DISSENT FROM DENIAL OF REHEARING EN BANC
Panel inappropriately hypothetically considered the law as misstated by the prosecutor under AEDPA deference, rather than considering the state court's judgment of the prejudice caused by the statement.
Dicta on questions that are germane to the case and resolved after reasoned determination in a published opinion are binding in the circuit. This has proved problematic and some have said that it's in tension with Article III.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf