The Honorable Richard G. Kopf, United States District Judge 1

for the District of Nebraska, adopting the recommendations of the

Honorable David L. Piester, United States Magistrate Judge for the

District of Nebraska.

___________

No. 95-3382

___________

Cary Nelson Rehbein, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Harold W. Clarke; John Dahm, *

*

Appellees. *

___________

 Submitted: March 12, 1996

 Filed: August 27, 1996

___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

___________

BEAM, Circuit Judge.

Cary Nelson Rehbein appeals the district court's dismissal of his

1

third federal petition for a writ of habeas corpus. We affirm.

I. BACKGROUND

In 1983, Rehbein pleaded guilty to murdering Carl Fisher during the

course of a robbery. He was sentenced to life imprisonment. Rehbein did

not appeal his conviction or the life sentence. Instead, in 1988, Rehbein

filed a motion for postconviction relief in state court. The state

district court denied relief, and the Nebraska Supreme Court affirmed the

denial in State v. Rehbein, 455 N.W.2d 821 (Neb. 1990).
 Rehbein's new grounds for relief included: 1) his guilty

2

plea was unlawfully induced; 2) he was incompetent at the time he

entered his plea; 3) his guilty plea was not knowingly and

voluntarily given; 4) his trial counsel was ineffective; and 6) the

prosecution failed to disclose favorable evidence.

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Thereafter, Rehbein filed a petition for a writ of habeas corpus in

federal court pursuant to 28 U.S.C. § 2254 (Rehbein I). The district court

dismissed that petition without prejudice to allow Rehbein to exhaust his

available state remedies. Rehbein I is not relevant to the issues in this

appeal. In 1990, however, Rehbein filed a second federal habeas petition

(Rehbein II). In his petition, Rehbein alleged: 1) his trial counsel was

ineffective because he failed to advise and pursue an insanity defense on

behalf of Rehbein; 2) his right to a direct appeal was denied due to his

detention in isolation for 91 days following his conviction and sentencing;

and 3) he was denied an evidentiary hearing in state court.

A hearing on Rehbein's second federal habeas petition was scheduled

for March 22, 1991. The day before the hearing, however, Rehbein joined

with the state in filing a joint motion for dismissal of all claims with

prejudice. Attached to that motion was Rehbein's handwritten letter

stating, "I am instructing my attorney Mr. Dana V. Baker to discontinue

this legal action in regards to CV90L-259 Cary N. Rehbein v. John Dahm et

al. I understand that dismissal means I can never bring up this case

again." The letter was signed by Rehbein and witnessed by Mr. Baker. A

magistrate judge sustained the motion without an evidentiary hearing, and

the action was accordingly dismissed with prejudice.

A year later, Rehbein filed the present petition for a writ of habeas

corpus in the district court (Rehbein III), raising a series of new

claims. Rehbein also renewed his claim that he had been denied the right 2

to a direct appeal in the Nebraska courts. 
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Specifically, as his fifth ground for relief, Rehbein alleged that he was

denied a direct appeal because: a) his trial counsel told him he could not

appeal and did not inform him of the time he had for filing a direct

appeal; b) he was in isolation for 91 days, during which time his time for

appeal ran; and c) he was having black-outs during the time allowed for

direct appeal (hereinafter claims 5(a), 5(b), and 5(c)).

The state argued that Rehbein III constituted an abuse of the writ.

With one exception, the district court agreed. The court determined that

all but one of the claims asserted in Rehbein III were claims that Rehbein

had inexcusably failed to include in his earlier habeas petition, and

accordingly dismissed those claims as abusive. The court determined,

however, that one of Rehbein's claims, claim 5(b), was not barred by the

abuse of the writ doctrine. According to the court, Rehbein's allegation

that he had been denied the right to a direct appeal due to his isolation

had previously been presented in Rehbein II. The court concluded that such

a repetitive claim was precluded in a subsequent petition only if the

original claim had been determined "on the merits" in a prior proceeding.

Since Rehbein II had been dismissed with prejudice without a hearing on the

merits, the court held that Rehbein was not barred from asserting claim

5(b) in Rehbein III, and scheduled that claim for further briefing.

In May 1995, the court considered the parties' additional submissions

with respect to claim 5(b). By that time, Rehbein's position with respect

to that claim had significantly changed. The court noted that claim 5(b)

was facially identical to a claim Rehbein had made in Rehbein II: both

claims alleged that Rehbein had been denied a direct appeal due to his

placement in isolation for the duration of his appeal time. Nevertheless,

the factual underpinnings of the two claims were substantially different.

