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.1 Although the trial court raised and discussed 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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Nor did Medley raise the constitutionality of the instruction on direct appeal; his first mention of the federal constitutional dimension of his jury instruction issue was in his state habeas petition 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 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 *869denied Medley’s habeas petition citing In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793 and People v. Duvall (1995) 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252. These eases discuss procedural requirements for properly pleading a claim for state habeas relief. We have recognized that a summary 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 violation.” 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 counsel, expressly waives the requirement.” 28 U.S.C. § 2254(b)(3). Medley does not argue that any of the exceptions 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 longer available, and are thus exhausted” by virtue of a procedural 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 prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Here the state appears to have waived any claim of procedural bar by failing to raise it on appeal. See Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir.2003). Under these circumstances, 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 federalism and comity, we “decline[d] to permit a defendant, represented 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 constitutional claim because it is proeedurally barred by state law.” Id. Nevertheless, because the petitioner in Windham did not have an opportunity to argue that he met the criteria for overcoming the state’s procedural bar, we remanded the matter to the district court to give the petitioner “an opportunity to present 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 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 *870that de novo review is the applicable standard. See Chaker v. Crogan, 428 F.3d 1215 (9th Cir.2005). In Chaker, the petitioner raised a constitutional objection to his criminal conviction 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 did not raise the issue of procedural default, either in the district 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 decision to review to determine whether the decision was’ contrary 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 circumstance, 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 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, 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 Choker.2 Because the state courts never 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 constitutional claim. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (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 consti*871tutional 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 constitutional 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 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, 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 objectively unreasonable. See Delgado, 223 F.3d at 981; see also Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (holding that under AEDPA, the state court’s application of clearly established law must be objectively unreasonable, not merely incorrect or erroneous).
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).3 Maj. op. at 864. The majority points to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), as clearly establishing this principle. Maj. op. at 865. 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 specific state of mind. See id. at 524, 99 S.Ct. 2450 (1979). Sandstrom does not clearly *872establish that a trial court’s interpretation of an element of an offense violates the defendant’s due process rights. See Musladin, 549 U.S. at -, 127 S.Ct. 649, 654-55, 166 L.Ed.2d 482 (rejecting 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, 115 S.Ct. 2310, 132 L.Ed.2d 444 (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, 115 S.Ct. 2310. 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 statements charged in the indictment are material statements.’ ” Id. at 508, 115 S.Ct. 2310. On direct appeal, the Supreme Court held that the district 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, 115 S.Ct. 2310.
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, 447 U.S. 410, 416, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (“We accept, as we must, the Supreme Court of Illinois’ 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. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 8 L.Ed.2d 758 (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 Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949))); see also City of Houston v. Hill, 482 U.S. 451, 470, 107 S.Ct. 2502, 96 L.Ed.2d 398 (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 *873F.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 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 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, 33 Cal.App.4th 18, 39 Cal.Rptr.2d 257, 260 (1995) (upholding trial court’s definition of “destructive device” as including “pipe bomb”); People v. Runnion, 30 Cal.App.4th 852, 36 Cal.Rptr.2d 203, 206 n. 3 (1994) (upholding trial court’s definition 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, 82 S.Ct. 1417 (quoting Terminiello, 337 U.S. at 4, 69 S.Ct. 894), this statute required the jury to determine 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 established Supreme Court precedent precluding a state from interpreting 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 instruction 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 conclusion by the state court would be objectively unreasonable.
II
All this is not to say that the majority’s view is unreasonable. A reasonable court *874could 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 objectively 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 ‘unreasonably] appli[ed] clearly established Federal law.’ ” (quoting 28 U.S.C. § 2254(d)(1))).
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, 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 constitutional claim was not raised on direct appeal, and there is no basis for holding that the state court erred in determining that Medley’s claim was procedurally barred.
. 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, 502 U.S. at 67-68, 112 S.Ct. 475 (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 definition 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.
. 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, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), in either state or federal court, and therefore such a claim is both procedurally defaulted and waived.