232 F.3d 1236 (9th Cir. 2000)
LOI VAN NGUYEN, Petitioner-Appellant,v.GARY LINDSEY, ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondent-Appellee.
No. 98-56880
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted May 1, 2000Filed November 30, 2000

Frederick L. McBride, Santa Ana, California, for the petitioner-appellant.
John T. Swan, Assistant United States Attorney, San Diego, California, for the respondent-appellee.
Appeal from the United States District Court for the Central District of California Linda H. McLaughlin, District Judge, Presiding. D.C. No. CV-98-00168-LHM-EE
Before: James R. Browning, John T. Noonan, and Barry G. Silverman, Circuit Judges.
SILVERMAN, Circuit Judge:


1
An innocent bystander was killed in the crossfire of a shootout between two rival gangs. Two of the combatants were charged with murder and tried separately. At the trial of the first defendant (Phung), the prosecutor presented evidence that Phung had fired the first shot. At the trial of the second defendant (Nguyen, the petitioner here) the prosecutor introduced Nguyen's own statement to the police that someone in his car had fired first. On state habeas review, an evidentiary hearing was conducted in state court. The California Court of Appeal found as matter of fact that the prosecutor's underlying theory was the same in both trials -that in a case of voluntary mutual combat, it did not matter who fired the first shot. It also found that the prosecution's arguments were consistent with the evidence actually adduced at each trial, and that the prosecution had not falsified evidence or engaged in bad faith. On this record, Nguyen has not shown that the state court's rejection of his due process claim was an unreasonable application of clearly established federal law. We affirm.

I. Facts

2
We take the following recitation of the facts from the Opinion of the California Court of Appeal upholding the denial of Nguyen's state petition for writ of habeas corpus:


3
This case involves a gun battle between rival fac tions of a street gang which resulted in the death of  an innocent bystander. Doi Phung, a Nip Family  Gang (NFG) member, assaulted Tam . . . another  NFG member. To save face, Tam needed to retaliate.  [Nguyen] and several other NFG members aligned  with Tam, including Phat Cao, nicknamed Cholo,  went looking for Phung. They contacted Phung by  telephone and arranged a meeting at a church to dis cuss Tam's beating. In fact, Nguyen's group  intended to give Phung a beating.


4
The group, which included eight NFG members  armed with at least two guns, proceeded to the  church in a three-car caravan. Before reaching the  church, they saw Phung standing on the sidewalk in  front of it apparently armed. They stopped at a convenience store across the street. The caravan left the  convenience store parking lot and, while one car proceeded to the church, the other two vehicles made U-turns and engaged in a gun battle with Phung.  Lazaro Acosta, Jr., who was sitting in a car parked  at the convenience store was killed when a bullet  from a .380 caliber handgun passed through the rear  of the vehicle and struck him.


5
The police found four .380 caliber shell casings on  the sidewalk in front of the church rectory and five  9-millimeter casings in the street. With the use of a  laser beam, the police traced the trajectory of the  bullet which killed Acosta to where Phung had been  standing. Later the same evening, Phung was  arrested and the police discovered the murder  weapon in the backseat of a car in which he had been  a passenger. The police seized the 9-millimeter  handgun during the investigation of another, unrelated shooting incident involving NFG members  later the same evening.


6
After his arrest, [Nguyen] gave a statement to the  police. He admitted driving one of the cars involved  in the gun battle and said Cholo fired his weapon  after Phung displayed a gun. [Nguyen] admitted one  of the passengers in his car brought a gun and  another passenger fired during the shooting.


7
Nguyen was convicted of first degree murder and  participation in a criminal street gang pursuant to  Cal. Penal Code SS 187(a) and 186.22(a). The jury  also found that Nguyen was vicariously armed with  a firearm during the commission of the murder and  had committed the offense in association with a  criminal street gang. See Cal. Penal Code  SS 12022(a)(1) 186.22(b)(1).


8
Both Phung and Nguyen were charged with Acosta's murder but each was tried separately. At Phung's trial, the prosecutor's theory was that each rival group went to the church intending to ambush the other and engage in mutual combat. The prosecutor also argued to the jury that Phung could not claim self defense because he sought the quarrel and had agreed to engage in the fight. However, she also argued that Phung had fired the first shot, an argument that had a basis in the evidence adduced at the trial; the court had received in evidence, by stipulation of Phung's counsel, the statements of two members of Nguyen's gang to the effect that Phung had fired first.


