dissenting:
With all respect, I am unable to concur in the majority opinion and judgment. My disagreement is both procedural and substantive.
I
The procedural issue involves application of Congress’s language in AEDPA prohibiting the granting of a writ of habe-as corpus unless the state court adjudication
(1) 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; ...
28 U.S.C. § 2254(d)(1).
The majority opinion adheres to a dichotomy of review under this provision, which is set forth in a footnote in Moore v. Calderon, 108 F.3d 261, 265 n. 3 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997). Under that formulation, “the ‘contrary to’ language governs questions of law, and the ‘unreasonable application of language governs mixed questions of law and fact.” Id. This formulation, however, was described as “dicta” in Davis v. Kramer, 167 F.3d 494, 500 n. 7 (9th Cir.1999), pet. for cert. filed, — U.S. -, 120 S.Ct. 1001, — L.Ed.2d - (2000), and the dichotomy was disavowed. Davis stated:
The terms overlap, and cases may fall into one or both classifications, depending on the circumstances. No purpose would be served by attempting to establish a fixed division or to give meaning *1143to one that would exclude the other. Their purpose is the same: to ensure the objective that state courts follow controlling Supreme Court law.
Id. at 500 (footnote omitted). Davis now stands as the law of this circuit; I therefore consider myself bound by its conclusion that the Moore reference was dictum and that no firm dichotomy is to be applied in reviewing state decisions under AED-PA. I am equally bound by our subsequent case that accepted Davis’s approach. See Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir.1999) (on rehearing).
If, contrary to my understanding, the statements in Davis and Furman may be viewed as dicta like that in Moore, and thus do not bind me, then I would elect to follow the Davis approach.1 Section 2254(d)(1) does not set up separate categories of review to which each of its clauses applies; it says nothing about “questions of law” or “mixed questions of law and fact.” I see no good reason to limit the application of either statutory clause to a specific type of issue. The First and Fourth Circuits are of the same view, and have rejected the dichotomy. See O’Brien v. Dubois, 145 F.3d 16, 22 (1st Cir.1998); Green v. French, 143 F.3d 865, 870 (4th Cir.1998), cert. denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999); see also Matteo v. Superintendent, 171 F.3d 877, 887-89 (3d Cir.) (en banc), cert. denied, — U.S. -, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999).2
On the other hand, if the majority is correct in viewing Moore’s adoption of the dichotomous approach as holding, then the adoption of the contrary approach in Davis and its progeny is equally so. In that case, we are not free simply to disregard Davis and apply Moore; we are bound to review the case en banc and adopt one or the other approach as that of our court. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir.1987) (en banc) (“We now hold that the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision. A panel faced with such a conflict must call for en banc review....”). Particularly is this so when one of our later decisions has adopted the Davis approach.3 See Furman, 190 F.3d at 10044 I therefore am unable to join the majority in its rejection of Davis.
II
On the merits, I view the state court decision as either contrary to, or an unreasonable application of, Supreme Court law, or both, as that law is set forth in Johnson *1144v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To illustrate why, I set forth the pertinent facts from the state court proceedings.
At Baker’s arraignment, the state judge announced to several defendants a list of rights they enjoyed. No mention was made of the right to counsel. Baker then was asked to plead, and he pleaded guilty to driving without a valid license, but not guilty of driving while intoxicated and obstructing an officer. He stated that he would like a jury. The following exchange is the entire discussion of counsel:
Judge: And what do you anticipate doing with regard to counsel?
Baker: I’ll get a lawyer.
Judge: Ok.
Baker: If not, I’ll defend myself.
The arraignment ended. As the majority indicates, Baker was not prejudiced directly at the arraignment, because he pleaded guilty only to a charge that he has never contested. The total lack of advice regarding a right to counsel had a continuing effect, however, for it was never properly remedied prior to or during trial.
At Baker’s pretrial hearing, Baker made clear that he was without funds, but he was not adequately advised of his right to appointed counsel. Here is the entire exchange at that hearing:
Judge: Okay, Mr. Baker, I take it that nothing has been resolved here. I again would advise you that you have very serious charges and you’re ill advised to try to represent yourself on them and that you’re certainly not equipped to properly handle the jury trial on these charges, you would not know the proper objections to make or how to preserve the record for any appeal and I’m urging you to hire an attorney to represent you in this matter.
Baker: I wish I could, if I had the money.
Judge: Well, the money of being convicted when, perhaps you wouldn’t be convicted, or not knowing your options, um, could cost you a heck of a lot more than an attorney costs you, so my advice to you is to hire an attorney. You’re not equipped to handle a jury trial. You can do it if you choose, but I’m just telling you that’s [sic] it’s not a very smart move for you to make.
Baker: I know. If you want to appoint me a public defender.5
Judge: Pound wise and penny poor, or however that goes, the other way around.
Prosecutor: I don’t know—
Baker: Yeah, well,—
Judge: You’re better off to spend the money and cover yourself.
Baker: I don’t have the money to spend. Judge: Well, you’re entitled to a court appointed attorney if you qualify. If you don’t qualify, then you have money to spend.
