(dissenting).
[¶ 8.] The Court ascertains the only issue in this “third habeas is ineffective assistance of his second habeas counsel.” A habeas corpus proceeding is a civil action which exists solely under statutes passed by our legislature. Based on my dissent in Jackson v. Weber, 2001 SD 30, 2001 SD 136, 637 N.W.2d 19, I would affirm the trial court herein. There is no statutory basis, decades after the fact, to retroactively incorporate the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard into our ha-beas corpus statutes. Jackson, 2001 SD 30, ¶ 29, 637 N.W.2d at 25-26 (citing Krebs v. Weber, 2000 SD 40, ¶ 7-9, 608 N.W.2d 322, 324-5).
[¶ 9.] The South Dakota habeas corpus remedy extends only as far as the language used by our legislature allows. Co-well v. Leapley, 458 N.W.2d 514, 517 (S.D. 1990). SDCL 21-27-4 requires the appointment of counsel for indigent persons seeking habeas relief.2 Under SDCL 23A-40-1 to -20, counties are required to provide counsel to indigent defendants by establishing a public defenders office, maintaining a systematic court appointed process using licensed attorneys, or contracting for such services with attorneys licensed to practice law in South Dakota.3
[¶ 10.] The majority of states that provide court appointed counsel for indigent *671defendants on habeas review have held that Strickland standards do not apply to counsel on habeas. For example, Texas courts have held that competency is judged by the statutory standards within the habeas and criminal statutory schemes, rather than by the higher standard required for trial and appellate counsel under Strickland. Ex parte Graves, 70 S.W.3d 103, 114 (Tex.Crim.App.2002). The Texas habeas statutory scheme requires the appointment of “competent counsel” for defendants in death penalty cases. Tex Crim Proc Code Ann 11.071 § 2(a) (2004). However, Texas courts have defined the term “competent” from within the statutory scheme itself, rather than grafting on the Strickland requirements. Graves, 70 S.W.3d at 114. That court held that the statutory scheme requires competency at the time of appointment and throughout the representation as judged by the counsel’s qualifications, experience and abilities. Id. That court held that if it grafted the Strickland standard onto the Texas habeas corpus scheme, it would be overriding the clear and unambiguous language of the legislature, and guaranteeing an endless and repetitious supply of resurrected writs that had previously been denied. Id. at 115. See also Baum v. State, 533 N.E.2d 1200, 1201 (In. 1989) (adopting the standard that if counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court, nothing requires judging his performance by the rigorous standard set forth in Strickland).
[¶ 11.] We now find ourselves among only a handful of states that apply Strickland standards to the performance of counsel in habeas review, three of which have found some textual justification within their respective statutory schemes or constitutions. See Grinols v. State, 10 P.3d 600, 604 (Alaska Ct.App.2000); In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 748 (Ca.1993); Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955, 957 (Id.1981). The remaining few, including South Dakota, rely on the “matter of common sense” approach without regard to their respective statutory schemes, or merely graft on the Strickland standard in the interest of justice. State v. Rue, 175 N.J. 1, 811 A.2d 425 (N.J.2002); Commonwealth v. Priovolos, 552 Pa. 364, 715 A.2d 420 (1998); State v. Flansburg, 345 Md. 694, 694 A.2d 462 (1997); Dunbar v. State, 515 N.W.2d 12 (IA1994); Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992).
[¶ 12.] The legislature has clearly stated that admission to the South Dakota bar is what is required for competency on ha-beas review. The legislature obviously intended that the competency of habeas counsel be established at the appointment stage, rather than examining counsel’s final product of representation after the fact. It is not the role of this Court to supplant its own definition of competency in light of the plain and unambiguous language in SDCL 23A-40-7.
. SDCL 21-27-4 provides:
If a person has been committed, detained, imprisoned, or restrained of his liberty, under any color or pretense whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court. Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ.
. SDCL 23A-40-7 provides in relevant part:
The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in § 23A-40-6. They shall provide this representation by any or all of the following:
(1) Establishing and maintaining an office of a public defender;
(2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or
(3) Contracting with any attorney licensed to practice law in this state.
*671in those counties which have established an office of public defender, any proceedings after judgment may be assigned to the public defender.