(dissenting).
[¶ 13.] I disagree with the Court’s remedy that sets aside all statutory requirements of the Habeas Corpus Act and permits Haase to proceed with all substantive claims he asserts for habeas relief. Under Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19, Haase’s remedy is limited to pursuing an appeal of Habeas # 2 if he can establish ineffective assistance of counsel in that proceeding. However, Haase failed to establish entitlement to even that limited remedy because he failed to show prej*672udice4 from attorney Thompson’s failure to appeal (a showing that Haase would have succeeded on appeal of Habeas # 2). Because Haase failed to meet the requirements for habeas corpus relief, I would affirm the trial court’s judgment dismissing this proceeding (Habeas # 3).
I.
[¶ 14.] Initially, I part company with the Court’s decision to summarily remand and allow Haase to proceed with “all of [his] asserted grounds for habeas relief on their merits” simply because this Court believes that Haase is in “procedural purgatory.” Supra ¶ 5. By fashioning a remedy that allows Haase to “circumvent” all procedural requirements, the Court has judicially abrogated important statutory requirements of the Habeas Corpus Act.5 In my view, this disposition is unprecedented.6 It also provides Haase with a *673remedy that he acknowledges he is not entitled to.
[¶ 15.] Haase does not seek this remedy. In fact, he acknowledges that he may not ignore the procedural statutes in the Habeas Corpus Act. In his reply brief, Haase candidly concedes that his only remedy and the only thing he is seeking in this, his third successive habeas corpus action, is “the right, because of ineffective assistance of counsel, to seek appellate review of the adverse procedural ruling in Habeas # 2” (dismissed on the procedural grounds of “undue delay” and the failure to establish “cause and prejudice”). Haase further acknowledges that if the statutory, procedural barriers are left intact or are affirmed on appeal, it “will prevent [his] substantive claims (in Habeas # 1 and Ha-beas # 2 [and trial]) from ever being reached, by any court, anywhere.” Nevertheless, Haase concedes that he may not have what this Court has ordered: that is, the ability to skip all procedural requirements of the Habeas Corpus Act and proceed directly to the merits of any alleged error. He states:
Haase does not seek the right to have a new habeas trial court re-decide the same issues [that were considered in Habeas # 1 and # 2]. Rather, Haase has always recognized the obvious — those issues are dead in the water unless he can win the right to seek an appeal of that earlier loss [in Habeas # 2], That is the only remedy remaining for Haase.
Thus, as Haase himself concedes, should he prevail in this habeas proceeding, his sole remedy is the right to seek appellate review of Habeas # 2.
[¶ 16.] Haase’s concessions are in accord with this Court’s precedent. In Loop v. Solem, 398 N.W.2d 140, 143 (S.D.1986), this Court held that when the “claim is one of general, overall ineffectiveness that pervaded the entire appeal, the appropriate remedy would be to grant the defendant a new appeal.” (citation omitted). Because this is Haase’s sole remedy, I cannot agree with the Court’s overly broad disposition. We should not forget that under the Court’s newly announced remedy, any time a future habeas petitioner alleges “procedural purgatory,” he may now, in a second, third, or further successive petition, ignore all procedural statutes and proceed directly to the merits of any alleged error. This result cannot be reconciled with our duty to apply ■ statutory restrictions, whether procedural or substantive, that the Legislature has enacted for habeas corpus relief.
II.
[¶ 17.] In addition to my disagreement with the Court’s willingness to abrogate statutory requirements, I also believe that the trial court’s dismissal of this third ha-beas proceeding should be affirmed. Even assuming that Thompson’s failure to appeal Habeas # 2 constituted ineffective assistance of counsel, Haase failed to establish prejudice from that failure. As Judge Lieberman specifically noted, Haase did not demonstrate prejudice from Thompson’s representation in the second habeas action because Haase did not show that the appeal would have been successful.
*674[¶ 18.] Haase concedes that generally, prejudice is required to be shown. In Loop, this Court stated that “[b]efore a defendant succeeds on an ineffective assistance of counsel claim, he must normally fulfill the two-fold test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. at 142 (emphasis in original). That test requires a showing of both ineffective assistance of counsel and prejudice. Id.
[¶ 19.] The requirement of prejudice means that to prevail in this proceeding, Haase must normally establish that he would have succeeded at all previous habe-as proceedings, including the original trial. As this Court stated in Jackson, “ineffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action. Any new effort must eventually7 be directed to error in the original trial or plea of guilty.” 2001 SD 136,17, 637 N.W.2d at 23.
[¶ 20.] However, Haase relies on a Loop exception that applies in cases, like Habeas # 2, where there has been a failure to take an appeal. Loop recognized that a failure to appeal is an “[a]ctual or constructive denial of the assistance of counsel altogether [and] is legally presumed to result in prejudice.” 398 N.W.2d at 142. Consequently, if applicable, this presumption negates the need for a habeas corpus petitioner to make a preliminary showing that he was prejudiced as a result of his ineffective assistance of counsel. Id. Haase relies upon this exception, arguing that he was entitled to proceed through Habeas # 3 without the usual requirement of showing prejudice from the failure to appeal Habeas # 2.
[¶ 21.] However, Haase’s reliance upon the Loop exception is misplaced. Loop involved a failure to effectively prosecute a direct appeal following trial. Unlike Loop, this ease involves an attorney’s failure to appeal from a second successive collateral attack upon the original trial judgment. This distinction is important for two reasons. First, the scope of review is limited in habeas proceedings. “The scope of review is limited in a state habeas corpus proceeding because the remedy is in the nature of a collateral attack upon a final judgment.” Gregory v. Solem, 449 N.W.2d 827, 829 (S.D.1989) (citation omitted).
