United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 00-3124
                                   ___________

Anthony Siers,                        *
                                      *
             Appellee,                *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Douglas Weber, Warden of the South    * District of South Dakota.
Dakota State Penitentiary; Mark W.    *
Barnett, South Dakota Attorney        *
General,                              *
                                      *
             Appellants.              *
                                 ___________

                             Submitted: February 26, 2001

                                 Filed: August 14, 2001
                                  ___________

Before WOLLMAN, Chief Judge, HANSEN, and BYE, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       The state of South Dakota appeals from the district court’s grant of Anthony
Siers’s petition for writ of habeas corpus. We reverse and remand with directions to
dismiss the petition.
                                            I.

       On October 4, 1991, a Pennington County, South Dakota, jury found Siers guilty
of second degree rape. As a habitual offender, Siers was sentenced to fifteen years in
the South Dakota State Penitentiary. In 1994, after the South Dakota Supreme Court
summarily affirmed his conviction, Siers filed a petition for a writ of habeas corpus in
the state trial court, which was eventually granted in November of 1997. The South
Dakota Supreme Court reversed the grant of habeas relief in July of 1998. Siers v.
Class, 

(S.D. 1998). In November of that year Siers filed a pro se
petition for habeas relief in federal district court. After the appointment of counsel,
amended pleadings were filed in December of 1999, and on August 10, 2000, the
district court granted the petition. The state filed this appeal and obtained a stay of
Siers’s release pending the outcome of these proceedings.

       We recite the facts as determined by the South Dakota Supreme Court. On July
4, 1991, S.B., a college sophomore, went to meet friends at the Black Hills Heritage
Festival in Rapid City, South Dakota. S.B. was unable to locate her friends, but met
up with a man who followed her around the festival while she looked for them. He
identified himself as Tony Siers. S.B. left the festival, planning to walk to a friend’s
home, and Siers followed her on his bicycle, attempting to persuade her to enter
secluded areas with him. Nervous, and forgetting that she had already given him her
name, S.B. gave Siers a false name, prompting him to tell her that he had also lied
about his real name, which he said was Tom Janis. Siers then tried unsuccessfully to
persuade S.B. to accompany him to his home on Silver Street.

       Siers eventually convinced S.B. to walk across a dark lot, where he raped her.
After the assault, S.B., fearing for her life, agreed to go back to Siers’s house with him,
but asked to stop at a convenience store. Siers waited outside the store while S.B. used
the telephone. Juanita Larvie, the convenience store clerk, overheard S.B. asking a
friend to pick her up and take her to the hospital. Larvie elicited from S.B. that she had

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been raped. At Larvie’s suggestion, S.B. called the police. She asked Larvie to
remember the names Tony Siers and Tom Janis and gave both names to the police
officer who answered her call.

       S.B. took the police to the scene of the rape. Physical and medical evidence
generally corroborate S.B.’s account of the rape. Upon visiting the Silver Street
address given by S.B., a police detective determined that it was the residence of Siers’s
mother and that Siers had been living there and at the home of his sister, Joanna Siers.
The detective then spoke with Joanna Siers at her home and ascertained that Siers was
not there. Joanna Siers was cooperative, but said nothing to the effect that her brother
had been at her home at the time of the rape. When he was ultimately arrested at the
Silver Street house, Siers said nothing to the arresting officers about having spent the
night at his sister’s house. S.B. and Larvie both picked Siers’s picture out of
photographic line-ups, although S.B. had initially described her attacker as having
“sandy hair,” whereas Siers has black hair, and Larvie, who was acquainted with both
Siers and Tom Janis, had initially told police that Tom Janis was the man she saw
outside the convenience store.

       Attorney David Wurm, who was appointed to represent Siers, called no defense
witnesses at trial. According to the testimony presented at the state habeas proceeding,
Siers had told Wurm that four witnesses, Loydell and Randy Williams, and Joanna
Siers and her boyfriend Forest Bordeaux, could provide an alibi by placing him at a
powwow that was going on near the festival, and that he had slept at his sister’s home
on the night of the rape. Wurm interviewed the Williamses and concluded that because
their testimony placed Siers near the scene of the rape and because they could not
remember the precise time they saw Siers at the powwow, their testimony would not
prove helpful. Wurm went to Joanna Siers’s house in an attempt to interview her and
Bordeaux, but neither was at home. Wurm subpoenaed Joanna Siers; Bordeaux was,
by then, on the Rosebud Sioux Indian Reservation and therefore beyond the reach of
the subpoena. Although Wurm could not remember what other steps he took to contact

                                          -3-
Bordeaux and Joanna Siers, his normal practice would have been to ask Siers for help
in contacting them, to leave his business card in the door when he visited Joanna
Siers’s home, and to attach a note to the subpoena asking her to contact him. Wurm’s
telephone number was written on the face of the subpoena, and it is undisputed that
Joanna Siers did not contact him prior to the trial.

