ALARCON, Circuit Judge:
Appellant Howard L. Bashor (Bashor), a Montana prisoner, petitioned for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The district court, 539 F.Supp. 259, denied the petition. Bashor appeals. We affirm.
FACTS
Appellant Bashor was convicted of deliberate homicide following a jury trial in a Montana state court. It is undisputed that James Hurley died of a gunshot wound inflicted by the appellant on December 3, 1977 in Kevin, Montana. There are differing versions of the events that led to Hurley’s death.
The state presented evidence at trial that on the evening of December 2, 1977, Hurley, Marian Irgens, Duane Enneberg, and Jeanette Frost visited Bert’s Bar in Kevin. During the evening, Irgens twice noticed Bashor’s car being driven down the road adjacent to the bar. At approximately 1:30 a.m. on the morning of December 3, the group decided to leave the bar. As they [1232]*1232left, Bashor’s vehicle was observed parked a short distance away from the bar with its headlights on. Bashor’s friend, William Schaeffer, was standing in front of the vehicle. Schaeffer shouted at the group. Hurley and Enneberg approached Bashor’s vehicle. Schaeffer confronted Enneberg in front of the vehicle. Hurley proceeded toward the driver’s window. Bashor was seated in the driver’s seat. Within seconds, a shot was heard and Hurley walked away from the vehicle saying, “I’ve had it.” He died shortly thereafter.
Bashor testified that, upon arriving at Bert’s Bar, he noticed Hurley’s vehicle parked outside the bar. He decided not to go inside until Hurley and his friends had left. Schaeffer was sitting in the passenger’s seat of Bashor’s vehicle.
Bashor said Hurley left the bar and entered his vehicle. Thereafter, Hurley and Duane Enneberg left Hurley’s vehicle and approached 'Bashor’s vehicle. Bashor rolled down his window and told Hurley to go away. Hurley grabbed Bashor by the throat and one arm in an attempt to force Bashor out of the vehicle.
Bashor’s left eye had been operated on to remove a cataract and implant a plastic lens. Bashor feared that any blow to his head would dislocate the lens, permanently damaging his eye. Bashor reached for his pistol, which was in a compartment between the front seats of the vehicle. The struggle continued until the gun went off.
After being picked up by the police, Schaeffer underwent a polygraph examination. His answers were to the effect that Hurley had been the aggressor in the altercation. The operator of the polygraph stated in a deposition that he was satisfied that Schaeffer’s answers were truthful. The state filed a motion in limine seeking to prohibit Bashor from entering the results of Schaeffer’s polygraph examination into evidence. The motion was granted.
Bashor moved for a change of venue based on inflammatory pretrial publicity and general bias against him in Toole County, Montana. The judge reserved his ruling on the motion pending the outcome of the voir dire examination of the jury. At the conclusion of voir dire, the judge denied Bashor’s motion.
The jury returned a verdict of guilty of deliberate homicide. Bashor was sentenced to Montana State Prison for a term of thirty years, with ten years suspended. On appeal, the Montana Supreme Court affirmed Bashor’s conviction. State v. Bashor, 614 P.2d 470 (Mont.1980) (3-2 decision). On July 17, 1981, Bashor filed a petition for post-conviction relief in the Montana Supreme Court, which was denied on October 19, 1981.
Having exhausted his state remedies, Bashor filed a petition for a writ of habeas corpus in the United States District Court. Bashor was granted leave to proceed in forma pauperis. The district court denied Bashor’s motion for appointment of counsel. The district court ordered an expansion of the record to include a copy of the jury instructions. Bashor’s petition was denied.