Specifically, in briefing claim 5(b) of Rehbein III, Rehbein no longer

argued that he had been physically prevented from perfecting
 Rehbein does not challenge the court's finding that claim

3

5(b) had evolved into a claim which had never been presented to the

state courts.

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his direct appeal. Instead, Rehbein contended that he was never informed

of his right to appeal, that no library materials were available to him in

his isolation, and that prison staff denied several of his requests to see

a legal aide. 

Because Rehbein no longer alleged that he was denied a direct appeal

due to his being placed in isolation, the district court held that Rehbein

had abandoned that ground for habeas relief. Moreover, the court found that

the claim the petitioner did brief--predicated on his attorney's failure

to inform him of his right to appeal, the unavailability of library

materials, and the refusal of the prison staff to honor his request for a

legal aide--had never been presented to the state court. Accordingly, the

court found the claim to be procedurally defaulted. Since Rehbein could

not demonstrate cause and prejudice for his default or a fundamental

miscarriage of justice, the court dismissed Rehbein's remaining claim and

denied habeas corpus relief in all respects.

On appeal, Rehbein argues that the district court erred in dismissing

the claims presented for the first time in Rehbein III. Rehbein also

asserts that his procedural default on claim 5(b) was excused. For

3

affirmance, the appellees argue that all of Rehbein's claims should have

been dismissed as abusive. Alternatively, the state contends that

Rehbein's new claims were properly dismissed for abuse of the writ and that

Rehbein failed to establish grounds for excusing his procedural default of

claim 5(b). 
 Congress recently amended the statutes governing petitions

4

for writ of habeas corpus. Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 1996 U.S.C.C.A.N. (110

Stat.) 1214 (amending 28 U.S.C. §§ 2244, 2254, and 2255). The new

Act makes substantive and procedural changes which could

conceivably affect our review of this case. Although this court

has not yet determined to what extent the new Act applies to

noncapital cases pending on appeal, the parties seem to agree that

its provisions should not be applied to Rehbein's appeal. Because

Rehbein's petition would fail under any plausible application of

the new Act as well as under prior law, however, we need not

determine whether the new Act applies to this appeal.

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II. DISCUSSION

Resolution of this case requires an interpretation of the various

cases and statutes governing the filing of successive petitions for writ

of habeas corpus. As the United States Supreme Court has often noted,

4

ordinary principles of res judicata and collateral estoppel do not strictly

apply in the federal habeas context. See, e.g., Sanders v. United States,

373 U.S. 1, 7-8 (1963). Nevertheless, in the interest of finality and

judicial economy, federal courts are often barred from considering the

merits of claims raised in a second or subsequent federal habeas petition.

Washington v. Delo, 51 F.3d 756, 759 (8th Cir.), cert. denied, 116 S. Ct.

205 (1995). In determining when such a bar applies, we are guided not only

by the statutory standards set forth in 28 U.S.C. § 2244(b) and Rule 9(b)

of the Rules Governing Habeas Corpus Cases, but by the court's own

equitable powers. See McCleskey v. Zant, 499 U.S. 467 (1991).

A. New Claims

Rehbein first contends that the district court erred in dismissing

as abusive the claims raised for the first time in Rehbein III. In

McCleskey v. Zant, the United States Supreme Court announced the principles

that govern abuse of the writ claims. There, a state prisoner challenged

the constitutionality of his
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conviction in various state postconviction proceedings and in two federal

habeas petitions. McCleskey's second federal habeas petition contained a

ground for relief not raised in his first federal habeas petition. 499

U.S. at 474. The Eleventh Circuit ordered dismissal of the new claim as

an abuse of the writ, and McCleskey appealed, arguing that a new claim is

not abusive unless it is deliberately abandoned in a prior proceeding. Id.

at 476-77. The Supreme Court rejected McCleskey's argument. Tracing the

history of the abuse of the writ doctrine, the Court held that "[a]buse of

the writ is not confined to instances of deliberate abandonment." Id. at

489. Instead, "a petitioner can abuse the writ by raising a claim in a

subsequent petition that he could have raised in his first, regardless of

whether the failure to raise it earlier stemmed from a deliberate choice."

