dissenting:
On September 2, 1995, three armed men robbed a Lyons Restaurant in Santa Clara, California. One — and only one — of the three held a gun to Cheryl Bishop’s head in an unsuccessful attempt to gain access to the restaurant’s safe. People v. Watts, 76 Cal.App.4th 1250, 91 Cal.Rptr.2d 1, 7 (1999) (“[Ujnder any version of the evidence, only one man actually held a gun to Bishop’s head as she attempted to open the safe.”). Nevertheless, state prosecutors acting in bad faith secured convictions and sentence enhancements against two individual defendants for an offense that only one could commit.
Prosecutors first charged Jonathan “Pee-Wee” Shaw with multiple counts associated with the armed robbery, including several counts related to Bishop’s alleged assault (Cal-Penal Code §§ 211, 245(a)(2)). At trial, prosecutors argued that Shaw was Bishop’s armed assailant, and the jury found Shaw guilty on these counts. Having secured Shaw’s conviction, prosecutors then reversed course and filed similar charges against Mango Watts. During Watts’s trial, prosecutors contended that it was Watts — not Shaw — who threatened Bishop with the gun. As a result, both Shaw and Watts were convicted of second-degree robbery and assault with a firearm against Bishop, and both received sentence enhancements for personal use of a firearm in connection with these charges. To date, state prosecutors have made no attempt to correct either defendant’s conviction.
The majority contends that Shaw was not denied his right to due process because his conviction was neither contrary to, nor involved an unreasonable application of, clearly established principles of federal law as defined by the Supreme Court. My own review of the Supreme Court’s relevant cases suggests the opposite conclusion.
I.
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), we may order habeas corpus relief to a state prisoner only if the state court’s decision is “contrary to, or involve[s] an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court conviction involves an “unreasonable application” of federal law if it (1) “correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable,” or (2) “extends or fails to *707extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.2000), overruled in part on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
II.
Any due process review involving prose-cutorial malfeasance should take into account Justice Sutherland’s statement in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):
The [prosecutor] is the representative' not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor— indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Id. at 88, 55 S.Ct. 629, overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
The prosecutor’s duty to seek the truth and vindicate the demands of justice distinguishes his role from that of ordinary trial counsel. As the state’s representative, the prosecutor may not assume “the role of an architect of a proceeding that does not comport with standards of justice.” Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While other litigants may seek to maximize their own self-interest at their adversary’s expense, a prosecutor may not knowingly obscure the truth or employ other litigation tactics designed to produce a false conviction.
Thus, although the prospect of “different juries ... reaching] different results under [a] criminal statute ... is one of the consequences we accept under our jury system,” Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), quoting Roth v. United States, 354 U.S. 476, 492 n. 30, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), prosecutorial foul play clearly is not “one of the consequences we accept” under our adversary system of criminal justice. A prosecutor’s solemn responsibility to ensure that innocent suspects do not suffer unjust convictions extends beyond the maxim that “justice must satisfy the appearance of justice” in an individual case. Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954). When a prosecutor obtains a defendant’s conviction pursuant to a false factual theory or otherwise allows an unjust conviction to go uncorrected, due process demands that he take affirmative steps to correct his error — even if the error originally was committed in good faith. Cf. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (describing the prosecutor’s duty to refrain from exploiting false evidence to secure an unjust conviction as a principle “implicit in any concept of ordered liberty”).
Contrary to the majority’s implicit assertion, the Supreme Court “need not have addressed the identical factual circumstances at issue in [this] case in order for it to have created ‘clearly established’ law governing [this] case’ rather, AEDPA’s “unreasonable application” test applies whenever the Supreme Court has clearly *708established a principle intended for application in variant factual situations. Id. at 1154. Without question, the prosecutors who presided over the trials of Shaw and Watts violated Berger’s clearly established principles by employing a prosecution strategy “calculated to produce a wrongful conviction.” Id. Even under AEDPA’s stringent standard, such flagrant prosecu-torial bad faith cannot withstand habeas review.
III.
Shaw’s due process argument will sound familiar to students of this circuit’s habeas jurisprudence, for we considered the very same issue in Thompson v. Calderon, 120 F.3d 1045 (1997) (en banc), rev’d on other grounds, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). In Thompson, prosecutors brought capital murder charges against two defendants, obtaining convictions against both by presenting inconsistent factual theories in separate trials. Id. at 1055-57. We declared the state’s conduct inimical to due process, and we vacated and remanded Thompson’s first-degree murder conviction. Id. at 1058-59.
