MEMORANDUM OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

KAREN E. SCHREIER, U.S. District Judge.

[¶ 1] Petitioner Anthony Siers filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 24, 1998. The case was referred to Magistrate Judge Marshall P. Young, who recommended that the writ be granted. Respondents filed objections to the magistrate judge's findings and the court ordered briefing by both parties.

[¶ 2] The court must make a de novo review "of those portions of the [Magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636 (b)(1)(C). See also Thomas v. Arn, 474 U.S. 140, 106 SCt 466, 88 L.Ed.2d 435 (1985). After careful review of the record, the court accepts the portions of the findings and recommendations of the magistrate judge that are consistent with this opinion and rejects the portions of the findings and recommendations that are inconsistent with this opinion.

[¶ 3] The issues are whether petitioner's constitutional right to the effective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668, 104 SCt 2052, 80 L.Ed.2d 674 (1984), was violated, and whether the judgment of the South Dakota Supreme Court in reversing the state habeas court's grant of habeas relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," within the meaning of 28 U.S.C. § 2254 (d)(1). For the reasons set forth below, the petition for Writ of Habeas Corpus is granted.

BACKGROUND

[¶ 4] On July 4, 1991, between 9 and 10 p.m., S.B. went to the Black Hills Heritage Festival to meet friends. Shortly after her arrival, S.B. was approached by a man, identifying himself as "Tony," who asked for a light for a cigarette. "Tony" continued to push his bicycle as he followed S.B. around the festival for over an hour while she searched for friends. When S.B. gave "Tony" a different name than she originally had, "Tony," who had previously identified himself as "Tony Siers," then indicated his name was "Tom Janis." S.B. was afraid "Tony" would follow her home, so she left the Festival and walked toward a friend's home. Her friend lived in Lakota Homes which is about sixteen blocks north of the Festival location. "Tony" continued to follow her, pushing his bicycle. On the way to Lakota Homes, S.B. and "Tony" stopped at a Mini Mart store. "Tony" went inside. S.B. initially waited for "Tony," and then decided to leave without him. She continued walking north and "Tony" soon caught up to her. "Tony" then persuaded S.B. to take a short cut through a field to her friend's home.

[¶ 5] S.B. claims that while they were walking across the field, "Tony" pushed her down, wrestled with her for approximately fifteen minutes, pinned her to the ground, attempted to choke her, and threatened to beat her if she did not quit screaming. S.B. testified that she was raped vaginally and orally, that she feared for her life, and that she attempted to calm "Tony" by submitting to him. "Tony" had trouble penetrating S.B., causing her intense pain. In an attempt to appease "Tony" and reduce her pain, S.B. asked him to perform oral sex. Trying to maintain "Tony's" trust, S.B. asked him to take her to his house on Silver Street.

[¶ 6] On the way to Silver Street, S.B. and "Tony" approached the Mini Mart again. S.B. told "Tony" she was going inside to purchase some lemonade. She entered the Mini Mart and asked the clerk if she could use the phone to place an emergency call. S.B. called a friend for a ride to the hospital. The convenience store clerk, Juanita Larvie, overheard S.B.'s conversation asking for a ride to the hospital. When S.B. told Larvie she had just been raped, Larvie convinced S.B. to call the police. S.B. told Larvie her social security number and to remember two names, "Tony Siers" and "Tom Janis." "Tony" left the Mini Mart while S.B. was inside.

[¶ 7] When the police came, S.B. led them to the field where the rape occurred. S.B. described her assailant as a male who was a few inches taller than she with sandy brown hair. S.B. was then taken to the hospital where a rape examination was performed, revealing injuries to S.B.'s chest, back, vaginal lining, and hymen. Medical personnel found no semen.

[¶ 8] A detective searched for petitioner at his mother's home. Petitioner's mother lived on Silver Street. Petitioner had been living with his mother part time and his sister, Joanna Siers, part time. When petitioner was eventually located at his mother's home, he was cooperative but denied knowing or seeing S.B., much less raping her. Petitioner told the detective he had been at the powwow that was held near the Festival on July 4, but did not tell the detective he was at Joanna's apartment with her and her boyfriend, Forest Bordeaux, at the time of the rape. Petitioner told his attorney that he arrived at Joanna's apartment around 10:30 p.m. and waited in the hallway until Joanna and Forest Bordeaux arrived shortly after 10:30 p.m. Joanna and Bordeaux claim they watched television with petitioner for an hour together, then went to bed, and that petitioner was asleep in the bedroom the next morning.

