-
ment. To ignore the “designed to be used as a weapon” sub-
element, or sub silentio to treat it as a non-element, might be
acceptable when there is clearly established precedent or
when the clear language of the statute supports the court’s
14380                     MEDLEY v. RUNNELS
actions, but a trial court does not interpret state law by ignor-
ing an element of the offense.

                                    B.

   [9] The State’s second argument is that even if the trial
court’s ruling was not just an issue of state law and a federal
court sitting in habeas may review the issue, the trial court’s
instruction was proper because the definition of “firearm” is
purely a legal issue and not a question of fact. The State relies
on People v. Runnion, 30 Cal. App. 4th 852, 857 n.3 (Cal. Ct.
App. 1994), which reasoned that “[a] ‘handgun’ fits within
the legal definition of ‘firearm.’ ” In Runnion, the defendant
used a semi-automatic pistol in an armed robbery and argued
that for the firearm enhancement to apply the prosecution had
to present evidence that the handgun was functional — but the
defense did not deny that it was a handgun. Id. at 855. The
trial court decided that the statute did not require the handgun
to be operational and that the statutory definition of firearm
included a handgun. Id. at 857 n.3. Moreover, the Court of
Appeal, in upholding the trial court’s jury instruction,
explained that “[w]hen, as here, the gun appears to be a tradi-
tional firearm, there is no need for the court to instruct the
jury more expansively.” Id. at 858. Thus, Runnion, while
affirming that the trial judge may instruct the jury that a tradi-
tional handgun is a firearm, suggests that the issue must go to
the jury when the object in question is not a traditional fire-
arm, or when the defense raises a legitimate question as to
whether the device meets the factual predicates for a “fire-
arm.” Accordingly, we do not read Runnion as supporting the
State’s argument that whether “a flare gun is a firearm” is a
pure legal issue rather than a question of fact.7
   7
     There is some question whether Runnion is compatible with more
recent United States Supreme Court precedents that have strengthened the
jury’s role in deciding mixed questions of law and fact. See Gaudin, 515
U.S. at 518 (holding that materiality in a perjury prosecution was a matter
for the jury). We need not decide whether Runnion remains good law
because the instant case is easily distinguishable from Runnion — a flare
gun is not a traditional firearm and whether the object in question met the
factual predicates for “firearm” was not, and could not reasonably have
been, challenged in Runnion.
                         MEDLEY v. RUNNELS                        14381
   The State also cites Stanton v. Benzler, 146 F.3d 726 (9th
Cir. 1998), in which we held that a trial court’s instruction to
the jury that arsenic trioxide is a poison did not violate Stan-
ton’s right to due process. In Stanton, however, we explained
that “[t]he California Court of Appeal, in affirming Stanton’s
conviction, held that arsenic trioxide is a poison under various
other California statutes and thus was not a factual question
for the jury to decide.” Id. at 728. There is no question that
the state legislature could define a flare gun as a firearm. Had
flare guns been defined elsewhere in the statutes as firearms
for purposes of Penal Code section 12022.53(c), then Stan-
ton’s reasoning would apply. Stanton, however, provides no
support for the State in the instant case because there is no
statute defining a flare gun as a firearm for purposes of Med-
ley’s crime—nor, as we previously noted, is there any prece-
dent to that effect. Accordingly, there is no basis on which the
trial court could have defined a flare gun to be a firearm as
a matter of law.

                                   C.

   The State’s third argument is that even if the phrase “de-
signed to be used as a weapon” is a sub-element of the
offense, this language could reasonably be interpreted to
mean “intended to be used as a weapon by the criminal.” The
State acknowledges that even under this interpretation, there
would be a question of fact which was never presented to the
jury. It contends, however, that not presenting this question to
the jury was harmless error because there was uncontradicted
testimony that Medley used the flare gun to shoot at his vic-
tim. Thus, the jury would be compelled to conclude that Med-
ley intended to use the flare gun as a weapon.

  One problem with the State’s argument is that the trial
court never interpreted “designed to be used as a weapon.”8
  8
   We need not decide the meaning of the phrase “designed to be used as
a weapon,” and we leave it to California courts to address this state law
14382                     MEDLEY v. RUNNELS
Rather, the trial court instructed the jury that as a matter of
law a flare gun was a firearm. In doing so, the court concen-
trated on how a flare gun “works” and offered no comment
on the sub-element of whether it was “designed to be used as
a weapon.” Accordingly, Medley had no notice at trial of the
interpretation now urged by the State, and we do not consider
the merits of it here.

