dissenting:
Respectfully, I dissent.
This is an appeal from an order of the district court granting Joseph Lischko’s petition for post-conviction relief and ordering a new trial.
Lischko was tried before a jury and convicted of first-degree kidnapping. He was sentenced to serve 20 years in the Nevada State Prison. At the time of his arrest, Lischko secured private counsel, who represented him throughout his trial. Lischko did not take the stand, nor were any witnesses called in his behalf. His conviction was appealed by court-appointed counsel. This court affirmed, rejecting the issues upon which the direct appeal was then predicated. Lischko v. State, 87 Nev. 493, 489 P.2d 89 (1971).
On July 20, 1972, Lischko, through his present counsel, filed a petition for post-conviction relief in the district court. He claimed that he was denied effective assistance of counsel during his jury trial, in derogation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution.
The petition was heard before the late Judge Emile Gezelin, who had presided at Lischko’s jury trial. Judge Gezelin, after conducting an extensive evidentiary hearing, held that the petition was meritorious and granted Lischko a new trial. He specifically found that Lischko’s trial counsel had failed to properly investigate certain alleged facts and circumstances which, because they would have gone to the impeachment of statements made by the prosecution’s witnesses, fatally impaired counsel’s ability to make informed decisions on behalf of his client. The judge carefully distinguished between those cases involving failure to make a careful inquiry in order to present an adequate defense, and those cases where counsel, having made such an inquiry, then made tactical or strategic errors in his handling of the case. Judge Gezelin did not consider the evidence presented to him at the post-conviction relief hearing in a vacuum, but rather against the background of the entire case. He presided over the trial resulting in the conviction of Lischko, and he thereafter determined, in light of all the facts *226before him, from his impressions at the trial, and from the evidence produced at the hearing, that Lischko’s basic rights had been violated.1
The majority would now substitute its opinion on a factual determination as to the effectiveness of counsel for that of the trial judge in his role as trier of fact. This court, in State v. Sorenson, 73 Nev. 218, 315 P.2d 508 (1957), cited and quoted with approval People v. Canfield, 173 Cal. 309, 159 P. 1046, 1047:
“. . . ‘It was for the judge of the trial court to say what had been the effect of the evidence upon the jury, and whether or not the defendant, in view of all the facts, had been given a fair trial. . . . The judge, who presided at the trial of the cause, who heard the testimony, who observed the jurors and had an opportunity also of testing the truth of the defendant’s statements by noticing his demeanor, was in a peculiarly favorable position for determining justly the question whether or not the defendant had been accorded a fair trial. . . . We can hardly manufacture in fancy an hypothetical situation in which a reviewing court would be justified in questioning the discretion of the trial court who should grant a new trial in a case involving a criminal charge. . . .’ ” (Emphasis added.) State v. Sorenson, supra, at 223-224. See also, State v. Varga, 66 Nev. 102, 124, 205 P.2d 803 (1949).
The views expressed in Sorenson parallel my position in this case. We know nothing regarding the ultimate merit of Lisch-ko’s story, but we do know that the trial judge, who presided at Lischko’s jury trial and who sentenced him to the state penitentiary, did conclude, after carefully considering Lischko’s petition and the evidence adduced at the hearing thereon, that justice demanded Lischko be given a new trial. In the conceded absence of any judicial irregularity, I would not interfere with that conclusion.
A review of the record below shows no abuse of discretion *227by the district judge, but, rather, substantial evidence to support his order. In my opinion, such an order should not be disturbed on appeal. Wallace v. State, 88 Nev. 549, 550, 501 P.2d 1036 (1972). I would affirm the order of the district court granting the petition for post-conviction relief and ordering a new trial.
Judge Gezelin ruled, inter alia, in his decision:
“It was the Judge of this court who presided at the original trial. The impressions received at .the original trial and which are now supplemented with the allegations of the petition, together with evidence presented at the evidentiary hearing[,] convince the Court that the matters complained of resulted from a failure on the part of counsel to adequately inquire and investigate facts and circumstances in order to be in a position to make informed decisions on behalf of his client. Counsel’s decisions based upon lack of information denied the petitioner the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.”