[¶ 9] S.B. testified at trial that she was around the assailant for two to three hours before the rape occurred that evening. The time of the rape was established to be between 12:30 and 1:15 a.m. on July 5. S.B. also testified that she went to the powwow near the Festival the evening of July 5. She saw the petitioner at the powwow, but she did not contact the authorities.

[¶ 10] S.B. was shown two photographic lineups, the first of which contained a photograph of Tom Janis, but not Tony Siers. S.B. did not identify her assailant when shown the first lineup. The second photographic lineup contained a photograph of Tony Siers. S.B. identified the photo of Tony Siers as her assailant "Tony."

[¶ 11] Larvie, familiar with both Tom Janis and Tony Siers, initially identified Tom Janis as the man who "screamed" up on a motorcycle and dropped S.B. off at the convenience store when S.B. called for a ride to the hospital. Three days prior to trial, after a prosecutor and detective came to her home and showed her a photographic lineup, Larvie recanted. She then testified at trial that she initially had a recollection problem that was cleared up upon seeing the photographic lineup which contained pictures of both Tom Janis and Tony Siers.

PROCEDURAL HISTORY

[¶ 12] A jury found petitioner guilty of second-degree rape on October 4, 1991. Following a court trial, petitioner was found guilty of being a habitual offender and was sentenced to serve fifteen years in the South Dakota State Penitentiary. Petitioner appealed his rape conviction to the South Dakota Supreme Court, where it was summarily affirmed. State v. Siers, 494 N.W.2d 390 (SD 1992).

[¶ 13] On September 6, 1994, petitioner filed an application for Writ of Habeas Corpus and was appointed counsel ten days later. An amended application and petition for Writ of Habeas Corpus was filed on October 19, 1995, more than a year later. On February 16, 1996, an evidentiary hearing was held before the Honorable Roland Grosshans. At the conclusion of the hearing, Judge Grosshans ordered the parties to brief the issue of whether petitioner received effective assistance of counsel when the alibi witness appeared at trial in response to a subpoena, but was never called to testify.

[¶ 14] The State moved to reopen the evidentiary hearing; the motion was granted and the hearing was scheduled for May 3, 1996. Petitioner moved for a continuance and the hearing was continued until July 26, 1996. In the meantime, Judge Grosshans retired and the case was transferred to two other judges prior to being assigned to the Honorable Janine Kern on January 21, 1997. On February 21, 1997, a supplemental evidentiary hearing was held before Judge Kern, who granted the petition for the Writ of Habeas Corpus on November 7, 1997. The grant of habeas relief was reversed on appeal to the South Dakota Supreme Court.

STANDARD OF REVIEW

[¶ 15] When reviewing a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254, the court does not review petitioner's state court judgment, it only determines whether petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." Coleman v. Thompson, 501 U.S. 722, 111 SCt 2546, 2254, 115 L.Ed.2d 640 (1991). The court may grant habeas relief only if the state conviction "was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

[¶ 16] The unreasonable application standard allows a writ to issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 120 SCt 1495, 1523, 146 L.Ed.2d 389 (2000). The state court's factual findings are presumed to be correct and will be given deference unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d)(2). This presumption may be rebutted by clear and convincing evidence. Holman v. Kemna, 212 F.3d 413, 417 (8th Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).

[¶ 17] The starting point in a federal habeas action is an analysis of "the state courts' determinations of fact, including that aspect of a 'mixed question' that rests on a finding of fact." Williams, 120 SCt at 1509. The "AEDPA plainly sought to ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Id. (quoting H. R. Conf. Rep. No. 104-518, p. 111 (1996)). The Supreme Court found it " significant that the word 'deference' does not appear in the text of the statute" and that "[w]hatever 'deference' Congress had in mind with respect to [2254(d)(1)(2)], it surely is not a requirement that federal courts actually defer to a state-court application of the federal law that is, in the independent judgment of the federal court, in error." Id.