Baker: Whatever it comes down to, I’ll be here in Court and I’ll, if I have to represent myself I guess I’ll have to do it.
This colloquy was succeeded by a discussion of the fact that Baker lacked funds to pay the $150 fine imposed on the count to which he pleaded guilty; the judge advised Baker to see the clerk and set up a payment schedule.
The trial date arrived, and Baker, not surprisingly, had secured no counsel. At the inception of trial, the following exchange occurred:
Judge: I just want to confirm on the record that you have previously been advised of your right to counsel. Is that correct?
Baker: Yes.
*1145Judge: And you understand those rights at this time?
Baker: Yes.
Judge: And at this time it’s your own election to appear without a counsel, is that correct?
Baker: Yes.
The trial then commenced.
Apparently, Baker did approach the court clerk at one time and sought to have an attorney appointed. There were conflicting assertions concerning whether he was told he was unqualified, was told he was too late, or was given forms. The majority opinion states that the debate over whether Baker was properly informed is academic because the district court found that “Baker did not qualify for court-appointed counsel at the time of his trial.” That finding, however, is not a factual finding that Baker had sufficient resources to hire counsel. The magistrate judge had stated that it was “uncontested that Petitioner was indigent at the time of his trial.” The district court said that the magistrate judge had erred because the respondents “assert that Baker did not receive a court-appointed attorney because he never followed up on the required paper work.” The district court, however, never resolved the factual dispute; it held no evidentiary hearing and the record fails to establish why an attorney was not appointed. As the magistrate judge explained: “it is unclear whether the trial court knew that Petitioner was indigent because the trial court never asked Petitioner about his financial status and the court encouraged Petitioner to hire an attorney, although Petitioner told the trial court that he needed to pay a $150 fine on installments.”
As the magistrate judge recognized, however, the important point is that the deficiencies in the trial court’s performance meant that Baker’s court proceedings did not meet the standards set by the Supreme Court for advice to the right of counsel and knowing and intelligent waiver of counsel.
“If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” Johnson v. Zerbst, 304 U.S. at 468, 58 S.Ct. 1019. The transcripts quoted above indicate that, at the very least, Baker was uncertain about his right to secure appointed counsel. He appeared to accept the fact that, because he did not have money, he would have to represent himself. The judge did not clearly and unequivocally advise him to the contrary, as he had a duty to do.
To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offense included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is rendered.
Von Moltke, 332 U.S. at 723-24, 68 S.Ct. 316. Certainly the trial judge’s perfunctory questions seeking an assurance from Baker that he had been advised of his right to counsel do not begin to meet this standard. There was never a “penetrating and comprehensive examination” of the circumstances of Baker’s waiver of counsel; there was virtually no examination at all.
*1146Baker ended up representing himself, as was his right under Faretta. But his waiver of the right to counsel and his election to represent himself had to be made “ ‘knowingly and intelligently.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting Johnson, 304 U.S. at 464-65, 58 S.Ct. 1019). Baker’s election to represent himself, if election it was, was certainly not the “voluntary exercise of his informed free will.” Id. at 835, 95 S.Ct. 2525. Baker made it distressingly clear that he was going to represent himself because he had no funds. His right to appointed counsel was never adequately explained to him. Baker’s trial simply did not meet the standards for waiver of counsel established by the Supreme Court. I would therefore reverse the district court’s judgment and remand with instructions to issue the writ.
. One reason that it is somewhat difficult to tell whether the adoption of one or the other approach constitutes dictum is that, like so many applications of a standard of review, it frequently makes no difference at all in the outcome of the case. That may well be the case here, and for that reason I raise the issue with some reluctance. It is, however, a threshold question affecting the discussion of the merits, and the majority opinion squarely adopts the dichotomy and applies one of its branches to the exclusion of the other. I therefore feel compelled to address the matter.
. Other circuits earlier adopted the dichotomy. See Neelley v. Nagle, 138 F.3d 917, 924 (11th Cir.1998); Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). The First Circuit discusses at length its reasons for not accepting their position. See O’Brien, 145 F.3d at 22-23.
. The majority opinion, in its footnote 2, states that en banc review is not necessary when use of either standard would not affect the outcome of the case. It cites Wilson v. Henry, 185 F.3d 986, 988 (9th Cir.1999) in support. But Wilson found it unnecessary to choose sides in the conflict in order to decide the case before it. The majority here does not take that approach, but instead adopts Moore 's dichotomy and rejects the later, conflicting holding in Davis. That the majority may not do.
. The majority opinion, in its footnote 2, incorrectly surmises the reason that I saw no need for en banc review when I joined in amending Furman v. Wood to accord with Davis v. Kramer. I saw no need for en banc review because, as I explain at the beginning of this dissent, I consider Davis to have established that the language of Moore v. Calderon setting out the dichotomous approach was dictum.
. The underlined phrase was not in the state transcript; it was replaced by "unintelligible.” The magistrate judge found, however, that the tape of the proceedings demonstrates that Baker made the reference to appointed counsel. The district court did not take issue with that finding.