dissenting:
I concur in those portions of Part VTI of the majority opinion that reject Phillips’ *989claims but otherwise dissent. The majority makes three major and independent errors: (1) it grants an evidentiary hearing on a claim not developed in state court, despite the Supreme Court’s reversal in Keeney v. Tamayo-Reyes1 of a similar error our court had made; (2) it treats counsel’s defense of alibi, made at his client’s insistence and despite counsel’s recommendation against it, as ineffective assistance, despite our decision to the contrary in Bean v. Calderon;2 and (3) it treats Phillips’ supposed ineffective assistance and perjury claims as cumulatively prejudicial based on a hypothetical trial that never occurred, instead of evaluating materiality of perjury and prejudice based on the trial that actually took place.
Phillips lured two men to a vacant area off a freeway exit ramp with a lie that his brother (who did not exist) would sell them some stolen insulation. He told them to “get as much cash together as [they] could.” Phillips and his girlfriend drove one car, the two men another. When the two cars stopped at a gas station on the way to the supposed rendezvous, Phillips borrowed a book of matches from one of the men even though he did not smoke and doubtless could have obtained matches at the gas station. When they stopped off the freeway ramp, Phillips shot both men at close range, killing one instantly. He stole their wallets and complained to his girlfriend that he could not find the money they were supposed to have on them. Then he poured gasoline on them and, probably with the matches he had borrowed from them, set them and their car on fire. One of the men, despite being shot and set on fire, escaped from the burning car. Phillips complained to his girlfriend that he “wasn’t dead” and ran the man down with his car, trying yet again to kill him. But this bleeding, burned, and maimed man did not die. He survived and testified at Phillips’ murder trial, along with Phillips’ girlfriend.
Phillips committed this murder and attempted murder on December 7, 1977, twenty-four years ago. In 1980, twenty-one years ago, the people of California tried, convicted, and sentenced Phillips to death for first degree murder with the special circumstance of robbery. Phillips has now avoided the death penalty for more than two decades. His latest angle is that his lawyer gave ineffective assistance of counsel because he presented the alibi defense Phillips insisted on, lying to his lawyer and the jury, instead of the “shoot-out defense” Phillips has now concocted. The majority buys this nonsense, so Phillips will stave off the punishment two juries imposed for many years to come.
I doubt the majority is correct that pre-AEDPA law applies. Phillips filed his amended petition after the AEDPA went into effect.3 But our decision on whether a post-AEDPA petition may be adjudicated under pre-AEDPA law when a petitioner has a different petition pending on different issues is dicta, because the government does not contest the issue. And because the government does not contend *990that the AEDPA should apply, I proceed, like the majority, to apply pre-AEDPA law.
The majority holds that Phillips is entitled to an evidentiary hearing because he has made colorable claims of ineffective assistance of counsel, perjury, and cumulative error. When Phillips talked to his lawyer and went to trial, he insisted, against his lawyer’s advice, on an alibi defense. Phillips now says it was all a lie. He admits that he was at the scene, he did shoot at the men, he did set them on fire, and he did run down the survivor with his car. Decades after his trial, the majority now grants Phillips an evidentiary hearing on whether his lawyer incompetently failed to present a “shoot-out defense.” There is no such defense, except perhaps in Hollywood action movies, because the law does not permit shoot-outs.4 One may claim “self-defense,” but even Phillips lacks the chutzpah to claim he shot two men, set them on fire, and ran down the survivor with his car, in self-defense. He only makes the more modest claim that they had a “shoot-out” and he won.
In two decades of litigation Phillips has presented many claims in many papers, including claims of ineffective assistance of counsel. He now gets the benefit of the now common but highly unlikely assumption that juries impose death penalties because of bad lawyers, rather than bad crimes. Phillips demands, and gets, relief because he says he had a bad lawyer, even though he admits to shooting, burning, and maiming two men, and successfully killing one of them without justification. And the majority now expands the notion of “bad lawyer” to include one who accepts his client’s story, investigates it, and even finds corroboration for it, rather than presenting a different, conflicting story in the face of his client’s insistence. The people of California condemned Phillips to die for his crimes, not for his lawyer, and we have no proper basis for granting relief, including the preliminary relief of yet another evidentiary hearing, decades after everyone’s memory and notes are stale.