[¶ 18] In referring to the phrase "contrary to," the Williams Court quoted Judge Esterbrook: "Section 2254(d) requires us to give state courts' opinions a respectful reading, and to listen carefully to their conclusions, but when the state court addresses a legal question, it is the law 'as determined by the Supreme Court of the United States' that prevails." Id. (quoting Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 SCt 2059, 138 L.Ed.2d 81 (1997)). "There is nothing in the phrase 'contrary to' . . . that implies anything less than independent review by the federal courts." Id. at 1511. The Supreme Court Justices unanimously agreed that "state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." They split, however, with the majority indicating their "difference is as to cases in which, at first-blush, a state-court judgment seems entirely reasonable, but thorough analysis by a federal court produces a firm conviction that that judgment is infected by constitutional error." Id. The majority concluded that "such a judgment is 'unreasonable' within the meaning of the act even though that conclusion was not immediately apparent." Id. The standard according to Williams is "[i]f, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Id.

[¶ 19] The threshold question is whether petitioner seeks to apply a rule of law that was clearly established at the time his state-court conviction became final. Williams, 120 SCt at 1497. The threshold is met since petitioner seeks to apply the Sixth Amendment right to effective assistance of counsel which was clearly established by Strickland at the time petitioner's conviction became final. See Strickland v. Washington, 466 U.S. 668, 104 SCt 2052, 80 L.Ed.2d 674 (1984).

INEFFECTIVE ASSISTANCE OF COUNSEL

[¶ 20] Petitioner contends that he was denied his constitutionally guaranteed right to effective assistance of counsel when his trial lawyer failed to investigate two main alibi witnesses, Joanna Siers and Forest Bordeaux, and when his trial counsel failed to call Joanna to testify.

[¶ 21] Respondents contend that Joanna Siers was not present in the courtroom during the trial and that petitioner's trial counsel concluded that Joanna's and Bordeaux's testimony could be more damaging than helpful, because it placed petitioner in the area at which the victim said she was first approached by petitioner.

[¶ 22] To succeed on a claim of ineffective assistance of counsel, petitioner must prove both that "counsel's representation fell below an objective standard of reasonableness" and "that the deficient performance prejudiced the defense." Strickland, 104 SCt at 2064. To establish that his counsel's performance was objectively unreasonable, petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Mansfield, 202 F.3d at 1022 (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 SCt 2052, 80 L.Ed.2d 674 (1984)). In addition, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Johns v. Bowersox, 203 F.3d 538, 546 (8th Cir. 2000).

[¶ 23] To establish prejudice, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Williams, 120 SCt at 1511 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 SCt 2052, 80 L.Ed.2d 674 (1984)).

[¶ 24] The last state court to render a decision concerning petitioner's ineffective assistance of counsel claim, the South Dakota Supreme Court, in a 3-2 decision, held as follows:

The trial court's findings make it clear that the sole basis for the habeas relief was the purported failure to adequately investigate and use Joanna and Forest as alibi witnesses. However, the findings and record do not support this conclusion when analyzed against our recent decision in Sprik, 1997 SD 134, 572 N.W.2d 824, and substantial prior authority. [footnote omitted] In Sprik, the defendant was convicted of rape. In his habeas petition he argued his counsel was ineffective for failure to raise an alibi defense as Sprik claimed a "White Eyes" could provide testimony he was with Sprik at another location at the time of the rape. In rejecting Sprik's argument we held:

Alibi evidence must show that the accused could not have committed the alleged crime, because at the time of its commission he was at a place other than where such offense was committed. An alibi to be successful must cover the entire time when [appellant's] presence was required for accomplishment of the crime. . . . [A] purported alibi that leaves it possible for the accused to be the guilty person is no alibi at all.

Siers v. Class, 581 N.W.2d 491, 497 (quoting Sprik v. Class, 572 N.W.2d 824, 832 (1997)).