9
At Nguyen's trial, the prosecutor introduced into evidence Nguyen's own statement to the police in which he said that Cholo, a passenger in the car Nguyen was driving, fired the first shot when they arrived at the church in search of Phung.


10
The prosecutor's overriding theory was that Nguyen and his fellow gang members were all guilty of murder under the "provocative act doctrine," regardless of who fired the first shot, because they had engaged in mutual combat. However, in closing argument, she did make reference to Nguyen's statement that Cholo had fired first.


11
Nguyen was convicted of first degree murder and participation in a criminal street gang. See Cal. Penal Code SS 187(a) and 186.22(a). The jury also found that Nguyen was vicariously armed with a firearm during the commission of the murder and had committed the offense in association with a criminal street gang. See Id. SS 12022(a)(1) and 186.22(b)(1). He was sentenced to 25 years to life for murder plus three additional years.


12
Nguyen filed a state habeas petition and argued that the prosecutor's use of the inconsistent evidence of which gang fired the first shot violated his due process rights. At an evidentiary hearing on the petition conducted by the state trial judge, the prosecutor testified that the two statements that Doi Phung fired first were admitted at Phung's trial by stipulation, at defense counsel's request, and that the statements "were not available" for use at Nguyen's trial.1  The trial court denied the petition citing People v. Turner, 8 Cal. 4th 137, 193 (1994) and People v. Farmer, 47 Cal.3d 888, 923 (1989) (recognizing that inconsistent theories in different cases do not violate a defendant's due process rights if based on the record and advanced in good faith).


13
The California Court of Appeal affirmed, holding that the prosecution presented the same fundamental theory of the case at each trial--specifically, that in a mutual combat gun battle when a shot kills a third person, the initiator and those who voluntarily took part in the battle are responsible for the crime.2 The California Supreme Court denied review without comment.


14
Nguyen filed a petition for writ of habeas corpus in federal district court and argued that the prosecutor's inconsistent the-ories of the case denied him the defense of self defense in violation of due process. The Magistrate Judge recommended that the District Judge deny the petition because no clearly established federal law, lower court or Supreme Court, holds that it is a denial of a defendant's right to due process for a prosecutor to make inconsistent arguments in trials against different defendants. The District Judge adopted the recommendation and denied habeas relief. Nguyen appealed.

II. Discussion
A. Jurisdiction

15
Because the habeas petition was filed on February 24, 1998, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. Lindh v. Murphy, 521 U.S. 320, 326 (1997). We have jurisdiction pursuant to 28 U.S.C.S 2253.

B. Standard of Review

16
We review the district court's denial of the habeas petition de novo. Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998).


17
Under AEDPA, we cannot grant habeas relief unless the underlying state decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to it in the state court proceeding." 28 U.S.C. S 2254(d). An "unreasonable application of clearly established law" exists if the state court identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the case. Williams v. Taylor, 120 S.Ct. 1495, 1518-21 (2000); Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000), cert. denied, 69 U.S.L.W. 3156 (U.S. Oct. 16, 2000) (No. 00-255). We apply the clear error standard to determine whether an unreasonable application of clearly established law exists under AEDPA and Williams:


18
[W]e must reverse a state court's decision as involving an "unreasonable application" of clearly established law when our independent review of the legal  question does not merely allow us ultimately to conclude that the petitioner has the better of two reason able legal arguments, but rather leaves us with a "firm conviction" that one answer, the one rejected  by the court, was correct and the other, the application of the federal law that the court adopted, was  erroneous--in other words that clear error occurred.


19
Van Tran, 212 F.3d at 1153-54. "[W]e must first consider whether the state court erred; only after we have made that determination may we then consider whether any error involved an unreasonable application of controlling law within the meaning of S 2254(d)." Id. at 1155.

C. Prosecutorial Misconduct

20
The Supreme Court has held that prosecutors violate a defendant's right to due process if they knowingly use false evidence. Mooney v. Holohan, 294 U.S. 103, 112-13 (1935); Berger v. United States, 295 U.S. 78, 84-89 (1935). It follows that a prosecutor's pursuit of fundamentally inconsistent theories in separate trials against separate defendants charged with the same murder can violate due process if the prosecutor knowingly uses false evidence or acts in bad faith.