Although Thompson involved a pre-AEDPA habeas petition and therefore does not formally control our decision in this case, Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999), I consider Thompson persuasive authority for the purpose of determining whether Shaw’s conviction violates the Supreme Court’s “clearly established” due process requirement. Id. Our decision in Thompson rested on a complete review of the Supreme Court’s past pronouncements concerning the due process limitations on prosecutorial decision making. Among these, we placed special emphasis on the Constitution’s “overriding concern with the justice of the finding of guilt,” United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and the Due Process Clause’s guarantee of “the rightr to a trial that comports with basic tenets of fundamental fairness.” Thompson, 120 F.3d at 1058, citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). We stated that the Court had stressed the prosecutor’s “unique duty to ensure fundamentally fair trials by seeking not only to convict, but also to vindicate the truth and to administer justice.” Thompson, 120 F.3d at 1058, citing Berger, 295 U.S. at 88, 55 S.Ct. 629. We also observed that the Supreme Court had applied these clearly established due process principles in several decisions to reverse convictions obtained through false evidence whether discovered before or after trial. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Napue, 360 U.S. at 269, 79 S.Ct. 1173. The import for Thompson’s habeas challenge was plain: “From these bedrock principles, it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Thompson, 120 F.3d at 1058. Put simply, we held that the Supreme Court’s due process jurisprudence left little doubt that “the prosecutor’s actions of advancing inconsistent theories constituted a ‘fundamental and egregious error’ that violated the Due Process Clause.” Id. at 1059, quoting Drake v. Kemp, 762 F.2d 1449, 1470 (11th Cir.1985) (en banc) (Clark, J., concurring).
While it is true, as the majority suggests, that the prosecutors in Thompson presented not only inconsistent factual theories but also inconsistent testimonial evidence to support these theories, the en banc court’s decision focused primarily on the prosecutor’s bad faith in presenting inconsistent constructions of the relevant facts in the two trials rather than on con*709tradictions within the prosecution’s testimonial evidence itself:
The prosecution’s theories of the same crime in the two different trials negate one another. They are totally inconsistent. This flip-flopping of theories of the offense was fundamentally unfair. ... The state cannot divide and conquer in this manner....
Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed search for truth. In prosecuting [both defendants] for[a crime that only one could commit], the prosecutor changed his theory of what happened to suit the state. This distortion rendered [the first defendant’s] trial fundamentally unfair.
Id. at 1059, quoting Drake, 762 F.2d at 1479 (Clark, J., concurring). The use of false testimony may exacerbate a prosecutor’s malfeasance, but we recognized that the touchstone for due process analysis was “whether the prosecutor presented at the trial a theory and set of facts that he knew contradicted the theory and facts that he planned to advance, and eventually advanced, at [another defendant’s] trial.” Id. at 1058 n. 12 (emphasis added).
The majority goes to great lengths to distinguish Thompson’s facts. I cite this case, however, not because the facts are similar to those presented here and therefore command a similar result, but rather because the decision illuminates “clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Thus, the majority’s extensive effort to distinguish Thompson’s facts misses the more important point: under the Supreme Court precedents cited and applied in Thompson, a prosecutor’s bad faith presentation of inconsistent factual theories to convict two defendants for an offense that only one could commit violates clearly established constitutional principles. As the Supreme Court decisions cited in Thompson suggest, prosecutors may violate due process not only by the particular improper means they employ to secure convictions (i.e., inconsistent factual theories), but also by knowingly pursuing reprehensible ends (i.e., a wrongful conviction against one of the two convicted defendants).
Thus, Thompson’s reading of the Supreme Court’s “clearly established” due process requirements assist in disposing of this case. However, because Thompson did not involve habeas review under AED-PA, we did not consider at that time whether a contrary holding would constitute an “unreasonable application” of the Supreme Court’s due process jurisprudence. Any uncertainty concerning Thompson’s contemporary relevance was put to rest, however, by Nguyen v. Lindsey, 232 F.3d 1236 (9th Cir.2000). Like the instant case, Nguyen involved post-AEDPA habeas review of a prosecutor’s use of inconsistent factual theories in separate trials against separate defendants. Id. at 1237-40. Citing Thompson, we explained:
The Supreme Court has held that prosecutors violate a defendant’s right to due process if they knowingly use false evidence. 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.
Id. at 1240 (internal citations omitted) (emphasis added).
Focusing on Nguyen’s statement that a prosecutor may violate due process by “knowingly us[ing] of false evidence,” the majority overlooks Nguyen’s equally important principle: a prosecutor’s “bad faith” presentation of fundamentally incon*710sistent theories likewise violates clearly established due process principles as defined by the Supreme Court. Contrary to the majority’s assertion, Nguyen did not cite Thompson for the notion that a prosecutor may use inconsistent factual theories to convict two defendants of the same crime as long as these theories are “consistent with the evidence actually adduced at trial,” id. Rather, Nguyen recognizes that prosecuting two defendants under inconsistent factual theories for an offense that only one could commit is inherently an exercise of bad faith:
This [case] is not like the prosecutorial misconduct found by this court in Thompson v. Calderon .... 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. 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.