[¶ 25] Although the South Dakota Supreme Court deferred to the habeas court's findings of fact regarding what counsel did or did not do, it substituted its own judgment "as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel." Id. (quoting Lykken v. Class, 561 N.W.2d 302, 304-05 (SD 1997)). This court will defer to the South Dakota Supreme Court's findings of fact and to the state habeas court for those facts not overruled by the South Dakota Supreme Court.

[¶ 26] The court will first consider the reasonableness of trial counsel's conduct to determine if it fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 SCt 2052. "Counsel has a duty to make a reasonable investigation based on the information provided by a defendant, particularly when an alibi is involved." Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 691, 104 SCt 2066-67, 80 L.Ed.2d 674 (1984)).

[¶ 27] In this case, trial counsel testified that he had two main strategies, alibi and consent of the victim because she requested oral sex. Petitioner adamantly maintained his innocence, insisted that he was not there and did not rape S.B., and refused to allow counsel to argue consent as a defense. That left petitioner with alibi as his only potentially viable defense and this defense was not presented to the jury because of counsel's failure to investigate or introduce alibi evidence. At trial, counsel scarcely argued reasonable doubt and inferred consent of the victim.

[¶ 28] Counsel also testified at the habeas hearing that upon learning the names of four alibi witnesses, he attempted to contact them. Indeed counsel did contact two of the alibi witnesses, Loydell Williams and Randy Williams, and determined that their testimony only established that petitioner was at the powwow that evening, placing petitioner in the area where S.B. indicated she was first approached by "Tony." Knowing the extent of their testimony, counsel made a strategic trial decision not to have Loydell Williams and Randy Williams testify. The same is not true concerning Joanna Siers and Forest Bordeaux.

[¶ 29] Despite the fact that counsel considered Joanna Siers and Forest Bordeaux to be "the main alibi witnesses," he failed to ask the private investigator for the public defender's office to locate either Joanna Siers or Bordeaux; he failed to request the assistance of his support staff in locating them; he failed to send letters to Joanna Siers and Bordeaux requesting them to contact him regarding petitioner's case; he failed to request aid from the court in locating them; he failed to request a continuance to find them; and he failed to request the issuance of a contempt citation when he believed Joanna did not appear at trial. Counsel's only attempt to contact these witnesses was to stop by their home once prior to trial. Counsel then issued subpoenas for Joanna Siers and Bordeaux to appear at the jury trial held on October 4, 1991. Joanna Siers was served, but Bordeaux was not served because he was on the Rosebud Reservation.

[¶ 30] At trial, Bordeaux was not called to testify because he was never served. Joanna Siers was served and alleges she attended the trial, but she was never called as a witness. Petitioner testified at the habeas hearing that when he asked his counsel when his alibi witnesses were going to be called, his counsel said, "Just leave it to me." The defense presented no evidence at trial. At the habeas hearing, counsel testified that he could state no tactical reason for not calling Joanna Siers as a witness.

[¶ 31] Joanna Siers and Forest Bordeaux testified at the habeas hearing that petitioner was at their home at 10:30 p.m. on the night of the rape, that the three watched television until 11:30 or 11:45 p.m., that petitioner then went to sleep in a separate bedroom, that neither of them heard anyone leave or enter the apartment during the night and that neither noticed any marks on petitioner, nor any peculiarities in his behavior the next morning. In addition, both testified that they would have provided identical testimony at trial had they been allowed to testify.

[¶ 32] The time of the rape was established between 12:30 a.m. and 1:15 a.m. on July 5, 1991. S.B. testified that she was in the company of her rapist two to three hours prior to the rape, placing her with the assailant from at least 11:15 p.m. to 1:15 a.m. Petitioner's alibi witnesses place him at their home from at least 10:30 p.m. to 11:45 p.m. In holding that Joanna's testimony would not establish an alibi because it did not cover the entire time when petitioner's presence was required for accomplishment of the crime, the South Dakota Supreme Court disregarded S.B.'s testimony that she was with her assailant for two hours prior to the rape.