ANALYSIS
“State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963). If the petitioner has a proper claim then “even a single federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question.” Sumner v. Mata, 449 U.S. 539, 543-44, 101 S.Ct. 764, 767, 66 L.Ed.2d 722 (1981) (Sumner I). Nevertheless, 28 U.S.C. § 2254(d) limits this authority by mandating a presumption that the factual determinations of the state courts are correct. This presumption is rebutted or inapplicable when one of the seven specified factors showing a denial of due process is present (§ 2254(d)(l)-(7)) or the federal court determines that the state’s findings are not fairly supported by the record (§ 2254(d)(8)). Sumner v. Mata, [1233]*1233455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982) (Sumner II).
It appears from the record that Bashor did receive due process of law in the state court proceedings and that the state’s findings are fairly supported by the record. We therefore, will accord the state’s factual findings the required presumption of correctness, as did the district court.1
Bashor has set forth numerous grounds for relief. We consider each contention and its pertinent facts under separate headings.
1. Denial of Evidentiary Hearing
Bashor contends that the federal district court should have granted him an evidentiary hearing on his claims of: (1) insufficiency of the evidence, (2) erroneous admission of evidence of threats made by Bashor to Irgens, (3) ineffective assistance of counsel, and (4) improper jury instructions on self-defense. To be entitled to an evidentiary hearing, we must determine (1) whether petitioner’s allegations, if proved, would establish the right to relief, and (2) whether the district court was required to hold an evidentiary hearing to ascertain facts to establish the truth of the allegations. Townsend v. Sain, 372 U.S. at 309, 83 S.Ct. at 755; Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir.1982), cert. granted, — U.S. —, 103 S.Ct. 1425, 75 L.Ed.2d 787, and cert. denied, — U.S. —, 103 S.Ct. 1450, 75 L.Ed.2d 804 (1983). We have determined that a federal evidentiary hearing was not required. Although petitioner’s allegations, if proved, would entitle him to relief, there is no need for a federal evidentiary hearing to ascertain facts to support those allegations.
The issues of admissibility of evidence and propriety of jury instructions were given a full hearing by the state court. A federal evidentiary hearing was not required on those issues. Townsend v. Sain, 372 U.S. at 312-13, 83 S.Ct. at 756-57 (federal evidentiary hearing required unless full and fair, reliable hearing in a state court). Whether the evidence was sufficient to support the verdict must be determined from a review of the evidence in the record in the state proceedings. No evidentiary hearing was required on this issue before the federal district court.
An evidentiary hearing is sometimes necessary to determine whether assistance of counsel was effective. See Sober v. Crist, 644 F.2d 807, 808 (9th Cir.1981) (remand for hearing because “record does not show whether counsel was effective or not”); Miller v. McCarthy, 607 F.2d 854, 857 (9th Cir.1979) (remand for hearing on contentions that petitioner urged attorney to act, but attorney failed to discuss or prosecute the appeal). Bashor claims that his trial counsel (1) failed to elicit exculpatory testimony, (2) failed to object to testimony offered at trial that had already been ruled inadmissible, and (3) failed to request an instruction on lesser included offenses. The state court records for this case are adequate to review these allegations of ineffectiveness. (See discussion on effectiveness of counsel.) A federal evidentiary hearing was not required to resolve the question of the competency of counsel.
In a memorandum attached to his petition, Bashor argued that a courtroom outburst at trial demonstrated that the trial was conducted in such a hostile atmosphere that he should have been granted a change of venue. Bashor failed to set forth in his petition for a writ of habeas corpus or in the memorandum any facts concerning the alleged courtroom outburst or supporting the conclusion that he was tried in a hostile community. A federal district court is not required to grant an evidentiary hearing where the allegations in the petition are “conclusory and wholly devoid of specifics.” Boehme v. Maxwell, [1234]*1234423 F.2d 1056, 1058 (9th Cir.1970). A habeas corpus petitioner seeking an evidentiaryhearing must allege actual facts which if proved would entitle him to relief. Townsend v. Sain, 372 U.S. at 312, 83 S.Ct. at 756; 28 U.S.C. § 2242.
