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

### for the District of Nebraska, adopting the recommendations of the Honorable David L. Piester, Un ited 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.

Ca ry Nelson Rehbein appeals the district court's dismissal of hi s 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 m otion for postconviction relief in state court. The stat e district court deniedrelief, and the Nebraska Supreme Court affirmed the denial in State v. Rehbein , 455 N.W.2d 821 (Neb. 1990).

### Rehbe in's new grounds for relief included: 1) his guilt y 2 

### plea was unlawfully induced; 2) he was incompetent at the time he entered his plea; 3) his guilty plea was not knowingly an d voluntarily given; 4) his trial counsel was ineffective; and6) the prosecution failed to disclose favorable evidence.
-2- Thereafte r, Rehbein filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254 (Rehbein I). The district cour t dismissed that petiti on without prejudice to allow Rehbein to exhaust his available state remedies. Rehbein I is not rele vant to the issues in this appeal. In 1990, how ever, Rehbein filed a second federal habeas petition (Rehbein II). In his petition, Rehbein alleged: 1) his trial counsel was ineffective because h e 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 prejud ice. Attached to that motion was Rehbein's handwritten lette r stating, "I am instructing my attorney Mr. Dana V. Baker to discontinu e this legal action in regards to CV90L-259 Cary N. Rehbein v. John Dahm et al. I un derstand that dismissal means I can never bring up this cas e again." The letter was signed by Rehbein and witnessed by Mr. Baker. A magistrate judge sust ained 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 ne w claims. Rehbein also renewed his c laim that he had been denied the right

2 to a direct appeal in the Nebraska courts.

### -3-

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 no t ap peal and did not inform him of the time he had for filing a direc t appeal; b) he was in isolation for 91 days, during which time his time fo r appeal ra n; and c) he was having black-outs during the time allowed fo r 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, t he district court agreed. The court determined that all but one of the claims asserted in Rehbein II I were claims that Rehbein had ine xcusably failed to include in his earlier habeas petition, an d accord ingly 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 doc trine. According to the court, Rehbein's allegation that he had been deni ed the right to a direct appeal due to his isolation had previously been presented in Rehbein II. The court concluded that suc h
a repetiti ve claim was precluded in a subsequent petition only if th e original claim had be en determined "on the merits" in a prior proceeding. Since Rehbein II had been dismissed with prejudice without a hearing on th e merits, the court held that Rehbein was not barred from asserting clai m 5(b) in Rehbein III, and scheduled that claim for further briefing.
In May 1995, the court considered the parties' additional submi ssions with respect to claim 5(b). By that time, Rehbe in's position with respect to that claim had sig nificantly changed. The court noted that claim 5(b)
was fac ially identical to a claim Rehbein had made in Rehbein II: bot h claims alleged that Rehbein had been denied a direct appeal due to hi s placement in isolation for the duration of his a ppeal time. Nevertheless, the factual underpinn ings of the two claims were substantially different. Specifically, in briefing claim 5(b) of Rehbein III, Rehbein no longe r argued that he had been physically prevented from perfecting

### Rehbein does not challenge the court's finding that clai m 3 

### 5(b) had evolved into a claim which had never been presentedto the state courts. -4- his direct appeal. I nstead, Rehbein contended that he was never informed of his right to appeal, that no library material s were available to him in his isolation, and that prison staff denied seve ral of his requests to see a legal aide.
Because Rehbein no longer alleged th at he was denied a direct appeal due to his being placed in isolation, the distri ct court held that Rehbein had abandoned that ground for habeas relief. Moreover, the court found tha t the claim the petitioner did brief--predicated on his attorney's failure to inform him of his right to appeal, the unavailability of librar y materials, and the re fusal of the prison staff to honor his request for a legal aide--had never been presented to the stat e court. Accordingly, the court found the claim to be procedurally defaulted. Since Rehbein could not demonstrate cause and prejudice for his default or a fundamenta l miscarriage of justic e, 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 dism issing the claims presented for the first time in Rehbein III. Rehbein als o
asse rts that his procedural default on claim 5(b) was excused. Fo r 3 affirmance, the appellees argue that all of Rehbein's claims should have been d ismissed as abusive. Alternatively, the state contends tha t Rehbein's new claims were properly dismissed for abuse of the writ and tha t Rehbein failed to establish grounds for excusing his procedural default of claim 5(b).