[¶ 33] In determining that trial counsel was not ineffective for failing to investigate petitioner's alibi, the South Dakota Supreme Court relied on Sprik. Sprik v. Class, 572 N.W.2d 824 (1997). In Sprik, the court held that "an attorney must make a reasonable investigation and reasonable decisions to forgo particular defenses." Id. at 831. This case is distinguishable from Sprik because in Sprik, trial counsel knew what the testimony of the alibi witness would be. He also knew that the alibi witness was intoxicated during the entire evening in question and could not identify his client as the person with whom he spent the evening. Trial counsel in Sprik testified that he considered the alibi defense and made a conscious decision not to use it because he felt it was shaky.

[¶ 34] In this case, although trial counsel knew Joanna Siers and Forest Bordeaux were potential alibi witnesses, he failed to investigate or present their testimony. He testified that the only attempt at contact with them was when he went to their home once and subpoenaed them for trial. In addition, counsel admitted in his habeas testimony that he did not make a strategic choice not to utilize their testimony. Despite petitioner's persistence of innocence and his suggestion of potential alibi witnesses, counsel failed to investigate the two main alibi witnesses and failed to call Joanna at trial when she appeared in response to a subpoena. "Once a defendant identifies potential alibi witnesses, it is unreasonable not to make some effort to contact them to ascertain whether their testimony would aid the defense." Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991). Counsel's stopping by Joanna's home once does not demonstrate "some effort." Counsel was appointed in this case on August 8, 1991, and the trial was held on October 4, 1991. Counsel had sufficient time prior to trial to contact the "main alibi witnesses." Furthermore, when Joanna appeared at trial pursuant to the subpoena, counsel could have interviewed her outside of the courtroom to determine if her testimony would aid the defense.

[¶ 35] The South Dakota Supreme Court also cited Schlup v. Armontrout, 941 F.2d 631 (8th Cir. 1991), in finding that counsel's failure to investigate did not amount to ineffective assistance of counsel. Schlup is also distinguishable from this case because in Schlup, although trial counsel did not interview or call any of the alibi witnesses, he made a strategic decision not to utilize their testimony after reviewing both the testimony they had given at two previous trials of Schlup's co-defendants and statements they had given to investigators. In this case, counsel did not review any prior testimony or statements of Joanna Siers or Forest Bordeaux; he did not know what their testimony would have been.

[¶ 36] The Eighth Circuit has held that "[c]ounsel has a duty to make a reasonable investigation based on the information provided by a defendant, particularly when an alibi is involved." Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir. 1996). In Hadley, petitioner's attorneys knew that alibi witnesses existed, yet failed to investigate or call any of them. One lawyer testified that he left the investigation up to the other lawyer, who testified that he had one of the witnesses' names in his notes and remembered trying to call her once. When counsel decided that the alibi witness was not an alibi for one particular break-in, he crossed her name off his list without asking her about the time of a second break-in four days later. The court found in Hadley that "[g]iven the crucial nature of the . . . evidence, counsels' failure to investigate constituted deficient performance." Id. (citing Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989) (failure to take reasonable steps to obtain alibi testimony of known relevant witnesses constitutes ineffective assistance of counsel); Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir. 1984) (investigation deficient where it consisted of simply reading police file and not investigating defendant's claim of innocence or three alibi witnesses whose names were provided by defendant).

[¶ 37] Because counsel testified that he could state no tactical reason for not calling Joanna Siers and because there was no reasonable strategic choice that could account for counsel's failure to investigate or introduce alibi evidence, the court finds that petitioner has overcome the presumption that counsel's action might be considered sound trial strategy. Accordingly, the court finds that trial counsel's failure to investigate or introduce crucial evidence at trial fell "outside the wide range of professionally competent assistance," amounting to deficient performance under Strickland.

[¶ 38] The second inquiry under Strickland is whether petitioner has shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In determining the existence of prejudice to petitioner, the South Dakota Supreme Court considered factors one and three of the three-factor analysis set forth in McCauley-Bey v. Delo, 97 F.3d 1104 (8th Cir. 1996): "(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution." Siers, 581 N.W.2d at 497-98.

[¶ 39] The first factor to be considered is the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses. The South Dakota Supreme Court found that Joanna Siers and Forest Bordeaux were subject to impeachment for bias because of their relationship to petitioner and because Joanna did not tell the police that petitioner was at her home that night. Joanna testified at the habeas hearing, however, that she did not tell the police because "they never came around and asked." In its analysis, the Court addressed only the credibility of the uncalled witnesses, not the credibility of all witnesses as suggested by McCauley-Bey. The testimony of the uncalled witnesses is not to be considered in a vacuum. Strickland specifically directs that the totality of the evidence be considered. 466 U.S. at 695.