In the absence of the allegation of any facts, the district court could only speculate about the nature of the “courtroom outburst”. The district court did not err in refusing to hold an evidentiary hearing where no facts were pleaded from which it could be inferred that the petitioner was tried before a hostile jury or that the courtroom disturbance had a prejudicial impact on his constitutional rights.
2. Denial of Appointed Counsel
Bashor contends that the district court abused its discretion by not appointing counsel to represent him in district court under the authority of 18 U.S.C. § 3006A(g). Section 3006A(g) provides that counsel may be appointed for an impoverished habeas petitioner whenever “the court determines that the interests of justice so require.... ” Such appointment of counsel becomes mandatory, when an evidentiary hearing is required. Rule 8, 28 U.S.C. foll. § 2254; Wood v. Wainwright, 597 F.2d 1054 (5th Cir.1979). The district court concluded that an evidentiary hearing was not required. Appointment of counsel was, therefore, not mandatory but discretionary.
The district court found that the petitioner was adequately representing himself and stated that less stringent standards would be applied to his pleadings than to those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (pro se complaint held to less stringent standards). Although the appellant is over 60 years of age and has no background in the law, he thoroughly presented his issues in the habeas petition and the accompanying memorandum of law. The court acted within its discretion when it determined that the interests of justice did not require appointment of counsel.
3. Change of Venue
Bashor contends that because of pretrial publicity and community bias only a change of venue could assure him a fair trial.
The Sixth and Fourteenth Amendments guarantee an accused the right to an impartial jury. A change of venue is not the only procedure available to assure an impartial jury, but it must be available as an option when the community from which the jury is to be drawn is so permeated with hostility that no other procedure can adequately protect the constitutional rights of the accused. Groppi v. Wisconsin, 400 U.S. 505, 509-11, 91 S.Ct. 490, 492-93, 27 L.Ed.2d 571 (1971) (continuances and voir dire examination are not always adequate to effectuate constitutional guarantee to impartial jury). Montana law does provide for a change of venue when there is “such prejudice that a fair trial cannot be had____” Mont.Code Ann. § 46-13-203(1).
Bashor made a motion for a change of venue prior to his trial. The Montana judge held a full hearing on the motion and reserved his ruling until after the voir dire examination. After a careful voir dire examination, the judge denied the motion. The state appellate court reviewed the record and found that the trial judge did not abuse his discretion in denying the motion.
Our duty as a federal court sitting in habeas corpus is to make an independent review of the record to determine whether there was such a degree of prejudice against the petitioner that a fair trial was impossible. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (federal judge has duty independently to evaluate voir dire testimony).
a. Prejudicial Publicity and Community Hostility
Bashor contends that news accounts which appeared shortly after the homicide aroused the community against him and made it impossible to select a fair and impartial jury without a change of venue.
[1235]*1235Bashor submitted one article from a local newspaper and a single news broadcast as proof of prejudicial publicity. The newspaper article carried the headline “Bashor Charged with Deliberate Homicide in Shooting.” The accompanying story read as follows:
Shades of the old west were re-enacted at Bert’s Bar in Kevin early Saturday morning, when a bar patron was shot down and killed, at about 1:15.
According to reports, James F. Hurley, 41, was inside the bar when Howard ‘Ozzie’ Bashor 56, drove up and sent word inside for Hurley to come outside. Hurley walked outside and was shot down.
In the radio broadcast, the reporter stated that Hurley “was apparently shot as he was leaving a Kevin tavern.” State v. Bashor, 614 P.2d at 474-75. These stories were reported shortly after the homicide six months before trial.
As evidence of community bias against him, Bashor points to threats against his caretaker, his brother, and the justice of the peace who considered his bail motion. Most of these threats were made anonymously over the telephone by bar patrons. State v. Bashor, 614 P.2d at 475.
The fact that there was extensive knowledge in the community of the crime and the defendant is not sufficient to render the trial presumptively unfair. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977) (“under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair.”)
Where a claim is made that a person has been denied due process as the result of the denial of a change of venue, we must look to the voir dire examination to determine if there is any evidence that there was “such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975).