   [10] The fact that Medley was not on notice of this inter-
pretation undermines the State’s argument for harmless error.
The test for harmless error on habeas review is “whether the
error had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)). Had the trial court actually ruled that
“designed to be used as a weapon” meant “intended to be
used as a weapon,” the defense would have been able to offer
an alternative interpretation. The interpretation now offered
by the State is questionable, and had Medley been afforded
the opportunity to challenge this interpretation there is a rea-
sonable likelihood that he might have obtained a different jury
instruction, and he might have been acquitted on the charge
of firearm use. We cannot conclude that the jury would have
convicted Medley of use of a “firearm” had the court consid-
ered the interpretation of the statute which the State urges on
appeal, rather than simply ignoring this sub-element — as
actually happened. Therefore, the trial court’s jury instruction
denied Medley due process, and the error was not harmless.

                                    VI.

  [11] Because “designed to be used as a weapon” is an ele-
ment of the offense and an issue of fact, the trial court’s direc-

question in the first instance. At oral argument the State requested that we
certify this question to the California Supreme Court. We decline to do so
because, whatever the meaning of the phrase at issue, in this case a factual
question exists which must be proved to the jury beyond a reasonable
doubt. Accordingly, we address the State’s contention only to the extent
necessary to explain that not presenting the issue to the jury was not harm-
less error.
                      MEDLEY v. RUNNELS                    14383
tion to the jury that a flare gun is a firearm was constitutional
error. This instruction took a critical issue of fact away from
the jury in violation of clearly established constitutional law.
Gaudin, 515 U.S. at 518; Winship, 397 U.S. at 364. Accord-
ingly, Medley’s enhancement for violating sec-
tion 12022.53(c) must be vacated. The district court’s
judgment is affirmed in part and reversed in part. We remand
with instructions to issue a conditional writ of habeas corpus
directing the State either to resentence Medley without apply-
ing the firearm enhancement or to retry the section
12022.53(c) charge within a reasonable time as set by the dis-
trict court.

 AFFIRMED in part; REVERSED in part; and
REMANDED WITH DIRECTIONS.



IKUTA, Circuit Judge, concurring in part and dissenting in
part:

   The majority errs doubly in its analysis of Medley’s due
process claim: it applies AEDPA deference incorrectly where
AEDPA doesn’t apply at all. Under 28 U.S.C. § 2254(d),
AEDPA’s deferential standard of review operates only “with
respect to any claim that was adjudicated on the merits in
State court proceedings.” Because Medley’s due process
claim was not adjudicated on the merits in state court, it can-
not be considered under AEDPA. The majority, wrongly
holding that AEDPA does apply, errs again by applying it
without the deference that AEDPA and Supreme Court prece-
dent demand. I therefore dissent.

                                I

  The state trial court interpreted “firearm” in § 12022.53(c)
of the California Penal Code to include “flare gun” and so
14384                      MEDLEY v. RUNNELS
instructed the jury.1 Although the trial court raised and dis-
cussed the issue of whether a flare gun qualified as a firearm
under California law during pretrial proceedings, Medley did
not raise a constitutional challenge to the instruction and the
trial court did not discuss the instruction’s constitutional
implications. This pre-trial discussion is not “the state court’s
determination of the federal issue[ ],” Himes v. Thompson,
336 F.3d 848, 852 (9th Cir. 2003), but merely a state law
determination which is irrelevant on federal habeas review.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Nor did
Medley raise the constitutionality of the instruction on direct
appeal; his first mention of the federal constitutional dimen-
sion of his jury instruction issue was in his state habeas peti-
tion to the state appellate court. The California Court of
Appeal and the California Supreme Court summarily denied
Medley’s petitions for habeas relief as procedurally barred.
As discussed below, the majority errs by failing to recognize
the procedural posture of this case and by attempting to apply
AEDPA when there is no state adjudication on the merits to
which AEDPA deference is owed.