Id. at 1240-41 (emphasis added, internal citations omitted). In Nguyen, the prosecutor did not knowingly convict an innocent defendant because the crime by definition allowed for the prosecution of both defendants irregardless of which defendant physically pulled the trigger. Thus, unlike Shaw and Thompson, Nguyen did not — and, indeed, could not — argue that the prosecutor acted in bad faith. Although we distinguished Nguyen’s facts from those presented in Thompson — just as the majority distinguishes Thompson— our analysis in Nguyen recognized that a state conviction in conflict with Thompson’s holding would constitute an objectively “unreasonable application” of federal law.
Here there can be no serious dispute that prosecutors acted in bad faith when they knowingly obtained the conviction of an innocent defendant. Logic dictates that at least one of the two convictions was necessarily obtained through “foul blows.” Berger, 295 U.S. at 88, 55 S.Ct. 629; see also Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir.2000) (characterizing the prosecution’s “use of factually contradictory theories” as “foul blows”). The state’s decision to prosecute both Shaw and Watts separately under inconsistent factual theories for acts that only one could commit displayed shocking indifference toward “the fundamental conceptions of justice which lie at the base of our civil and political institutions,” Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L.Ed. 270 (1926), and thus violated the core interests protected by the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103, 112-13, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
IV.
Whose due process rights were violated, Shaw’s or Watts’s? Clearly, only one of the defendants actually committed the offense against Bishop, and the prosecutor had a constitutional duty to atone for its bad faith prosecution of both defendants by attempting to correct at least one of the two convictions. See Thompson, 120 F.3d at 1059 (Kozinski, J., dissenting) (suggesting that “[i]n the case of mutually inconsistent verdicts, ... the state is required to take the necessary steps to set aside or modify at least one of the verdicts”); Drake, 762 F.2d at 1479 (Clark, J., concurring) (arguing that a prosecutor’s use of inconsistent factual theories violates both defendants’ rights). Shaw’s claim that he, rather than Watts, was prejudiced by the prosecutor’s conduct is not inconsistent with the record. By prosecuting Watts for the same offense under an inconsistent factual theory, the state arguably mani*711fested its rejection of the factual premises underlying Shaw’s conviction and assumed a duty to ensure that “innocence [did not] suffer.” Berger, 295 U.S. at 88, 55 S.Ct. 629. I cannot support an outcome that assumes a constitutional violation of either Watts’s or Shaw’s rights, but concludes there is no remedy. Thus, at very least, due process requires that we grant Shaw an evidentiary hearing to demonstrate prejudice. Thompson, 120 F.3d at 1064 (Tashima, J., concurring).
V.
Guided by the Supreme Court’s due process jurisprudence and persuaded by the reasoning employed in Thompson and Nguyen, I cannot accept the majority’s conclusion that Shaw’s conviction rested on a reasonable application of federal law as determined by the Supreme Court. True, the record indicates that Shaw participated in the robbery in some capacity, whether or not he personally assaulted Bishop. Nevertheless, state prosecutors were not entitled to attribute the discrete acts involving Bishop to both Shaw and Watts in order to artificially inflate their conviction tally. As Justice Douglas once cautioned, “[t]he function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial.” Donnelly v. DeChristoforo, 416 U.S. 637, 648-49, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (Douglas, J., dissenting).
Criminal trials function not only to punish the guilty, but also to satisfy society’s interest in maintaining the criminal justice system’s integrity and legitimacy. As such, “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 U.S. at 87, 83 S.Ct. 1194; see also Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (“The public conscience must be satisfied that fairness dominates the administration of justice.”). The Supreme Court has recognized on numerous occasions that our criminal justice system’s legitimacy relies upon the “special role played by the American prosecutor in the search for truth in criminal trials,” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), and the Court has proscribed “improper methods calculated to produce a wrongful conviction.” Berger, 295 U.S. at 88, 55 S.Ct. 629.
Here the prosecution abandoned its indispensable truth telling function when, in separate trials, it knowingly prosecuted two defendants for acts that only one could perform. If extended to other trials, these “divide and conquer” tactics will inevitably produce unjust convictions and undermine public confidence in our criminal justice system. See Herrera v. Collins, 506 U.S. 390, 420, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (O’Connor, J., concurring) (“Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.”). Because clearly established principles of federal law prohibit such tactics, I would reverse the district court’s denial of Shaw’s habeas petition. Accordingly, I dissent.