(concurring specially).
[¶ 23.] I agree with the majority that when a habeas corpus applicant is statutorily entitled to mandatory appointment of counsel, the appointment implicitly includes the right to effective assistance of counsel. To the extent that my concurrence in Krebs can be understood to say the opposite, then I must regretfully confess my oversight. Like so many judges have said in the past in acknowledging a mistake, all I can say is that having now realized it, I choose not to remain in error.
[¶24.] Although the Strickland standard was created in the Sixth Amendment context, it can adequately serve as a benchmark where the right to counsel is mandated by statute. Strickland provides a rational and practical method for reviewing the performance of habeas counsel. I see no reason to create some new standard to evaluate claims of “statutorily ineffective assistance” as opposed to claims of “constitutionally ineffective assistance.” Strickland has been employed in other types of civil proceedings to evaluate ineffective assistance claims. See e.g., Cogan v. KAL Leasing, Inc., 190 Ill.App.3d 145, 137 Ill.Dec. 396, 546 N.E.2d 20, 25 (1989).
[¶ 25.] Why a right to effective assistance of counsel in habeas proceedings? Perhaps the most important reason is that the Legislature provided a statutory right to counsel for indigent applicants in SDCL 21-27-4. Several courts have held that there is an independent right to effective assistance of counsel in post-conviction proceedings if appointment of counsel is mandated by statute. See e.g., Bejarano v. Warden 112 Nev. 1466, 929 P.2d 922, 925 (1996); McKague v. Warden, 112 Nev. 159, 912 P.2d 255, 258 n.5 (1996) (citations omitted). Cf. Follinus v. State, 127 Idaho 897, 908 P.2d 590, 595-96 (Idaho App.1995)(because Idaho law no longer mandates appointment of post-conviction counsel, there can be no statutory right to effective counsel).
[¶ 26.] I recognize the difficulty presented when habeas counsel must meet the same competency standards as trial counsel: claims of ineffective assistance in earlier proceedings might be raised repeatedly. This problem is mitigated, however, because Krebs still stands for the proposition that ineffective assistance of counsel at a prior habeas proceeding is not by itself grounds for relief in a later habeas proceeding. Incompetence in a habeas case cannot make the original conviction invalid. The habeas remedy is addressed solely to the original conviction. Any new efforts must be directed to error in the criminal trial or plea of guilty. Because a habeas petition challenges the validity of the conviction, the ineffectiveness of habe-as counsel is only germane to the extent that habeas counsel may have failed to elicit the original invalidity.
[¶ 27.] There is one other reason why, when the statute mandates the appointment of habeas counsel, we must require the attorney to be effective. If the defense attorney was ineffective in the original criminal proceeding and habeas counsel was thereafter ineffective in ferreting out the invalidity of the conviction, we may never know if the convicted person had a *25fair trial or, God forbid, was actually innocent. Our criminal justice system has little value if it cannot differentiate the guilty from the innocent with a high degree of certainty. Successive incompetence can create disaster. We need only consider the recent revelations in Illinois to show how disastrous it can be: half the persons on death row were later proven innocent. I am confident that South Dakota will have no repetition of what happened there. We have a long and honorable tradition of appointing only the most capable and experienced lawyers to represent criminal defendants in capital and other serious cases. We should encourage that tradition.