21
Petitioner makes no contention in this case that the evidence introduced against him was falsified or that she acted in bad faith. The California Court of Appeal found as a matter of fact that the prosecution presented the same underlying theory of the case at each trial -when a shot kills a third person in a voluntary gun battle, the initiator and those who voluntarily took part in the mutual combat are responsible for the crime. As to who fired the first shot, it is true that the prosecutor made different arguments at each trial, but it is also true that these arguments were consistent with the evidence actually adduced at each trial.


22
In Nguyen's trial, the prosecutor introduced into evidence Nguyen's own statement to police that Cholo fired first. Nowhere does Nguyen argue that the statement was inadmissable or explain why, once the statement was received in evidence, it could not be referred to in argument. Likewise, the statements introduced at Phung's trial were received in evidence at Phung's request, by stipulation of Phung's counsel. It is not clear exactly why this occurred, but the fact remains that there is no allegation of falsified evidence, prosecutorial bad faith, or even that Nguyen was surprised by the nature of the evidence introduced against him.


23
Nor is it shocking or even unusual that the evidence came in somewhat differently at each trial. Any lawyer who has ever tried a case knows that trial preparation is not a static process. As a case evolves, new witnesses come forward; others become unavailable. As new evidence is uncovered, other evidence loses it significance. What is received in evidence by stipulation in one trial might draw vigorous objection in another.


24
This is not like the prosecutorial misconduct found by this court in Thompson v. Calderon, 120 F.3d 1045, 1057-59 (9th Cir. 1997), rev'd, 523 U.S. 538 (1998). In Thompson, we found that in the second trial of defendant Leitch the prosecutor manipulated evidence and witnesses and "essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson's trial." Id. at 1057. The positions taken by the prosecutor in that case were fundamentally inconsistent because different defendants were charged in separate trials with the same murder that had been committed by an individual. Id. at 1054-56. In this case, both defendants could be guilty of the same crime because of the nature of the crime--the murder of an innocent bystander during gang warfare.


25
In the prior trial of Phung, the main thrust of the prosecution's argument was that under California law, those who take part in gang warfare are equally responsible for the death of an innocent bystander. This was her underlying theory at both trials. It is true that certain details came into evidence differently at the two trials, but the prosecution's theory was not inconsistent in any fundamental way. We hold that the California courts did not err when they concluded in this case that the prosecutor did not violate Nguyen's right to due process of law. It follows that those decisions were not reversible under AEDPA as unreasonable applications of clearly established law.


26
AFFIRMED.



Notes:


1
 It is not clear why the statements were unavailable, but the prosecutor's testimony on that point was not refuted.


2
 The California Court of Appeal held:
The prosecutor recognized the criminal culpability of both  defendant and Phung's group and merely emphasized the evidence as it related to the defendant. The prosecutor argued defendant was guilty of murder under the provocative act doctrine  because he, along with his fellow gang members engaged in a  "gun battle." Although at points, particularly during her discussion of defendant's self-defense claim, she argued the evidence  showed Cholo fired at Phung first, that assertion was not the primary focus of her argument.
The prosecutor cited the prior altercation between Phung and  Tam, the attempt by defendant and others to locate Phung before  the shooting and the subsequently arranged meeting."Now, they  have already given Doi Phung notice that they are after him . . .  So it's only reasonable that they are going to know that this is not  going to be a peaceful confrontation. That Doi Phung is also  going to be prepared." Once the group realized Phung was armed,  the prosecutor noted there was evidence the group stopped at the  convenience store "So that they could check and see that every body was together, everybody had their guns ready, everyone  knew exactly where Doi Phung was so they could take him by  . . . surprise."
Next, the prosecutor argued defendant's group "drove . . .  towards Doi Phung . . . and began firing." The prosecutor also  cited defendant's statement and the physical evidence to support  a finding Cholo initiated the gunfire. She concluded her discussion of the provocative act theory as follows: "If you go in fighting with a rival, the faction of the gangs, that gang member  already knows you are . . . going to fight, he already knows  you've been searching for him and you start shooting at gang  members, it's reasonably foreseeable it's a reasonable response to  be expected that there will be gun fire in exchange.
When that gun fire kills, then you're responsible for the crime  as well when you have initiated that gun battle or have been part  of the gun battle." This argument was proper.
People v. Nguyen, No. GO16854 (Ct. App. Cal. October 18, 1996) (unpublished decision).