[¶ 40] In assessing the credibility of all witnesses, the court will begin with the credibility of the victim. S.B. came into the convenience store and immediately called a friend for a ride. She called the police only after the convenience store clerk convinced her to call the police. In addition, S.B.'s initial physical description of her assailant to the police was inconsistent with petitioner's physical appearance because she described a man with sandy brown hair when the petitioner is a Native American male with black hair. Furthermore, S.B. claims she saw "Tony" again the evening of July 5 when she returned to the powwow near the Festival, but she did not call the police or immediately alert law enforcement.

[¶ 41] The credibility of the convenience store clerk, Juanita Larvie, must also be considered. Larvie's initial statement to petitioner's private investigator and a detective was that Tom Janis, not petitioner, "screamed" into the convenience store lot on a motorcycle and dropped the victim off at the door. She maintained this statement until three days prior to trial, when approached again by the detective and a prosecutor. At this time Larvie changed her story, indicating that it was petitioner, not Janis, who came to the convenience store with the victim on a motorcycle. On the day of trial, Larvie again changed her story and testified that petitioner was not on the motorcycle and she did not see a bicycle.

[¶ 42] The credibility of the remaining witnesses, Patti Lebeau, the victim's friend, Sharona Johnson, emergency department registered nurse, Dr. Stephen Dick, examining physician, and Edward Rodriguez, the detective, does not weigh for or against the finding of prejudice. Patti Lebeau testified concerning the area in which the rape occurred. Sharona Johnson and Dr. Stephen Dick testified about S.B.'s injuries.

[¶ 43] After having considered the credibility of all the witnesses, including the testimony of the uncalled alibi witnesses, the court finds that this factor weighs toward the finding of prejudice.

[¶ 44] The second factor, although not addressed by the South Dakota Supreme Court, is the interplay of the uncalled witnesses with the actual defense witnesses called. This factor weighs heavily in favor of the finding of prejudice because there were no defense witnesses called at trial.

[¶ 45] The third factor is the strength of the evidence actually presented by the prosecution. The evidence presented at trial included the testimony of the witnesses as described previously, including the inconsistencies of S.B.'s and the store clerk's statements, and the medical staff's description of S.B.'s injuries. S.B.'s testimony that she was given two names, "Tom Janis" and "Tony Siers," and that she was given the name of Silver Street, the street where petitioner's mother lives, adds to the strength of the evidence. However, because the jury deliberated for four hours, when the trial lasted four hours and forty-five minutes (excluding jury selection), an inference can be made that the evidence presented was not overwhelming. This factor also weighs in favor of the finding of prejudice. Having found that each of the three factors weighs toward the finding of prejudice, the court finds that trial counsel's performance prejudiced petitioner's defense.

[¶ 46] After duly considering the record and available law, the court concludes that petitioner has been denied the right to the effective assistance of counsel. Based on the foregoing discussion, the court finds that the South Dakota Supreme Court correctly identified the controlling law, but that its application of the law to the facts of petitioner's case is both "contrary to" and involves "an unreasonable application of" Strickland. Accordingly, it is hereby

[¶ 47] ORDERED that respondents' objections are overruled.

[¶ 48] IT IS FURTHER ORDERED that the court accepts the portions of the findings and recommendations of the magistrate judge that are consistent with this opinion and adopts those findings. The portions of the findings and recommendations that are inconsistent with this opinion are rejected by the court.

[¶ 49] IT IS FURTHER ORDERED that Sier's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is granted.

[¶ 50] IT IS FURTHER ORDERED that within sixty days of the date of this order, or within such additional time as this or a reviewing court may subsequently grant, upon a showing of good cause, the petitioner's previous conviction of second-degree rape shall be set aside and a new trial shall be held accordingly, or a writ of habeas corpus shall issue requiring the release of petitioner from the custody of the respondents on the ground that such continued custody is in violation of the Constitution and laws of the United States.