Id. Therefore, after McCleskey, claims raised or developed for the first

time in a second or subsequent habeas are abusive and may not be considered

on the merits unless the petitioner demonstrates either cause for his

failure to raise them earlier and resulting prejudice, or demonstrates that

a fundamental miscarriage of justice will result if the claim is not heard.

Id. at 493-94; see also Pitts v. Norris, 85 F.3d 348, 350 (8th Cir. 1996).

In arguing for reversal of the district court's order, Rehbein

asserts that the rules established in McCleskey do not govern his case.

According to Rehbein, the McCleskey principles apply only when a prior

habeas petition was determined "on the merits." Where, as here, an earlier

petition is dismissed without an evidentiary hearing, Rehbein contends that

McCleskey does not control. Instead, Rehbein urges us to look to Sanders

v. United States. In Sanders, a petitioner's second habeas claim, which

included one new ground for relief, was allowed to proceed to an

evidentiary hearing because his first petition had been dismissed without

a hearing on the merits.
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This argument is without merit. First, nothing in McCleskey suggests

that its holding was intended to be limited to cases in which an earlier

petition was determined on the merits. To the contrary, McCleskey spoke

in broad principles, emphasizing overriding interests of finality and

judicial economy in federal habeas corpus cases. Its holding did not turn

on the fact that McCleskey's first federal habeas petition had been decided

on the merits. 

Sanders is likewise unavailing to Rehbein. In Sanders, the court

specifically stated that when a different ground is presented by a new

habeas application, "full consideration of the merits of the new

application can be avoided only if there has been an abuse of the writ."

373 U.S. at 17. Subsequent to Sanders, McCleskey determined that abuse of

the writ may occur whenever a habeas petition fails to raise a ground in

a prior petition, unless that failure is excused by cause and prejudice or

actual innocence. Thus, Sanders does not alter our conclusion that

McCleskey governs the issues in this case; rather, it must be read in view

of McCleskey's further refinement of the abuse of the writ doctrine.

Rehbein further argues that, notwithstanding McCleskey, both Rule

9(b) of the Rules Governing Habeas Corpus Cases and 28 U.S.C. § 2244(b)

dictate that new claims in a second or subsequent petition cannot be deemed

abusive unless the prior petition was determined "on the merits." We

disagree. Rule 9(b) provides: 

[a] second or successive petition may be dismissed if the judge

finds that it fails to allege new or different grounds for

relief and the prior determination was on the merits or, if new

and different grounds are alleged, the judge finds that the

failure of the petitioner to assert those grounds in a prior

petition constituted an abuse of the writ.

Thus, by its very terms Rule 9(b) limits its "on the merits" requirement

to claims which do not allege new or different grounds
 Prior to the recent amendments, section 2244(b) provided: 5

When after an evidentiary hearing on the merits of a

material factual issue, or after a hearing on the merits

of an issue of law, a person in custody pursuant to the

judgment of a state court has been denied by a court of

the United States . . . release from custody . . . on an

application for a writ of habeas corpus, a subsequent

application for a writ of habeas corpus . . . need not be

entertained by a court of the United States . . . unless

the application alleges and is predicated on a factual or

other ground not adjudicated on the hearing of the

earlier application for the writ, and unless the court,

justice, or judge is satisfied that the applicant has not

on the earlier application deliberately withheld the

newly asserted ground or otherwise abused the writ.

28 U.S.C. § 2244(b).

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for relief. Furthermore, although the language of 28 U.S.C. § 2244(b)

provides some support for Rehbein's argument, the Court's decision in

5

McCleskey makes clear that 2244(b) does not fully define the federal

courts' discretion to entertain claims which could have been raised in an

earlier petition. In holding that a new federal habeas claim may be

abusive even if omitted due to inexcusable neglect, the Court specifically

rejected the notion that section 2244(b) provided the final word on abusive

petitions. As the Court noted, "Congress did not intend § 2244(b) to

foreclose application of the court-announced principles defining and

limiting a district court's discretion to entertain abusive petitions."

McCleskey, 499 U.S. at 487. Instead, the statutes and rules addressing

potentially abusive claims must always be read in light of the equitable

proposition that petitioners "should include all reasonably available

claims and grounds for relief in their first habeas petition." Washington,

51 F.3d at 760. 

Having determined that McCleskey's pronouncements on abuse of the

writ control this case, we must affirm the dismissal of the new claims

unless Rehbein can show cause for the failure to raise those
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claims and prejudice arising therefrom, or, in the alternative, facts

indicative of a fundamental miscarriage of justice. See id. After

reviewing the record, we conclude that Rehbein has failed to do so.