                                     A

   The majority’s first mistake is procedural. As a threshold
matter, the majority does not consider whether Medley’s due
process claim has been exhausted. Ordinarily, a petitioner
cannot be granted federal habeas relief unless “the applicant
has exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). “A petitioner has satisfied
the exhaustion requirement if: (1) he has ‘fairly presented’ his
federal claim to the highest state court with jurisdiction to
consider it, or (2) he demonstrates that no state remedy
  1
    California Penal Code § 12022.53(c) states: “Notwithstanding any
other provision of law, any person who, in the commission of a [specified]
felony . . . personally and intentionally discharges a firearm, shall be pun-
ished by an additional and consecutive term of imprisonment in the state
prison for 20 years.”
                      MEDLEY v. RUNNELS                   14385
remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th
Cir. 1996) (quotations and citations omitted). As stated above,
Medley did not raise his constitutional claims until his state
habeas petitions. The California Supreme Court denied Med-
ley’s habeas petition citing In re Swain (1949) 34 Cal. 2d 300,
304 and People v. Duvall (1995) 9 Cal. 4th 464, 474. These
cases discuss procedural requirements for properly pleading a
claim for state habeas relief. We have recognized that a sum-
mary denial by the California Supreme Court citing Swain is
a denial based on a procedural defect and further that such a
denial may mean “the available state remedies have not been
exhausted as the California Supreme Court has not been given
the required fair opportunity to correct the constitutional vio-
lation.” Harris v. Sup. Ct., 500 F.2d 1124, 1128 (9th Cir.
1974). Although the State did not argue that Medley had
failed to exhaust this claim, “[a] State shall not be deemed to
have waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through coun-
sel, expressly waives the requirement.” 28 U.S.C.
§ 2254(b)(3). Medley does not argue that any of the excep-
tions to the exhaustion requirement are applicable. See 28
U.S.C. § 2254(b)(1)(B). Therefore, if Medley would still be
allowed to raise his due process claim in California courts, we
cannot reach it here.

   On the other hand, if Medley “can no longer raise [his
claim] through any state procedure, state remedies are no lon-
ger available, and are thus exhausted” by virtue of a proce-
dural bar. Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir.
2002). If raised by the State, such a procedural bar provides
an independent and adequate state ground for denying the
claim in federal court, absent a showing of cause and preju-
dice or a fundamental miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 497
U.S. 478, 488 (1986).

  Here the state appears to have waived any claim of proce-
dural bar by failing to raise it on appeal. See Vang v. Nevada,
14386                  MEDLEY v. RUNNELS
329 F.3d 1069, 1073 (9th Cir. 2003). Under these circum-
stances, we must consider whether to raise the procedural bar
sua sponte. See Windham v. Merkle, 163 F.3d 1092, 1101 (9th
Cir. 1998). In Windham, we applied the procedural bar even
though the state failed to raise it. Based on principles of feder-
alism and comity, we “decline[d] to permit a defendant, repre-
sented by counsel at trial, to fail to raise an issue before the
trial judge, await the outcome of the jury’s deliberations, and
then seek federal habeas corpus relief, after the state’s highest
court has declined to reach the merits of his federal constitu-
tional claim because it is procedurally barred by state law.”
Id. Nevertheless, because the petitioner in Windham did not
have an opportunity to argue that he met the criteria for over-
coming the state’s procedural bar, we remanded the matter to
the district court to give the petitioner “an opportunity to pre-
sent a cause and prejudice justification for his procedural
default.” Id.

   Here we too are faced with a represented defendant who
failed to raise his constitutional issue in a manner that would
have allowed the state court to address it on the merits.
Guided by Windham, we should remand this case to the dis-
trict court to consider arguments that there is cause for the
default and prejudice.

   The majority does not consider the implications of the pro-
cedural bar in this case. However, the majority’s implicit
decision not to raise the procedural bar sua sponte leaves the
majority only one procedural alternative. In those rare circum-
stances where the state has waived the procedural bar, and we
nevertheless decide to proceed to the merits, we have held
that de novo review is the applicable standard. See Chaker v.
Crogan, 428 F.3d 1215 (9th Cir. 2005). In Chaker, the peti-
tioner raised a constitutional objection to his criminal convic-
tion for the first time in his third state habeas petition. Id. at
1218. The petition was denied “and the order denying the
petition cited California cases concerning procedural default.”
Id. When Chaker later filed a federal habeas petition, the state
                           MEDLEY v. RUNNELS                         14387
did not raise the issue of procedural default, either in the dis-
trict court or on appeal. Id. at 1220. We therefore deemed it
waived. Id. After declining to dismiss Chaker’s petition sua
sponte, we held that we were “not precluded from ruling on
the merits of Chaker’s claim due to his procedural default.”
However, because there was no state court decision on
Chaker’s constitutional claim, there was thus “no state deci-
sion to review to determine whether the decision was ‘con-
trary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court
of the United States.’ ” We concluded that “[i]n such a cir-
cumstance, we review the district court’s decision de novo
without the deference usually accorded state courts under 28
U.S.C. § 2254(d)(1).” Id. at 1220-21.