        Both Joanna and Anthony Siers testified at the state habeas proceeding that
Joanna responded to Wurm’s subpoena by coming to the trial. Wurm stated that he
was unaware of Joanna’s presence and that he had received no response when he called
her name in the hallway outside the courtroom during the course of the trial. Siers
alleges that he asked Wurm why no alibi witnesses were called. Joanna Siers testified
that she had approached Wurm during the trial and asked him when she would testify
and was told that her testimony was not needed. She further testified that Siers was at
her home on the night of the rape, that she, Siers, and Bordeaux were awake during the
early portion of the two to three hour period prior to the rape, that all three went to bed
at the same time, and that because she is a light sleeper, she would have heard Siers if
he had left during the night. Wurm testified that, had he been aware of Joanna Siers’s
presence during the trial and of her testimony as presented on habeas review, he would
have had no strategic reason not to call her as a witness.

                                            II.

      The sole issue before us is whether the district court properly concluded that the
South Dakota Supreme Court’s holding that Wurm’s failure to interview Joanna Siers
did not amount to ineffective assistance of counsel was an unreasonable application of
federal law. Because we conclude that the district court failed to give appropriate
deference to the state court’s finding that Siers had suffered no prejudice as a result of
Wurm’s dereliction of duty, we reverse.




                                           -4-
                                     A. Standards

       We review the district court’s legal conclusions de novo and its findings of fact
for clear error. Hadley v. Groose, 

, 1134 (8th Cir. 1996).

       A state prisoner may obtain federal habeas relief with respect to a claim
adjudicated on the merits in state court only through a showing that the state court’s
decision was either (1) contrary to, or (2) an unreasonable application of, clearly
established federal law as determined by the Supreme Court. Williams v. Taylor, 

, 404-05 (2000); Newman v. Hopkins, 

, 851 (8th Cir. 2001). In
Williams, the Supreme Court articulated the deference due state court decisions on the
merits in federal habeas proceedings concerning state prisoners under the Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which amended 28
U.S.C. § 2254(d)(1). 

U.S. 402-03.

       The opinion of the Court in Williams is a divided one, and the issue raised by the
state in the present case is precisely the one that split the Court. The amended statute
places considerable constraints on the authority of the federal courts to set aside state
rulings:

      (d) An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any clam that was adjudicated on the merits in State court
      proceedings unless the adjudication of the claim–
      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States.

§ 2254(d)(1).




                                          -5-
      Justice Stevens, who authored the bulk of the Court’s opinion in Williams, read
AEDPA’s “contrary to . . . or an unreasonable application of . . .” language as
comprising a single, relatively broad grant of authority, and thus parted company with
the majority of the Court with respect to the proper scope of federal review in a small
subset of cases:

      Our difference is as to the cases in which, at first-blush, a state-court
      judgment seems entirely reasonable, but a thorough analysis by a federal
      court produces a firm conviction that that judgment is infected by
      constitutional error. In our view, such an erroneous judgment is
      “unreasonable” within the meaning of [AEDPA] even though that
      conclusion was not immediately 

(Stevens, J., concurring in the judgment).

       Rejecting Justice Stevens’s argument that the “contrary to” and “unreasonable
application of” clauses ought to be read as a single grant of authority, the majority
concluded that the statute limits the grant of habeas relief on claims adjudicated in state
court to two narrow circumstances. 

      Under the “contrary to” clause, a federal habeas court may grant the writ
      if the state court arrives at a conclusion opposite to that reached by this
      Court on a question of law or if the state court decides a case differently
      than this Court has on a set of materially indistinguishable facts. Under
      the “unreasonable application” clause, a federal habeas court may grant
      the writ if the state court identifies the correct governing legal principle
      from this Court’s decisions but unreasonably applies that principle to the
      facts of the prisoner’s case.

                                           -6-
    Justice O’Connor, writing for the majority, squarely rejected the proposition that
AEDPA left room for federal courts to exercise their “independent judgment.”

      Under § 2254(d)(1)’s “unreasonable application” clause, then, a federal
      habeas court may not issue the writ simply because that court concludes
      in its independent judgment that the relevant state-court decision applied
      clearly established federal law erroneously or incorrectly. Rather, that
      application must also be unreasonable.

“Stated simply, a federal court making the ‘unreasonable application’
inquiry should ask whether the state court’s application of clearly established federal
law was objectively unreasonable.” 

Williams repeatedly emphasizes that
a state court’s determination that is simply erroneous does not meet the AEDPA
standard for unreasonableness. 

of “clearly established federal law” is
limited to the jurisprudence of the Supreme Court, 

                        B. Ineffective Assistance of Counsel

       The district court concluded that the South Dakota Supreme Court’s decision
was both contrary to and an unreasonable application of clearly established federal law
governing ineffective assistance of counsel claims. The state contends that, in reaching
this conclusion, the court conducted the sort of “independent judgment” inquiry
advocated by Justice Stevens, rather than applying the “objectively unreasonable”
standard mandated by the opinion of the Court in Williams.