Initially, we note that throughout this appeal Rehbein has argued only that

the McCleskey cause and prejudice standards should not apply to this case.

He has not addressed whether, assuming McCleskey does control, cause and

prejudice exist to excuse his failure to raise these claims earlier.

Nevertheless, even if we construe statements in Rehbein's pleadings and

briefs as reasons for his failure to raise these claims, none of these

statements demonstrate the kind of external impediment required to

establish cause. See McCleskey, 499 U.S. at 497. Nor has Rehbein

presented evidence of actual innocence sufficient to meet the miscarriage

of justice exception. Accordingly, Rehbein is, as a matter of law, unable

to overcome the bar of the abuse of the writ doctrine. The district court

therefore properly dismissed Rehbein's new claims as abusive.

B. Claim 5(b)

Rehbein next argues that the district court erred in dismissing

claim 5(b) for failure to present that claim in its current form to the

state courts. In the interest of comity, we have held that "the same facts

and legal arguments must be present in both the state and federal claims

or federal review is barred." Bolder v. Armontrout, 921 F.2d 1359, 1364

(8th Cir. 1990), cert. denied, 502 U.S. 850 (1991). Rehbein admits that

his attorney failed to argue in his state postconviction proceeding that

Rehbein had never been informed of his right to a direct appeal, that no

library materials were available to him, and that he was refused the

assistance of a legal aide. Rehbein therefore concedes that claim 5(b) as

it presently exists was procedurally defaulted in state court.

Nevertheless, Rehbein contends that he has met the cause and prejudice

standard required to excuse his procedural default. The state, in turn,

notes that Rehbein deliberately
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relinquished his right to assert denial of direct appeal as a ground for

habeas relief by dismissing Rehbein II with prejudice. Thus, the state

argues that claim 5(b) should have been dismissed with Rehbein's other

claims in Rehbein III as an abuse of the writ. Alternatively, the state

contends that claim 5(b) was procedurally defaulted and not excused by

either cause and prejudice or a miscarriage of justice. 

We need not address whether claim 5(b) should have been dismissed at

an earlier stage below because we conclude that, in any event, claim 5(b)

was properly dismissed due to Rehbein's inability to overcome his

procedural default of that claim. Federal habeas review of procedurally

defaulted claims is barred "unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result

in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S.

722, 750 (1991). Rehbein has not made either showing here.

Rehbein argues that the attorney appointed to represent him in the

appeal of his state postconviction action was ineffective. He alleges that

this counsel failed to communicate with Rehbein and failed to adequately

investigate the circumstances surrounding his incarceration in order to

discover the factors affecting his ability to launch a direct appeal of his

conviction and sentence. Unfortunately for Rehbein, these allegations fail

to excuse his procedural default. Attorney ineffectiveness "will

constitute cause only if it is an independent constitutional violation,"

id. at 755, and it is now well settled that there is no constitutional

right to an attorney in state postconviction proceedings. See id. at 752;

Nolan v. Armontrout, 973 F.2d 615, 616-17 (8th Cir. 1992). Thus, even if

Rehbein's postconviction counsel was ineffective, his deficient performance

cannot rise to the level of an independent constitutional violation.

Coleman, 501 U.S. at 757. This is true even if the state postconviction

proceeding was Rehbein's first
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real opportunity to argue that he had been denied his right to a direct

appeal. Nolan, 973 F.2d at 617. Thus, Rehbein has failed to demonstrate

adequate cause for his procedural default. 

Rehbein has similarly failed to allege grounds indicating that a

fundamental miscarriage of justice will result if he is not afforded a

hearing on claim 5(b). As we have often noted, the fundamental miscarriage

of justice exception is a narrow one "`concerned with actual as compared

to legal innocence.'" Nolan, 973 F.2d at 617 (quoting Sawyer v. Whitley,

505 U.S. 333, 339 (1992)). Rehbein has failed to allege facts indicating

that a constitutional violation has "probably resulted" in the conviction

of an innocent person. Schlup v. Delo, 115 S. Ct. 851, 867 (1995). He

argues only that he will never have his day in court if we do not reinstate

claim 5(b). This assertion falls short of meeting the miscarriage of

justice exception. Accordingly, the district court did not err in

dismissing claim 5(b).

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district

court. 

A true copy.

Attest:

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