Medley v. Runnels

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.