       Although the district court acknowledged the standards that Justice O’Connor
set out in Williams, the state is correct in its contention that the court inappropriately
adopted Justice Stevens’s reasonableness standard. District Court Order at 7 (“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

                                           -7-
custody . . . violates the Constitution, that independent judgment should prevail.’”)
(quoting 

(Stevens, J., concurring in judgment)). The
question before us, then, is whether the grant of habeas relief was appropriate under the
more deferential “objectively unreasonable” standard, given the South Dakota Supreme
Court’s adjudication of Siers’s ineffective assistance claim on the merits.

       To show that his counsel was ineffective, Siers must show both that his
attorney’s performance was deficient and that he suffered prejudice as a result.
Strickland v. Washington, 

, 687 (1984); 

. We
need not inquire into the effectiveness of counsel, however, if we determine that no
prejudice resulted from counsel’s alleged deficiencies. 

;
Blankenship v. United States, 

, 338 (8th Cir. 1998). In order to show
prejudice, a habeas petitioner must establish “that there is a reasonable probability that
but for counsel’s unprofessional errors, the result . . . would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” 

; 

; United States v.
Scott, 

, 838 (8th Cir. 2000), cert. denied sub nom., 

(2000).
In evaluating the probability of a different result, the court must consider the totality of
the evidence. 

.

       Although we are inclined to agree with the district court that the failure of Siers’s
counsel to interview Joanna Siers and Bordeaux was deficient, we reverse because we
conclude that the South Dakota Supreme Court’s determination that there was no
resultant prejudice was not objectively unreasonable.

       The district court accepted the South Dakota Supreme Court’s factual
determinations, but concluded that, although the state court had articulated the correct
prejudice framework, its application of that framework was unreasonable because it
failed to consider the interplay of the uncalled witnesses with those who were called.
After determining that Wurm’s performance was deficient, the district court made an

                                            -8-
independent analysis of the credibility of each of the witnesses who were called, as
well as that of Joanna Siers and Bordeaux. The court concluded that, particularly in
light of the fact that Wurm called no defense witnesses whatsoever, the additional
testimony probably would have changed the outcome and that Wurm’s failure to
investigate was therefore so prejudicial as to make a “no prejudice” finding
unreasonable.

      Having reviewed the South Dakota Supreme Court’s prejudice analysis, we
conclude that it is not an unreasonable application of clearly established federal law
within the meaning of § 2254(d)(1). After reciting the Strickland standard, the South
Dakota Supreme Court set forth the framework for its prejudice analysis:

      Standing alone, the fact that defense counsel failed to investigate a
      witness does not by itself satisfy the prejudice prong of Strickland.
      

. “To establish prejudice from counsel’s failure
      to investigate a potential witness, a petitioner must show that the witness
      would have testified and that their testimony ‘would have probably
      changed the outcome of the trial.’” 

v. Nix, 

, 744 (8th Cir. 1994) (emphasis added)). In conducting this analysis,
      we will consider: “(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.”
      McCauley-Bey v. Delo, 

, 1106 (8th Cir. 1996).

Siers v. 

.

       The South Dakota Supreme Court based its prejudice determination on its
assessments that (1) the jury would not have considered Joanna Siers a credible witness
because she was Siers’s sister and because she had not told anyone prior to the trial
that Siers was with her the night of the rape, despite numerous opportunities to do so;
(2) Bordeaux would not have made a credible witness because of his relationship with

                                          -9-
Siers’s sister; (3) the physical evidence that S.B. had been the victim of a forcible rape
was overwhelming; (4) S.B. was highly credible on the issue of identity because she
had spent considerable time with her attacker and because, although she was from out
of state and had never met Siers, she knew the Silver Street address, a fact that could
only have come from her attacker; and (5) Larvie , who knew Siers and who was the
only witness who was not subect to impeachment on the basis of bias, placed S.B. and
Siers together at the store immediately after the rape. 

In light of these
considerations, the court concluded that Siers had failed to demonstrate a reasonable
probability that the additional testimony would have changed the outcome. 

we assume that the district court correctly concluded that the South
Dakota Supreme Court’s weighing of the factors was erroneous, it still had no basis
under § 2254(d)(1) to grant habeas relief because such an error does not rise to the
level of objective unreasonableness. See 

. The fact that
evidence exists which led the district court to a contrary conclusion does not mean that
the South Dakota Supreme Court failed to consider the totality of the evidence as
required by Strickland. See Phoenix v. Matesanz, 

, 83-84 (1st Cir. 2000)
(federal court’s disagreement with a state court’s holding on a close issue does not
make the state court’s decision unreasonable). Unlike the Virginia Supreme Court in
Williams, the South Dakota Supreme Court did not ignore evidence favorable to the
defendant in evaluating the probability of a different outcome, see 

but
simply differed from the district court in its opinion of its probable effect on the
outcome. Its conclusion that there was no prejudice is therefore sufficiently reasonable
to be entitled to deference under AEDPA. Accordingly, the district court erred in
granting the habeas petition.

       The judgment is reversed, and the case is remanded to the district court with
direction to dismiss the petition.




                                          -10-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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