I. Cause and Prejudice
As the majority concedes, Phillips told his lawyer that he was not even present at the crime scene, but was instead at a meeting of drug dealers somewhere else. He would not tell his lawyer who or where the people at the claimed meeting were. His lawyer told him this alibi defense did not have much chance of prevailing if Phillips did not disclose where and with whom he spent his time while someone else committed the brutal crimes. But Phillips insisted on the alibi and the lawyer investigated it, even finding a witness whose observations gave the alibi a little bit of corroboration. Now the majority grants Phillips relief on the theory that his lawyer should have discovered and presented a “shoot-out defense” instead. The question that has to occur to anyone reading a case twenty-four years old has to be, “Why didn’t Phillips mention before now that his alibi was a lie, and that his lawyer was a dunce for not presenting his shoot-out defense?” Phillips knew he was lying from the start, and knew his lie was unsuccessful in 1980, but he did not claim ineffective assistance on this ground until 1991, ten years after he perjured himself with his false alibi at trial. He has shown no good cause for failing to develop this ineffective assistance theory in state court, so under controlling Supreme Court authority, Kee-ney v. Tamayo-Reyes.5 and our decision in *991Correll v. Stewart,6 he is not entitled to a federal evidentiary hearing on this theory now.
Phillips has already had two state court evidentiary hearings on post-conviction claims for relief. He had one hearing on a claim of ineffective assistance of counsel, on the theory that his lawyer did not know how many peremptory jury challenges were available. He lost. In a second state habeas petition, Phillips claimed that the government failed to disclose exculpatory evidence (evidence Phillips claims supports his “shoot-out defense”) and that his girlfriend and the prosecutor perjured themselves, and got another evidentiary hearing in 1990. Phillips lost again. The court found Phillips already had this “exculpatory” evidence. Phillips did not develop the facts of his present claim, that his lawyer incompetently failed to present the “shoot-out defense,” in either of these hearings. Yet he knew from the first moment he told his lawyer that he had an alibi that he was lying, and he knew from thé first moment that his lawyer presented his alibi to the jury that it was a false defense. And he knew from the first verdict that his alibi defense was not only a lie but an unsuccessful he. Yet he has shown no cause for failing to develop his current theory of ineffective assistance of counsel, that counsel should have presented a “shoot-out defense,” when the state granted him the first or the second of his evi-dentiary hearings.
In Keeney v. Tamayo-Reyes, the Supreme Court reversed this court’s holding that a habeas petitioner who insufficiently developed a claim in state court was entitled to an evidentiary hearing unless he had deliberately bypassed the orderly procedures of state courts.7 The Court held that the proper standard is “cause” and “actual prejudice.”8 A petitioner is only “entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure.” 9 The only cause Phillips can show for his failure to develop the facts of his present ineffective assistance “shoot-out defense” claim in state court is that when he litigated his first state habeas petition over a decade ago, alibi was his story and he was sticking to it. Nor can Phillips meet “the narrow exception” that “failure to develop a claim in state court proceedings will be excused and a hearing mandated if [a petitioner] can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.”10
In Correll v. Stewart, we denied an evi-dentiary hearing in circumstances analogous to this case.11 The prisoner raised an ineffective assistance claim in state court based on one theory, that his lawyer should have developed a mens rea defense, but not on his other theory, that his lawyer botched his misidentification defense.12 The state court summarily denied his claim.13 When the prisoner sought a federal evidentiary hearing on an ineffective assistance claim based on the “botched misidentification defense theory,” we held *992that Keeney v. Tamayo-Reyes barred relief — even though the state court summarily denied all of his claims without any evidentiary hearing — because he “had access to all the necessary information for raising this issue and for conducting a state-court evidentiary hearing” but did not raise the claim when he raised his' other ineffective assistance claim.14
Like the prisoner in Correll, Phillips raised an ineffective assistance claim in state court based on one theory, his lawyer’s ignorance about peremptory jury challenges, but not on his other theory, that the lawyer should have presented a “shoot-out defense.” As in Correll, Phillips knew the facts needed to present this theory when he presented his other theory, because he had always known he was lying. And likewise, Phillips must show adequate cause for failing to raise this theory of ineffective assistance when he raised his other theory. But the only cause Phillips can show — his belief that the benefits of lying outweighed the benefits of telling the truths — is not adequate, because trials do not exist to test which lie works better, but to find the truth.