The right to an impartial jury does not mean that the jury must be ignorant of the subject matter involved. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based ■ on the evidence presented in court.” Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642.
Our review of the record in Bashor’s state court proceedings discloses that approximately one third of those questioned expressed some preconception of guilt, ranging from a vague notion to certainty. Out of 60 prospective jurors and alternate jurors, 29 were excused for cause. The 29 excused included: six who were excused because they suffered from poor health or economic hardship, three who were excused because they were related to the victim or the defendant, two who were excused because they expressed a bias in favor of the defendant, and five who were excused by stipulation or without objection by counsel with no indication in the record of the reason. Thus, there were 13 jurors who were excused because they expressed some bias against the defendant.2 None of those selected for the jury stated that they had formed an opinion of guilt or innocence. Most of the prospective jurors did not know about or had forgotten the pretrial publicity that Bashor contends was prejudicial. New remembered more than the fact of a shooting. None of the jurors selected expressed any prejudice based on the pretrial publicity. All stated that they could be fair and impartial.
Prior to the voir dire examination, a trial judge can only speculate about the reasonable likelihood that prejudicial publicity and incidents reflecting bias against a defendant will deny him a fair trial. After the jurors have been examined, the trial judge can made an informed decision. The voir dire also provides the reviewing court [1236]*1236with a record containing the sworn testimony of persons from the community. This record enables the reviewing court to determine whether a jury of fair and impartial jurors can be selected from that community. We conclude, after a careful review of this record, that notwithstanding the news accounts and the anonymous threats, the jury selection process resulted in the selection of jurors free from prejudice against Bashor.
b. Failure to Exclude Juror Pettigrew
Bashor argues that he was denied due process because his challenge of juror Eileen Pettigrew for cause was denied. During voir dire examination it was revealed that Donna Hurley, the victim’s daughter, had been a pupil in a dance class taught by the juror. Mrs. Pettigrew stated that she did not know the victim. She stated she felt sympathy for the child because she had lost her father.
In response to defense counsel’s questioning, Mrs. Pettigrew stated that she could not give her positive assurance that she could give Bashor a fair trial.3 In response to the prosecutor’s questioning, she stated that she could render a fair and impartial verdict based on the evidence.4 The court then asked her to explain her answers:
[1237]*1237Q. You said previously to Mr. Conner that you didn’t think you could be a fair juror. Explain what you mean or what your thoughts are on that, and just why you think this.
A. Okay. Mr. Kalbfleisch, when he asked me, was asking if I could do this on the facts, you know, of the case, and I really think I can. The other lawyer was questioning on my emotions, and those are two different things.
Q. Undoubtedly you will be instructed that if you were to serve as a juror in this case the case must be decided upon the evidence presented in the courtroom
A. Yes.
Q. ... and that you are not to decide this case on sympathy, conjecture, or any other thing. Now would you be able to follow an instruction of that nature? A. Yes, I really think I could because even though I would feel sympathy or emotion my conscience would not let me. I would still have to be fair when it came to choosing.
Q. You think you could be a fair juror? A. Yes, I think I could.
Q. I gather what you are saying is that you are a compassionate person, but a fair person also?
A. Yes.
Based on the totality of the juror’s responses, the Montana trial judge concluded that Mrs. Pettigrew could be a fair and impartial juror. Our independent review of the record leads us to the same conclusion. Mrs. Pettigrew's responses reflect the thinking processes of a compassionate and conscientious juror who was completely honest about her feelings and her thoughts. She demonstrated that she had the capacity to recognize her commendable sympathy for an orphaned child and her responsibility to set those emotions aside and to decide the case on the evidence presented at trial. When her duties as a juror were made clear to her, she assured the trial judge she could be a fair juror and decide the case on the proved facts. We cannot expect more from any juror.