   This reasoning is consistent with AEDPA, which precludes
us from granting a state habeas petition “with respect to any
claim that was adjudicated on the merits in State court pro-
ceedings” unless the state’s adjudication of the claim meets
certain criteria. 28 U.S.C. § 2254(d) (emphasis added). We
have held that “a state has ‘adjudicated’ a petitioner’s consti-
tutional claim ‘on the merits’ for purposes of § 2254(d) when
it has decided the petitioner’s right to post conviction relief on
the basis of the substance of the constitutional claim
advanced, rather than denying the claim on the basis of a pro-
cedural or other rule precluding state court review of the mer-
its.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
Where, as here, no state court considered Medley’s claim on
the merits, § 2254(d) is simply inapplicable.

   The procedural posture we face here is essentially identical
to that addressed in Chaker.2 Because the state courts never
  2
    The majority relies on Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.
2002), but that case addressed a slightly different issue. Pirtle held that
where a state court incorrectly concludes that a constitutional claim is
barred on state procedural grounds, federal review of the claim is de novo,
i.e., without regard to AEDPA deference. In this case, Medley’s constitu-
tional claim was not raised on direct appeal, and there is no basis for hold-
ing that the state court erred in determining that Medley’s claim was
procedurally barred.
14388                 MEDLEY v. RUNNELS
adjudicated Medley’s constitutional claim on the merits, but
rejected it on procedural grounds, the better course is to
decline to address Medley’s procedurally-barred claim. See
Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998).
However, if the majority insists on reaching the issue,
AEDPA is inapplicable, and our precedent requires de novo
review.

   But the majority does not take the course set forth either in
Windham or in Chaker. The majority mistakenly identifies the
state trial court’s resolution of a state law dispute over the
jury instruction as the last reasoned decision of Medley’s con-
stitutional claim. See Ylst v. Nunnemaker, 501 U.S. 797, 804-
06 (1991). Of course, Medley failed to raise his constitutional
issue to the state trial court, and so the court’s decision on
state law grounds did not adjudicate Medley’s constitutional
claim on the merits, or constitute “the last reasoned decision.”
Id. Although we look through to the last reasoned state court
decision to address the petitioner’s constitutional claim, Riggs
v. Fairman, 399 F.3d 1179, 1182 (9th Cir. 2005), we do not
“look through” to a state decision which does not address the
constitutional claim. Id. If the constitutional issue was not
raised to any state court that issued a reasoned decision, there
is no state court determination addressing the petitioner’s con-
stitutional claim, and there is no adjudication on the merits for
purposes of AEDPA.

   In sum, the majority has taken a procedural route at odds
with the facts, our case law, and AEDPA. The majority
applies AEDPA deference to a state trial court’s decision that
instructing the jury that a “flare gun” was a “fire arm” was not
an error of state law. Along the way, the majority brushes
aside the exhaustion and procedural bar issues that caution us
not to reach a constitutional claim never adjudicated on the
merits by a state court.

                               B

  The majority’s second mistake is more substantive: a mis-
application of AEDPA. Having erroneously concluded that
                         MEDLEY v. RUNNELS                         14389
the state trial court adjudicated Medley’s constitutional claim
on the merits, the majority compounds its error by failing to
defer to the state court’s assumed constitutional decision in
the manner required by § 2254(d). Under the majority’s
approach, we must read the state trial court as deciding the
constitutional issue without giving a reason for denying Med-
ley’s due process claim. Under these circumstances, we treat
the state court’s silence on the issue as rejecting his due pro-
cess claim. See Himes, 336 F.3d at 853; Delgado v. Lewis,
223 F.3d 976, 981-82 (9th Cir. 2000). Where the state court
does not supply a reasoned decision, we must “perform an
‘independent review of the record’ to ascertain whether the
state court decision was objectively unreasonable.” Himes,
336 F.3d at 853 (quoting Delgado, 223 F.3d at 981-82); see
also Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002).

   We have indicated that this is a two-step process: First, we
identify the clearly established Supreme Court precedent that
makes the state court determination erroneous. Second, we
determine whether the state court’s failure to apply this
Supreme Court precedent was not only erroneous, but objec-
tively unreasonable. See Delgado, 223 F.3d at 981; see also
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (holding that
under AEDPA, the state court’s application of clearly estab-
lished law must be objectively unreasonable, not merely
incorrect or erroneous).