The majority attempts to avoid Correll by noting that Phillips raised his “shootout defense” theory in later state court petitions and was not granted a hearing on it. But that begs the question of why he did not raise it when he was granted a hearing, the first time on his other ineffective assistance claim, and the second time on his other claims. The majority then claims Correll justifies its result, quoting a different section discussing the prisoner’s claim of ineffective assistance at sentencing based on his lawyer’s almost total failure to mount a defense.15 The prisoner had raised this specific claim in state post-conviction proceedings, but the state court summarily dismissed the petition despite the prisoner’s “proper request” for an evi-dentiary hearing.16 We held that adequate cause was shown where the petitioner “tried and failed through no fault of his own to develop the facts relevant to his ineffective assistance claim at the state-court level.”17 Phillips did not fail to develop his claim “through no fault of his own.” He was at fault, because he was sticking to his lie.
II. Ineffective Assistance of Counsel
If a petitioner’s allegations, even if proved, would not entitle him to relief, he does not raise a colorable claim and is not entitled to an evidentiary hearing.18 Phillips’ theory that his lawyer rendered ineffective assistance by failing to present his “shoot-out defense” is not a colorable claim under the controlling precedents of Turk v. White19 and Bean v. Calderon.20 Turk holds that once defense counsel reasonably selects a theory of defense, he cannot be held to have rendered deficient performance under Strickland v. Washington21 for failing to investigate or present an alternative defense that would have been inconsistent with the defense presented.22 *993Turk goes to investigation, not just presentation, and holds that a lawyer does not have to investigate an alternative defense before rejecting it.23
The notion that an ineffective assistance claim could be based on counsel’s decision to present the alibi the client insisted on, instead of another defense, was laid to rest by Bean v. Calderon.24 In Bean, as in this case, the prisoner lied to his lawyer and the jury, claiming that he was not at the scene of the crime.25 He asserted his false alibi to his lawyer, and stuck to it, even though it was perhaps even weaker than the false alibi defense in this case.26 Then he sought habeas relief on the ground that his lawyer rendered ineffective assistance by presenting an alibi defense instead of a defense of diminished capacity.27 We held that the lawyer reasonably chose to present the alibi defense because the prisoner told his lawyer he was not there and refused to accept an alternative defense, diminished capacity.28 And “because the diminished capacity defense would have conflicted with the alibi theory, it was within the broad range of professionally competent assistance” for the lawyer not to investigate or present it.29 That is controlling, but the majority fails to follow it, so we now have an intra-circuit conflict of authority on whether a lawyer renders ineffective assistance by presenting an alibi defense that the client insists on and not investigating alternative defenses inconsistent with alibi.
The majority attempts to distinguish Bean and Turk on the ground that Phillips’ lawyer did not select the alibi defense based on a reasonable investigation. But Phillips’ lawyer did investigate, and even found a witness whose observation of an armed man other than Phillips making arguably self-incriminating remarks tended to corroborate the alibi. And he sensibly advised Phillips that an alibi was unlikely to succeed where the defendant refused to say where he was or with whom.
The majority makes a disturbing misuse of precedent, by purporting to rely on Johnson v. Baldwin.30 We held in Johnson that the presentation of a patently false alibi prejudiced a rape defendant, because his obviously false alibi testimony undercut the uncontradicted scientific evidence that showed he was factually innocent of the rape.31 The reason that the majority’s reliance on Johnson is a disturbing misuse of precedent is that in Johnson, we expressly avoided considering whether counsel’s performance was deficient.32 Yet today’s majority opinion treats Johnson as though it were precedent for the majority’s extraordinary deficient performance holding. The state had conceded deficient performance under Strickland, so “the sole issue in this appeal” was whether the false alibi prejudiced the defendant, not whether the lawyer reasonably investigated the alibi.33 When we say “the sole issue on appeal” is B, because issue A is conceded, that means *994that the case does not stand for anything at all on A. There is no reason to think that the split decision in Johnson would have come out the same way had deficient performance not been conceded.