### Co ngress recently amended the statutes governing petition s 4 

### for writ of habeas corpus. Antiterrorism and Effective Deat h Penalty Act of 1996, Pub. L. No. 104-132, 1996 U.S.C.C.A.N. (11 0 Stat.) 1214 (amending 28 U.S.C . §§ 2244, 2254, and 2255). The new Act makes substantive and procedural changes which coul d conceivably affect our review of this case. Although this cour t has not yet determined to what extent the new Act applies t o noncapital cases pending on ap peal, the parties seem to agree that its provisions should not be a pplied to Rehbein's appeal. Because Rehbei n's petition would fail under any plausible application o f the ne w Act as well as under prior law, however, we need no t determine whether the new Act applies to this appeal.
-5- II. DISCUSSION

Resolution of this case requires an interpretation of the variou s
cases and statutes governing the filing of successive petitions for writ of h abeas corpus. As the United States Supreme Court has often noted , 4 ordinary principles of res judicata and collateral estoppel do not strictl y 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 an d judici al economy, federal courts are often barred from considering th e merits of claims raised in a second or subsequen t federal habeas petition. Washington v. Delo , 5 1 F.3d 756, 759 (8th Cir.), cert. denied , 116 S. Ct. 205 (1995). In determining when such a bar applies, we are guided not onl y by the statutory stan dards 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 ow n equitable powers. See McCleskey v. Zant , 499 U.S. 467 (1991).

A. New Claims

Rehbein first contends that the district court erred in dismissin g
as abusive the claims raised for the first time in Rehbein III. I n McCleskey v. Zant , the United States Supreme Court announced the principle s that govern abuse of the writ claims. There, a state prisoner challenged the constitutionality of his

### -6-

conviction in various state postconviction proceedings and in two federal habeas petitions. Mc Cleskey's second federal habeas petition contained a ground fo r relief not raised in his first federal habeas petition. 49 9 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 Supre me Court rejected McCleskey's argument. Tracing the history of the abuse of the writ doctrine, the C ourt held that "[a]buse of the writ is not confi ned to instances of deliberate abandonment." Id. at 489. Instead, "a petitioner can abuse the writ by raising a claim in a subsequent petition t hat 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 considere d
on the merits unless the petitioner demonstrates either cause for hi s failure to raise them earlier and resulting prejudice, or demonstrates tha t
a fundamental miscarriage of justice will result if the claim is not heard

. Id. at 493-94; see also Pitts v. Norris , 85 F.3d348, 350 (8th Cir. 1996).

In arguing for reversal of the district court's order, Rehbei n asserts that the rules established in McCleskeydo not govern his case

. According to Rehbein, the McCleskey principles apply only when a prio r habeas petition was determined "on the merits." Where, as here, an earlie r petition is dismissed without an evidentiary hearing, Rehbein contends tha t McCleskey

does not co ntrol. Instead, Rehbein urges us to look to Sanders

v. United States . In Sanders , a petitioner's second habeas claim, which in cluded one new ground for relief, was allowed to proceed to a n evidentiary hearing b ecause his first petition had been dismissed without a hearing on the merits.

### -7- This argument is without merit. First, nothing in McCleskey su ggests 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 broa d principles, emphasizing overriding interests of finality an d judicial economy in federal habeas corpus cases. Its holding did not turn
on the fact that McCleskey's first federal habeas petition had been decide d on the merits.

Sande rs is likewise unavailing to Rehbein. In Sanders , the cour t speci fically stated that when a different ground is presented by a ne w habeas application, "full consideration of the merits of the ne w application can be avoided only if there has been an abuse of the writ." 373 U.S. at 17. Subsequent to Sanders , McCleske y 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 excusedby cause and prejudice or actual innocence. Thus, Sanders does not alter our conclusion tha t McCleskey

governs the issues in this case; rathe r, it must be read in view of McCleskey 's further refinement of the abuse of the writ doctrine.