   The majority errs in the first step because it has not identi-
fied clearly established Supreme Court precedent that makes
the state court determination erroneous. The majority con-
cludes that the state court could not give the jury an interpre-
tation of the term “firearm” in § 12022.53(c) but was required
by Supreme Court precedent to give jury instructions that
defined “firearm” by setting out the full language of § 12001(b).3
  3
   California Penal Code § 12001(b) states: “As used in this title, ‘fire-
arm’ means any device, designed to be used as a weapon, from which is
expelled through a barrel, a projectile by the force of any explosion or
other form of combustion.”
14390                  MEDLEY v. RUNNELS
Maj. op. at 14377. The majority points to Sandstrom v. Mon-
tana, 442 U.S. 510 (1979), as clearly establishing this princi-
ple. Maj. op. at 14379. But Sandstrom held that a jury
instruction deprives a defendant of his due process rights if it
creates a conclusive presumption that the defendant had a spe-
cific state of mind. See id. at 524 (1979). Sandstrom does not
clearly establish that a trial court’s interpretation of an ele-
ment of an offense violates the defendant’s due process rights.
See Musladin, 549 U.S. at ___, 127 S. Ct. 649, 654-55 (reject-
ing our grant of habeas relief based on extrapolation from
Supreme Court cases not directly on point).

   Nor does United States v. Gaudin, 515 U.S. 506 (1995),
constitute clearly established precedent that makes the state
court’s determination erroneous. In Gaudin, the defendant
was accused of making false statements to a federal agency
under 18 U.S.C. § 1001, a statute requiring the government to
prove the statements’ materiality. Id. at 508-09. The federal
judge told the jury that “ ‘[t]he issue of materiality . . . is not
submitted to you for your decision but rather is a matter for
the decision of the court. You are instructed that the state-
ments charged in the indictment are material statements.’ ” Id.
at 508. On direct appeal, the Supreme Court held that the dis-
trict court could not determine the element of “materiality” as
a matter of law because “[t]he Constitution gives a criminal
defendant the right to demand that a jury find him guilty of
all the elements of the crime with which he is charged.” Id.
at 511.

   Gaudin is not contrary to this case, because here the jury
did find Medley guilty of all the elements of § 12022.53(c),
including use of a firearm as defined by the state court.
Gaudin involved federal law, and therefore did not raise the
question whether a state court’s jury instructions interpreting
the elements of an offense as a matter of state law violate con-
stitutional principles. It is well established that federal courts
must accept a state court’s identification of the elements of a
state criminal offense. See Illinois v. Vitale, 447 U.S. 410, 416
                           MEDLEY v. RUNNELS                          14391
(1980) (“We accept, as we must, the Supreme Court of Illi-
nois’ identification of the elements of the offenses involved
here.”). Moreover, the Supreme Court has held that a trial
court’s instructions constitute an interpretation of state law
that is binding on the federal courts. See Robinson v. Califor-
nia, 370 U.S. 660, 666 (1962) (“The instructions of the trial
court, implicitly approved on appeal, amount[ ] to ‘a ruling on
a question of state law that is as binding on us as though the
precise words had been written’ into the statute. ‘We can only
take the statute as the state courts read it.’ ” (quoting Termin-
iello v. Chicago, 337 U.S. 1, 4 (1949))); see also City of
Houston v. Hill, 482 U.S. 451, 470 (1987). Read in light of
these precedents, there is no inconsistency with Gaudin,
because the state trial court’s instructions merely defined the
elements of the offense, which then went to the jury.4

   Indeed, a post-Gaudin case reached just this conclusion. In
Stanton v. Benzler, 146 F.3d 726 (9th Cir. 1998), we held that
no due process violation arose from a state trial court’s
instruction to the jury defining “poison” in a state criminal
statute as including “arsenic trioxide.” Id. at 727-28. We
stated: “This state-law determination—that arsenic trioxide is
a poison as a matter of law and is not an element of the
offense to be decided by the jury—is not open to challenge on
habeas review.” Id. at 728. As Stanton confirms, Gaudin did
  4
    The majority contends that the elements of the offense included the
“sub-elements” of California Penal Code § 12001(b). But this section does
not create new elements of the California Penal Code § 12022.53(c)
offense; rather, it provides the definition of one element of the offense,
“firearm,” as a matter of state law. Even if the trial judge erred in conclud-
ing that a flare gun met this definition, and therefore was a firearm as a
matter of state law, such a state law error cannot be the basis of habeas
relief. See Estelle, 502 U.S. at 67-68 (1991) (“[I]t is not the province of
a federal habeas court to reexamine state-court determinations on state-law
questions.”). Moreover, the majority’s new rule that the statutory defini-
tion of a term in a criminal offense statute constitutes “sub-elements” of
that offense cannot be found in Gaudin or any other clearly established
Supreme Court precedent.
14392                        MEDLEY v. RUNNELS
not clearly establish the principle that state trial courts may
not define key terms in jury instructions.5 Thus, the majority
has pointed to no established Supreme Court precedent that
makes the state court’s determination erroneous.