The majority asserts that “Johnson’s precedential value is not limited to the question of prejudice” because the court “necessarily evaluated counsel’s performance ... in determining [prejudice]” and concluded that counsel’s performance was “objectively deficient.”34 That is precisely wrong. Because deficient performance was conceded in Johnson, and we limited our decision to what we said was “the sole issue on appeal,” prejudice, we necessarily did not evaluate counsel’s performance and determine that it was deficient.35 We found prejudice because the false alibi defense vitiated the force of the scientific evidence defense, that the two alleged rapists who were supposed to have ejaculated at least twice had left no sperm or semen.36
The majority also claims that Phillips’ lawyer did not make a reasonable investigation because he testified in a post-conviction hearing that he would have presented the “shoot-out defense” had he only possessed certain documents, documents he in fact did possess.37 Subsequently the lawyer corrected this account, when his recollection was refreshed by additional material petitioner’s counsel had not furnished to him when the helpful testimony had been obtained. Because evidentiary hearings on post-conviction relief petitions occur years after the events, they often introduce error on account of fading memory and partial records. The majority errs in two ways. First, the lawyer’s hindsight subjective assessment of his performance does not establish whether “counsel’s representation fell below an objective standard of reasonableness” “as of the time of counsel’s conduct.”38 Second, even if the lawyer possessed but did not review evidence supporting a “shoot-out defense,” his failure to investigate the “shoot-out defense” has no bearing on whether he reasonably investigated the alibi defense. Under Bean and Turk, a lawyer does not have to investigate alternative defenses and then choose one; instead, once he reasonably investigates one defense, his duty to investigate any other defense ends.39
Bean is precisely analogous to this case. Phillips insisted on his alibi defense, telling his lawyer that he was not at the scene of the crime, despite his lawyer’s strong recommendation that it was unlikely to be effective. We cannot treat the lawyer’s decision to present the alibi defense as deficient under Strickland v. Washington 40 when we held the same decision was not deficient in Bean41 In this case, Phil*995lips’ lawyer at least found some support for an alibi defense, a witness who testified that the day after the murder, a man other than Phillips carrying a .45 caliber handgun claimed he saw or was involved in a gun battle at the scene of the murder. That is pretty good corroboration for a false alibi, much better than anything counsel in Bean had. Following Strickland’s admonition that “the reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions,”42 we held in Bean, following Turk, that counsel did not even have to investigate the alternative theory.43 “Once [defense counsel] reasonably chose that theory, largely on the basis of Bean’s own representations, his duty to investigate the directly conflicting diminished capacity defense was at an end.”44 That is a holding on all fours with this case, and controls it. A defendant himself has some responsibility for the quality of the legal representation he receives.45 If a defendant lies to his lawyer, and his case suffers because it is based on that lie, the defendant himself bears some or all of the responsibility for the deficiency.46
III. Perjury and Cumulative Error
The majority’s analysis of perjury and cumulative error is directed to a hypothetical trial that never occurred, not Phillips’ actual trial. At trial, Phillips’ girlfriend contradicted his alibi, so he tried to impeach her by showing that she was perjuring herself in exchange for lenience from the government. But he now admits that his alibi testimony was a lie, the perjury was his, and the majority is forced to concede that the girlfriend’s alleged perjury about her plea bargain did not affect the jury’s verdict. In response to Phillips’ cross-examination, she testified that she expected “consideration” for her testimony but not a “benefit,” a fine distinction indeed. The prosecutor also testified that he had not “communicated” a deal to the girlfriend, because he had a bizarre practice of making deals with defense counsel but instructing them not to tell their clients. This let his witnesses deny that, to their knowledge, they had a deal. Phillips says the prosecutor and his girlfriend both committed perjury, on the theory that they really had a deal, and she should be “deemed” to have agreed to a deal, whether she knew about it or not, because her lawyer had agreed to it.
Now for the majority’s cumulative error argument, which gets hypothetical to the point of “if my grandmother had wheels, she would be a bus.” The majority proceeds on the assumption that if Phillips’ *996lawyer had been minimally competent, he would have tried the case on the “shootout” theory instead of the alibi Phillips insisted on. Then the majority assumes that in this hypothetical trial that never happened Phillips’ girlfriend and the prosecutor would have given exactly the same testimony about her deal. The idea is that in that hypothetical trial Phillips would have been prejudiced because the imaginary perjury would have prevented him from impeaching his girlfriend’s testimony, and that would have weakened his never-presented “shoot-out defense” and his defense that he did not kill the men to rob them, but only stole their money incidentally, as an afterthought, when he was stealing their identification. Chutzpah indeed!
Phillips’ cumulative prejudice theory has a fatal flaw in addition to its failure to pass the straight face test: the prejudice only happened in an imaginary case in which Phillips would have supposedly presented a “shoot-out defense,” not the case actually tried. The claimed prejudice never happened, because the case presenting a “shoot-out defense” never happened. Thus the case for which the “I’m expecting consideration” testimony was supposedly prejudicial and perjurious never was tried. Materiality and prejudice must occur in the case that was tried, not in an imaginary case.
Who knows what witnesses might have testified and how they might have been impeached if Phillips had told the truth? A habeas petition has to be based on constitutional error in the trial that occurred, not a trial that was prevented by the defendant’s own perjury. The requirement of prejudice means actual prejudice in an actual trial,47 as opposed to imaginary prejudice in an imaginary trial.
