Lead Opinion
Opinion by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge IKUTA.
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 determination of an element of the offense; and (3) he received ineffective 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.
I.
In 1998, Medley roomed with Michael Gonzales in Riverside, 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 ran and Medley pursued. Medley tried again to shoot Gonzales 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, eventually 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 enhancement 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 firearm. 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 projectile by the force of any explosion, or other form of combustion,” 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 someone 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.
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 second 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 ha-
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 “firearm” was a question of state law, and therefore it was unreviewable on a federal habeas petition. After a three-judge panel of this court affirmed in a memorandum disposition, we granted rehearing en banc.
II.
Medley first claims that his attorney provided ineffective assistance by denying him the right to testify. Under the Anti-terrorism 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 “contrary 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 decision that was based on an unreasonable determination of the facts....” 28 U.S.C. § 2254(d).
Strickland v. Washington,
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 recommended 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. Moreover, 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 Medley. 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, Medley’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 Medley wished to give would not have affected the outcome of the trial. Accordingly, Medley has failed to prove that the alleged IAC
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).
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,
The Supreme Court has also held that “a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey,
IV.
Before addressing the merits of Medley’s flare gun argument, 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,
A.
The State suggests that there was no decision at all in the state courts with respect to the flare gun issue, and there
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: “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 reasoned decision under Ylst. Therefore, we review the ruling of the trial court.
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,
V.
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 com
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 necessary to constitute the crime of deliberate homicide. Indeed, it was the lone element of the offense at issue in Sand-strom’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 controverting, and introduced evidence solely on those 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,
The State concedes that it must prove as an element of the offense that the defendant discharged a “firearm.” See People v. Jacobs,
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 determination as to whether the object used by Medley was designed to be used as a weapon and expels a projectile through a barrel by the force of an explosion. The State’s arguments to the contrary are not persuasive.
The State presents four counterarguments to Medley’s contention.
It is true that the elements of a state crime are determined by state law, and state legislatures have broad discretion to define the elements of a crime. See Patterson v. New York,
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 Sand-strom 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,
B.
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,
The State also cites Stanton v. Benzler,
The State’s third argument is that even if the phrase “designed 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 victim. Thus, the jury would be compelled to conclude that Medley 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.”
The fact that Medley was not on notice of this interpretation 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,
VI.
Because “designed to be used as a weapon” is an element of the offense and an issue of fact, the trial court’s direction 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,
AFFIRMED in part; REVERSED in part; and REMANDED WITH DIRECTIONS.
Notes
. 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.
. Medley v. Runnels,
. 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,
. 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.
. 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 li-
It is true, as the dissent points out, that Win-ship 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 Winship'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,
. 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 suggested that a flare gun qualifies as a pistol or revolver.
. 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,
. 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 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 harmless error.
Concurrence Opinion
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 cannot be considered under AED-PA. The majority, wrongly holding that AEDPA does apply, errs again by applying it without the deference that AEDPA and Supreme Court precedent 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 instructed the jury.
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 remains available.” Johnson v. Zenon,
On the other hand, if Medley “can no longer raise[his claim] through any state procedure, state remedies are no longer available, and are thus exhausted” by virtue of a procedural bar. Franklin v. Johnson,
Here the state appears to have waived any claim of procedural bar by failing to raise it on appeal. See Vang v. Nevada,
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 district court to consider arguments that there is cause for the default and prejudice.
The majority does not consider the implications of the procedural 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 circumstances where the state has waived the procedural bar, and we nevertheless decide to proceed to the merits, we have held
This reasoning is consistent with AED-PA, which precludes us from granting a state habeas petition “with respect to any claim that was adjudicated on the merits in State court proceedings” 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 constitutional claim ‘on the merits’ for purposes of § 2254(d) when it has decided the petitioners 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 procedural or other rule precluding state court review of the merits.” Lambert v. Blodgett,
The procedural posture we face here is essentially identical to that addressed in Choker.
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 constitutional claim. See Ylst v. Nunnemaker,
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 misapplication of AEDPA. Having erroneously concluded that 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 Medley’s due process claim. Under these circumstances, we treat the state court’s silence on the issue as rejecting his due process claim. See Himes,
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 objectively unreasonable. See Delgado,
The majority errs in the first step because it has not identified clearly established Supreme Court precedent that makes the state court determination erroneous. The majority concludes that the state court could not give the jury an interpretation 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).
Nor does United States v. Gaudin,
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 constitutional 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,
Indeed, a post-Gaudin case reached just this conclusion. In Stanton v. Benzler, 146
C
Because the majority is unable to identify any Supreme Court precedent in clear contradiction to this case, then a fortiori, the majority cannot hold that the state court’s determination was objectively unreasonable. The state court could have reasonably viewed the trial court’s jury instruction as an interpretation of California Penal Code § 12022.53(c). Trial courts often give juries interpretations of key words in criminal statutes, and such interpretations may be affirmed on appeal and become binding state-law precedent. See, e.g., People v. Dimitrov,
II
All this is not to say that the majority’s view is unreasonable. A reasonable court
If we were to review Medley’s claim de novo, as our precedent 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 unreasonable, 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.
. 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 punished by an additional and consecutive term of imprisonment in the state prison for 20 years.”
. The majority relies on Pirtle v. Morgan,
. California Penal Code § 12001(b) states: “As used in this title, 'firearm' 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.”
. 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 concluding 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,
. It is true, as the majority points out, that in Stanton the trial court relied on unrelated state statutes defining “poison” ás including arsenic trioxide. Maj. op. at 866. 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.
. The majority distinguishes Runnion essentially on the ground that “handgun” in Runn-ion meets the statutory definition of “firearm” better than "flare gun” meets that definition. Maj. op. at 866. 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 did not raise the question of whether the state court’s jury instruction constituted an error under Bouie v. City of Columbia,