                                        C

   Because the majority is unable to identify any Supreme
Court precedent in clear contradiction to this case, then a for-
tiori, the majority cannot hold that the state court’s determina-
tion was objectively unreasonable. The state court could have
reasonably viewed the trial court’s jury instruction as an inter-
pretation of California Penal Code § 12022.53(c). Trial courts
often give juries interpretations of key words in criminal stat-
utes, and such interpretations may be affirmed on appeal and
become binding state-law precedent. See, e.g., People v.
Dimitrov, 39 Cal. Rptr. 2d 257, 260 (Cal. Ct. App. 1995)
(upholding trial court’s definition of “destructive device” as
including “pipe bomb”); People v. Runnion, 36 Cal. Rptr. 2d
203, 206 n.3 (Cal. Ct. App. 1994) (upholding trial court’s def-
inition of “firearm” as including “handgun”).6 Reading the
trial court’s interpretation of state law as if “ ‘the precise
words’ ” of the jury instruction had been written into
§ 12022.53(c), Robinson, 370 U.S. at 666 (quoting Termin-
iello, 337 U.S. at 4), this statute required the jury to determine
  5
     It is true, as the majority points out, that in Stanton the trial court relied
on unrelated state statutes defining “poison” as including arsenic trioxide.
Maj. op. at 14381. But it’s not clear why this makes a difference. Under
the logic of the majority’s opinion, the Stanton trial court infringed the
defendant’s due process rights by instructing the jury that an element of
the offense (poison) was established by the evidence as a matter of law.
   6
     The majority distinguishes Runnion essentially on the ground that
“handgun” in Runnion meets the statutory definition of “firearm” better
than “flare gun” meets that definition. Maj. op. at 14380. But again, these
distinctions are irrelevant to the constitutional issue. If a defendant’s due
process rights are violated by instructions interpreting a key term, the
comparative accuracy of the trial courts’ legal interpretation goes only to
whether the jury instruction error was harmless.
                          MEDLEY v. RUNNELS                         14393
that the defendant had personally and intentionally discharged
a flare gun. The majority does not contend that the statute, so
read, violates the Constitution, and there is no clearly estab-
lished Supreme Court precedent precluding a state from inter-
preting the statute in such a way, i.e., defining “firearm” to
include a flare gun.7 Relying on this interpretation, the state
court could reasonably conclude that the trial court’s instruc-
tion did not infringe on Medley’s due process rights.
Although the majority did not expressly reach the second step
of AEDPA review, there is no basis for ruling that such a con-
clusion by the state court would be objectively unreasonable.

                                    II

   All this is not to say that the majority’s view is unreason-
able. A reasonable court could interpret the trial court’s jury
instruction as, in effect, taking an element of the offense away
from the jury and determining it as a matter of law. But the
state court’s interpretation of the jury instructions, as
explained above, was also reasonable, and under AEDPA we
must defer to the state court’s determination unless it is objec-
tively unreasonable. In light of the lack of clear guidance
from the Supreme Court, deference is required here. See, e.g.,
Musladin, 549 U.S. at ___, 127 S. Ct. at 654 (holding that
where there is a “lack of holdings” from the Supreme Court
on an issue, “it cannot be said that the state court ‘unrea-
sonabl[y] appli[ed] clearly established Federal law.’ ” (quot-
ing 28 U.S.C. § 2254(d)(1)).

  If we were to review Medley’s claim de novo, as our prece-
dent dictates, then the majority’s application of Sandstrom
and Gaudin would be on firmer ground. Since, however, the
question is whether the state has been objectively unreason-
  7
    Medley did not raise the question of whether the state court’s jury
instruction constituted an error under Bouie v. City of Columbia, 378 U.S.
347 (1964), in either state or federal court, and therefore such a claim is
both procedurally defaulted and waived.
14394                 MEDLEY v. RUNNELS
able, I must dissent from the majority’s decision on the jury
instruction issue. I concur, however, in the majority’s holding
regarding Medley’s claim of ineffective assistance of counsel.