The people of California did not sentence Phillips to death because he had a bad lawyer. They sentenced him to death for his crimes on December 7, 1977. I dissent.
. 504 U.S. 1, 5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).
. 163 F.3d 1073, 1082 (9th Cir.1998).
. The majority states that “[i]n these circumstances, we treat Phillips' amended petition ... as part of his earlier, erroneously dismissed petition, and apply pre-AEDPA law,” citing Williams v. Calderon, 83 F.3d 281, 285 (9th Cir.1996). Williams stands for the proposition that if a petitioner loses under pre-AEDPA law, the court need not decide whether the AEDPA applies. Id. at 285-86. The district court applied pre-AEDPA law to Phillips’ petition on this basis. Since the majority decides Phillips wins under pre-AEDPA law, Williams does not control.
. People v. Bolden, 71 Cal.App.4th 730, 84 Cal.Rptr.2d 111, 117 (1999) (noting the general rule that a person engaged in mutual combat may not claim self-defense).
. 504 U.S. 1, 11, 112 S.Ct. 1715, 118 L.Ed.2d *991318 (1992).
. 137 F.3d 1404, 1411 (9th Cir.1998).
. 504 U.S. 1, 4, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).
. Id. at 11, 112 S.Ct. 1715.
. Id.
. Id. at 11-12, 112 S.Ct. 1715.
. 137 F.3d 1404, 1411-12 (9th Cir.1998).
. Id. at 1410.
. Id.
. Id. at 1412.
. Id. at 1412.
. Id. at 1413.
. Id. at 1414 (quoting Jones v. Wood, 114 F.3d 1002, 1012-13 (9th Cir.1997) (emphasis added)).
.See Rich v. Calderon, 170 F.3d 1236, 1239 (9th Cir.1999); Correll, 137 F.3d at 1411.
. 116 F.3d 1264 (9th Cir.1997).
. 163 F.3d 1073 (9th Cir.1998).
. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Turk, 116 F.3d at 1266-67.
. 116 F.3d at 1267.
. 163 F.3d 1073, 1082 (9th Cir.1998).
. Id. at 1075-76.
. Bean’s fingerprints were found at the murder scene and he confessed the crime to a witness. Id. at 1075.
. Mat 1081.
.Id. at 1082.
. Id.
. 114 F.3d 835, 840 (9th Cir.1997).
. Id. at 838-840.
. Id. at 838.
. Id.
. Mai. Op. at 979 (quoting Johnson, 114 F.3d at 840).
. Even if one misread Johnson to have some bearing on deficient performance, it would be distinguishable from Bean because counsel in Johnson apparently made no investigation of the defendant's alibi. Johnson, 114 F.3d at 839. Here, as in Bean, Phillips’ lawyer reasonably investigated the alibi under the circumstances, the most important circumstance being Phillips' insistence on the alibi.
. Johnson, 114 F.3d at 838-840.
. Maj. Op. at 977, n.5.
. Strickland v. Washington, 466 U.S. 668, 688, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Bean v. Calderon, 163 F.3d 1073, 1082 (9th Cir.1998); Turk v. White, 116 F.3d 1264, 1266-67 (9th Cir.1997).
. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Bean, 163 F.3d at 1082.
. Strickland, 466 U.S. at 691, 104 S.Ct. 2052.
. Bean, 163 F.3d at 1082.
. Id.
. See, e.g., Moore v. Johnson, 194 F.3d 586, 605-606 (5th Cir.1999) (rejecting an ineffective assistance claim based on counsel's presentation of a false alibi because the defendant was "presumed to be the master of his own defense" and “maintained his innocence and endorsed the alibi defense” in trial, direct appeal, and state habeas proceedings).
. See, e.g., Tyson v. Keane, 159 F.3d 732, 736 (2d Cir.1998) (rejecting an ineffective assistance claim where the "principal reason” counsel pursued the " ‘wrong’ defense strategy” was the defendant's "own conduct, whether characterized charitably as lack of candor or as a lie”); Brewer v. Aiken, 935 F.2d 850, 859-60 (7th Cir.1991) ("It would be absurd to create a rule allowing a defendant to go free if perjured testimony succeeds while at the same time providing for a new trial if the witness is a poor liar. Thus, we refuse to hold that the presentation of perjured testimony at the request of the defendant is adequate to constitute ineffective assistance of counsel.”).
. See, e.g., Brecht v. Ahrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (habeas claim based on trial error must establish "actual prejudice”); Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("Even if a defendant shows that particular errors of counsel were unreasonable ... the defendant must show that they actually had an adverse effect on the defense.”).