(dissenting).
[¶ 33.] I dissent.
[¶ 34.] This seems like a case of first impression — a habeas appeal where we are reviewing a decision by the circuit court that found ineffective assistance of counsel. The circuit court obviously gave this ease serious consideration. A review of the findings show the following:
17. Prior to trial, Mr. Wurm discussed with Siers using consent as a possible defense in light of the fact that Bradbury requested that her assailant perform oral sex upon her. Siers refused to allow Mr. Wurm to pursue this defense, as he adamantly maintained his innocence throughout the proceedings.
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24. Although Mr. Wurm utilized the services of a private investigator, he did not direct the investigator to help him find Joanna Siers or Forrest Bordeaux.
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42. Obviously, if Siers could put forth evidence showing he was somewhere other than with Bradbury on the night of the
*499rape this could establish that he was not the rapist.
43. Mr. Wurm does not remember speaking to either Joanna Siers or Forrest Bordeaux, and cannot state any tactical reason whatsoever why he failed to call Joanna to testify at trial.
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48. Mr. Wurm’s performance as defense counsel in failing to even speak with the “main” alibi witnesses, and his failure to investigate any line of defense related to what those witnesses may have said, even though the services of a court appointed investigator were obtained, approved, and authorized, was so deficient that Mr. Wurm was not functioning as counsel guaranteed by the Sixth Amendment of the U.S. Constitution, (emphasis added).
These findings are entitled to “ ‘considerable deference’ ” and “ ‘will not be set aside unless they are clearly erroneous.’” St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (citations omitted).
[¶ 35.] A review of this extensive record certainly supports these findings that Wurm’s performance did not measure up to the requirements mandated by the constitution. “Reasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories. Ah attorney must make a reasonable investigation in preparing a case or make a reasonable decision not to conduct a particular investigation.” Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.1993) (citing Kenley v. Armon-trout, 937 F.2d 1298, 1304 (8th Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991)). Wurm apparently was of the opinion that the alibi defense was viable. He made somewhat of an effort to contact the witnesses and subpoenaed them. Although the State says he went the extra mile and even got a private investigator appointed in this case, Wurm never even asked the private investigator to contact his client’s alibi witnesses. Furthermore, at the time of trial, there was not one witness or any shred of evidence presented by Wurm in his client’s defense. •
[¶ 36.] Under Strickland, the circuit court found Wurm’s representation amounted to ineffective assistance of counsel and that the result was not reliable. I agree. The circuit court put it well when it stated:
This Court takes note.that the granting of the writ of habeas corpus in this case is a very serious matter and not one to be considered -lightly or capriciously. However, this Court, after painstaking consideration of the facts finds that the dictates of the United States Constitution, the foundation upon which our legal system is bed-rocked, mandates that a writ of habeas corpus issue and that the Defendant be returned to Pennington County for a new trial.
Now this Court painstakingly struggles to find a reason to reverse a tough and correct decision by the circuit court. However, this record reveals an instance where Siers did not receive ; what the Constitution - affords him — “a fair trial, a trial whose result is reliable.” Loop v. Class, 1996 SD 107, ¶ 15, 554 N.W.2d 189, 192 (citing Hopfinger v. Leapley, 511 N.W.2d 845, 847 (S.D.1994) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693)).
[¶ 37.] I am authorized to state that Justice SABERS joins in this dissent.