[¶ 22.] Second, it must be remembered that Loop expressly indicated that the presumed prejudice exception was only necessary in “certain” cases where the likelihood of prejudice was so high that inquiry into the issue of prejudice was not worth the cost. Loop, 398 N.W.2d at 142.
In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.... Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost.
Id. (citing Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696). However, successive habeas corpus actions are *675not the type of proceeding that warrant such a presumption of prejudice. They are not because habeas corpus is not a constitutional requirement. See Williams-Bey v. Trickey, 894 F.2d 314, 317 (8thCir.l990). More importantly, although it makes sense to afford a presumption of prejudice in failing to take a direct appeal, the need for such a presumption is significantly diminished when a habeas petitioner has already had the opportunity for judicial review at trial and on direct appeal. Finally, while the complete denial of counsel in a direct appeal makes prejudice “so likely that ease by case inquiry into prejudice is not worth the cost,” Loop, 398 N.W.2d at 142, that likelihood has certainly disappeared by the time a petitioner is prosecuting his third successive collateral attack. For example, in this case, three circuit judges and five Supreme Court Justices have reviewed this case on five prior occasions. Therefore, one cannot say that the presumption of prejudice remains so likely that a case by case review for prejudice is still not worth the cost. Rather, because this is Haase’s third successive collateral attack, the usual Strickland requirement of prejudice should be retained.
[¶ 23.] “On habeas review, the petitioner has the initial burden of proof.” Jackson, 2001 SD 136, ¶ 9, 637 N.W.2d at 22. Here, Judge Lieberman noted that Haase failed to meet his burden of showing of prejudice because he failed to establish that he would have succeeded had Attorney Thompson perfected an appeal in Ha-beas # 2. Because there is no dispute that Haase failed to meet that burden of establishing prejudice from the alleged ineffective assistance of counsel in Habeas #2, the trial court’s dismissal of Habeas # 3 should be affirmed.
. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Haase points out that this proceeding involves an ineffective assistance of counsel claim arising from the failure to appeal the judgment in Habeas # 2. He further points out that under Loop v. Solem, 398 N.W.2d 140, 142 (S.D.1986), the failure to appeal involves the type of error that does not normally require a showing of prejudice. Although Loop did eliminate that requirement in direct appeals from the underlying trial, this case involves a failure to appeal from a collateral attack; i.e., Haase’s second petition for habeas corpus. Under these circumstances, Loop did not eliminate Haase’s obligation to establish prejudice from the failure to appeal the judgment denying relief in Habeas # 2. Loop did not so hold, and prejudice remains a requirement in successive habeas corpus proceedings alleging ineffective assistance of counsel. See infra ¶ 22.
. The following statutes have been abrogated.
SDCL 21-27-3.2:
An application under this chapter may be dismissed if it appears that the state or the applicant’s custodian has been prejudiced in its ability to respond to the application by delay in its filing, unless the applicant shows that the application is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances causing the prejudice occurred. It shall be presumed that the state or the applicant’s custodian has been prejudiced if the application is filed more than five years after signing, attestation and filing of the judgment or order under which the applicant is held. This presumption is rebuttable pursuant to § 19-11-1.
SDCL 21-27-16.1:
All grounds for relief available to a petitioner under this chapter shall be raised in his original, supplemental or amended application. Any ground not raised, finally adjudicated or knowingly and understandingly waived in the proceedings resulting in his conviction or sentence or in any other proceeding that the applicant has taken to secure relief from his conviction, or sentence, may not be the basis for a subsequent application, unless the court finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original, supplemental, or amended application.
SDCL 21-27-5:
The court or judge to whom the application for a writ of habeas corpus is made, shall forthwith award the writ, unless it shall appear from the application itself or from any document annexed thereto, that the applicant can neither be discharged nor admitted to bail, nor in any other manner relieved.
.The Court’s only authority for its novel new procedure is People v. Gaines, 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868, 875 (1984). However, Gaines did not adopt such a rule. Gaines merely stated that if fundamental fairness requires, res judicata will not be used to bar litigation of claims on habeas review that could have been raised on direct appeal. However, such a rule is inapplicable in this jurisdiction because our Legislature, by the enactment of SDCL 21-27-16.1, has specifically required that the doctrine of res judicata be applied in habeas proceedings. See supra, n. 5.
*673More importantly, because Gaines only eliminated use of the doctrine of res judicata, Gaines is no authority for the proposition that all other procedural requirements of' the Ha-beas Corpus Act may be ignored. Thus, SDCL 21-27-3.2, requiring the dismissal of stale claims, would remain in effect even if the Gaines case were applied. Ultimately, the doctrine of res judicata is one thing, but sua sponte setting aside all other statutory requirements any time a court perceives them to be unfair is an abdication of our duty to apply legislative enactments. It also exceeds our limited constitutional authority to interpret legislative enactments in accordance with the Constitution.
. In his brief, and at oral argument, Haase has justified his decision to initially delay his showing of prejudice from Habeas # 1 and the trial on the ground that it would conserve judicial resources. Haase concedes that he may not even get to those proceedings until he establishes the right to appeal Habeas # 2. Considering the procedural posture of this case, I agree that it was appropriate to conserve judicial resources until the right to appeal Habeas # 2 was established in this proceeding. Therefore, while it was appropriate for Haase to withhold a showing of prejudice from Habeas # 1 and the trial in Habeas # 3, Haase was required to show, at the very least, that he was prejudiced in Habeas # 2 (the most recent proceeding in which he alleged he received ineffective assistance of counsel). See infra ¶ 22.