At Bashor’s request, the Montana court read the following instruction to the jury primarily to remind Mrs. Pettigrew of her responsibility as a juror:
You are instructed that a juror must not allow his previous opinion or impressions to have the slightest influence, or to. affect, impair, or destroy a reasonable doubt which he otherwise would entertain upon the evidence.
We are satisfied that the court did not err in denying the challenge for cause directed at Mrs. Pettigrew.
c. The Courtroom Disturbance
Bashor also contends that a courtroom outburst during his testimony at trial indicates that the trial was conducted in a hostile atmosphere. As noted above, Bashor failed to allege facts to show the nature of the disturbance in the courtroom. Nevertheless, even assuming that the interruption of the court’s proceedings was the result of hostility directed to Bashor, the record shows that the trial judge quickly and properly controlled the spectators. No further disruption occurred. Thus, the court’s prompt admonition effectively prevented any additional untoward conduct. See Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 1519, 16 L.Ed.2d 600 [1238]*1238(1966) (judge should have controlled carnival atmosphere at trial).
Our reading of the record shows that the trial judge was careful to prevent prejudiced jurors from being impaneled. The potential jurors were questioned individually about their possible bias. The judge allowed extensive questioning by counsel and took an active role to satisfy himself that the jurors would be impartial. His instructions informed the jury of its duty. The requirements of due process were met. Since an impartial jury was impaneled, the requested change of venue was not constitutionally required.
4. Polygraph Examination
Bashor contends that the results of a polygraph examination taken by William Schaeffer, a witness who was with Bashor the night of the shooting, should have been admitted at trial. The trial judge ruled that the results of a polygraph examination were inadmissible as a matter of law.
Traditionally, rules of evidence and procedure are matters of state law. We review a state’s rules only to determine that the defendant’s due process rights were not violated. As the Supreme Court uses a balancing test to determine when state rulings are unconstitutional, we, too, balance the state’s interest in reliable and efficient trials against the defendant’s right to present a defense. Perry v. Rushen, 713 F.2d 1447 at 1449-52 (9th Cir.1983).
The Supreme Court of Montana excludes polygraph testimony on the basis that (1) it lacks reliability and (2) it invades the province of the jury when it merely serves to support the credibility of a witness. State v. Beachman, 616 P.2d 337, 339 (Mont.1980). The evidence that Bashor wanted to introduce served only to show that the witness Schaeffer believed that Hurley had been the aggressor. State v. Bashor, 614 P.2d at 478-79 (the record of the questions and answers asked at the polygraph examination). Although the results of the polygraph examination may have corroborated Bashor’s self-defense theory, Schaeffer’s testimony offered relatively weak support. Schaeffer testified at trial that he never saw the gun and that he had jumped out of the car before Bashor pulled out the gun. The jury heard Schaeffer's testimony and determined his credibility from his demeanor as a witness. Exclusion of the polygraph evidence did not result in an unfair trial.
5. Prior Acts and Threats
Bashor contends that the admission into evidence of threats made by him to Irgens and of his surveillance of Irgens violated his constitutional rights because the evidence was prejudicial and irrelevant.
As we noted above, rules of evidence are generally matters of state law. Perry v. Rushen, 713 F.2d 1447 at 1449 (9th Cir. 1983). We agree with the Supreme Court of Montana that this evidence of Bashor’s relationship with Irgens was relevant and necessary to prove Bashor’s state of mind. 614 P.2d at 482-83. Although this testimony was unfavorable to Bashor, its admission into evidence was not unfair or violative of due process.
6. Sufficiency of the Evidence
Bashor contends that the evidence presented to the jury was insufficient to support the verdict of guilty of deliberate homicide. In particular, he challenges the sufficiency of the proof of the element of intent. To return a verdict of guilty of deliberate homicide in Montana, the jury must find beyond a reasonable doubt that the defendant “purposely or knowingly” caused the death of another human being. Mont.Code Ann. § 45-5-102(a). Under Montana law, the term “purposely” describes a conscious object to engage in conduct or cause a result. Mont.Code Ann. § 45-2-101(58). A person acts “knowingly” when he or she is aware of his or her conduct or aware that a certain result of his or her conduct is highly probable. Mont.Code Ann. § 45-2-101(33).
The critical inquiry in a federal habeas corpus review of the sufficiency of the evidence to support a criminal convic[1239]*1239tion is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Viewing the record in the light most favorable to the state, there was sufficient evidence presented from which an inference could be drawn of an intent purposely and knowingly to cause the death of a human being: (1) Bashor followed and harassed Irgens and Hurley, (2) Bashor waited outside Bert’s Bar knowing Hurley was there, (3) Bashor beckoned Hurley to come to the car, (4) Bashor carried a loaded gun in his vehicle. Based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that Bashor held the requisite intent for deliberate homicide.
7. Self-Defense Instructions
Bashor contends that the trial court denied him due process by inadequately instructing the jury on self-defense.
In considering a habeas corpus petition which seeks reversal of a state court conviction, a federal court does not review jury instructions in isolation but in the context of the overall charge to the jury as a component of the entire trial process. The contested instructions cannot be merely “undesirable, erroneous, or even ‘universally condemned,’ ” but must violate the defendant’s due process rights guaranteed by the Fourteenth Amendment. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
Bashor asked for several instructions (forcible felony, defense of an occupied structure, serious bodily injury) that were not relevant to Bashor’s trial. See State v. Bashor, 614 P.2d at 484-85 (no forcible felony here, no occupied structure, no aggravated assault). Bashor also requested a definition of serious bodily harm. Under Montana law, however, the jury decides what constitutes serious bodily harm. 614 P.2d at 484. At trial Bashor presented evidence to support his theory that Hurley’s actions threatened serious harm to Bashor’s eyesight. It was the jury’s task to determine whether serious bodily harm was threatened. Denial of these instructions does not warrant federal relief.
The instructions given on the law of self-defense in Montana used phrases that in isolation appear to be erroneous. Instructions No. 24 and 28 refer to an “urgent” danger and an “absolutely necessary” killing. 614 P.2d at 485-86 (text of instructions). Instruction No. 26 refers to “necessary self-defense.” 614 P.2d at 486 (text of instruction). Nevertheless, read in context, these instructions, together with Instruction No. 22, which was virtually identical to the Montana self-defense statute,5 fairly instructed the jury on the law of self-defense.
Bashor contends that there was no factual basis for the giving of an instruction that defines “an aggressor.” 614 P.2d at 486 (text of Instruction No. 27). Even though Bashor challenges the truth of the matter, the record does contain testimony of prior acts of hostility towards Hurley and actions designed to attract the victim's attention just before the shooting. This testimony justified giving this instruction. [1240]*1240See State v. Bashor, 614 P.2d at 486. The jury instructions, viewed as a whole in the context of the trial process, did not violate Bashor’s due process rights.
8. Lesser Included Offenses Instructions
Bashor contends that he had a constitutional right to have the jury instructed on lesser included offenses. The Supreme Court of Montana considers negligent homicide and mitigated deliberate homicide to be lesser included offenses of deliberate homicide. 614 P.2d at 487.
“Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.” James v. Reese, 546 F.2d 325, 327 (9th Cir.1976). This general statement may not apply to every habeas corpus review, because the criminal defendant is also entitled to adequate instructions on his or her theory of defense. United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir.) (reh’g and reh’g en banc denied, appeal amended), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425, cert. denied, 454 U.S. 828, 102 S.Ct. 121, 70 L.Ed.2d 104 (1981) (“jury must be instructed as to the defense theory of the case”). See also Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973) (Court has never explicitly held that due process gives federal defendant right to lesser included offense instruction, but a statute precluding such an instruction would raise a difficult constitutional issue). Even assuming that the failure to give a lesser included offense instruction could violate a criminal defendant’s constitutional rights, we are not faced with such a situation here. Bashor not only did not request instructions on lesser included offenses, but his counsel objected to the mitigated deliberate homicide instruction, choosing to base the defense on the theory that Bashor was either guilty or not guilty of deliberate homicide. There was no fundamental unfairness in the trial court’s failure to instruct the jury on lesser included offenses under these circumstances.
9. Closing Argument
Bashor contends that remarks made by the prosecutor in his closing argument were so prejudicial that Bashor was denied a fair trial. The prosecutor told the jury that Schaeffer came to town knowing that he and Bashor would fight Hurley. Bashor claims that the prosecutor knew that these statements were untrue and unfairly took advantage of the fact that the results of the polygraph examination were excluded by the court.
The prosecutor’s comments are evaluated in the light of the evidence as a whole. Carothers v. Rhay, 594 F.2d 225, 230 (9th Cir.1979). Schaeffer testified at trial to what he knew of the events. There was sufficient evidence to support the prosecutor’s version of the events that led up to the homicide. The polygraph results were not admitted because they were untrustworthy. They had no probative value. Under these circumstances, the remarks of the prosecutor did not impair Bashor’s right to a fair trial.
10. Adequacy of Counsel
Bashor contends that he was denied effective assistance of counsel because: (1) counsel failed to elicit exculpatory testimony; (2) counsel improperly objected to the instruction on mitigated deliberate homicide and failed to offer an instruction on negligent homicide; and (3) counsel failed to object to inadmissible testimony.
To obtain relief on a habeas corpus review, the petitioner must (1) show that his or her counsel made errors that a “reasonably competent attorney acting as a diligent conscientious advocate would not have made,” and (2) demonstrate prejudice. Hines v. Enomoto, 658 F.2d 667, 674-75 (9th Cir.1981) (reh’g and reh’g en banc denied) (citing Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc) cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979)).
[1241]*1241Bashor contends that defense counsel should have shown that he and Irgens were on friendly terms just before the shooting, that he carried a gun in his car to shoot predators on his farm, that he felt no remorse for Hurley’s death because he felt no criminal responsibility, and that Enneberg had stated that Schaeffer had been shouting outside Bashor’s vehicle but changed his story prior to trial. The record discloses that evidence was presented on each of these points. Irgen’s mother, Josephine Shay, testified that Bashor thought well of Irgens and would always stand by her. Bashor testified that the gun was in the car most of the time and that he used it to hunt gophers. Bashor also testified on cross-examination that he did not have much remorse over the death because he was trying to protect himself. Duane Enneberg testified that he never heard any shouting, that Irgens never told him that she heard any shouting, and that he did not go over to Bashor's vehicle because of any shouting.
It is true that counsel did not offer a negligent homicide instruction and that he objected to the mitigated deliberate homicide instruction. The record discloses that counsel did so not out of ignorance of the law but as the result of a tactical decision that the jury should be forced to the choice of finding Bashor guilty of deliberate homicide or acquitting him outright. With the benefit of hindsight we know that this strategy was incorrect; however, it did not constitute ineffective assistance of counsel. United States v. Stern, 519 F.2d 521, 524-25 (9th Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975), (reasoned tactical decisions are not faulted, even if in retrospect better tactics were available).
Bashor also argues that his counsel should have objected to Irgen’s testimony about Bashor’s threats to her. The trial court had earlier granted Bashor’s motion in limine, ruling this testimony inadmissible. The petition does not set forth facts which would permit us to conclude that the failure to object was not a tactical decision on counsel’s part to avoid the appearance that Bashor was trying to conceal the truth. We are satisfied beyond a reasonable doubt that Bashor was not denied effective assistance of counsel.
CONCLUSION
We have made an independent review of the entire record in search of constitutional error. We have concluded that Bashor’s constitutional rights were not violated. The District Court correctly denied Bashor’s petition for a writ of habeas corpus. AFFIRMED.