Reh bein further argues that, notwithstanding McCleskey , both Rul e 9(b) of t he Rules Governing Habeas Corpus Cases and 28 U.S.C. § 2244(b ) dictate that new claims in a second or subsequent petition cannot be deeme d abusive un less the prior petition was determined "on the merits." W e disagree. Rule 9(b) provides:
[a] second or successive petition may be dismissed if the judge find s that it fails to allege new or different grounds fo r relief and the prior determination was on the merit s or, if new and different grounds are alleged, the judge finds that th e failure of the petitioner to assert those grounds in a prio r 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 aft er 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 . . . releas e from custody . . . on an appl ication for a writ of habeas corpus, a subsequen t applicationfor a writ of habeas corpus . . . need not b e entertained by a court of the United States . . . unless the application alleges and is predicated on a factual o r other ground not adjudicated on the hearing of th e earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has no t on the earlier application deliberately withheld th e newly asserted ground or otherwise abused the writ. 28 U.S.C. § 2244(b).

-8- for r elief. Furthermore, although the language of 28 U.S.C. § 2244(b ) provides some support for Rehbein's argument, the Court's decision i n 5 McCl eskey makes clear that 2244(b) does not fully define the federa l courts' discretion to entertain claims which could have been raised in an earlie r petition. In holding that a new federal habeas claim may b e abusive even if omitted due to inexcusable negle ct, the Court specifically rejected the notion that section 2244(b) provided the final word on abusiv e pet itions. As the Court noted, "Congress did not intend § 2244(b) t o fo reclose application of the court-announced principles defining an d 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 pro position that petitioners "should include all reasonably availabl e claims and grounds for relief in their first habeas petition." Washington , 51 F.3d at 760.

Havin g determined that McCleskey 's pronouncements on abuse of th e writ control this case, we must affirm the dismissal of the new claim s unless Rehbein can show cause for the failure to raise those

### -9-

claims and prejudice arising therefrom, or, in the alternative, fact s indicativ e of a fundamental miscarriage of justice. See id. Afte r reviewing the record, we conclude that Rehbein has failed to do so

. Initially, we note that throughout this appeal Rehbein has argued only tha t the McCleskey

cause and prejudice standards shou ld not apply to this case. He has not addressed whether, assuming McCleskeydoes control, cause and prej udice exist to excuse his failure to raise these claims earlier

. Nevert heless, even if we construe statements in Rehbein's pleadings an d briefs as reasons for his failure to raise these claims, none of thes e statements demonstrate the kind of external impediment required t o establish cause. See McCleskey , 499 U.S. at 497. Nor has Rehbei n 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 doc trine. The district court therefore properly dismissed Rehbein's new claims as abusive.

B. Claim 5(b)

Re hbein next argues that the district court erred in dismissin g claim 5 (b) for failure to present that claim in its current form to th e state courts. In the interest of comity, we have held that "the same fact s 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 libr ary materials were available to him, and that he was refused th e assistance of a legal aide. Rehbein therefore c oncedes that claim 5(b) as it p resently exists was procedurally defaulted in state court

. Nevertheless, Rehbein contends that he has met the cause and prejudic e standard required to excuse his procedural default. The state, in turn, notes that Rehbein deliberately

### -10-

relinquished his right to assert denial of direct appeal as a ground for habeas relief by dismissing Rehbein II with prejudice. Thus, the stat e argues that claim 5(b) should have been dismissed with Rehbein's othe r claims in Rehbein III as an abuse of the writ. Alternatively, the state contends that claim 5(b) was procedurally defaulted and not excused b y 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 belo w because we conclude that, in any event, claim 5(b)
was pr operly dismissed due to Rehbein's inability to overcome hi s proced ural default of that claim. Federal habeas review of procedurall y defaulted claims is b arred "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 resul t 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 th e appeal of his state postconviction action was ineffective. He alleges tha t this counsel failed to communicate with Rehbein and failed to adequately investigate the circumstances surrounding his incarceration in order t o discover the factors affecting his ability to launch a direct appeal of hi s conviction and sentence. Unfortunately for Rehbein, these allegations fai l to excuse his procedural default. Attorney ineffectiveness "wil l constitute cause only if it is an independent constitutional violation," id. at 7 55, and it is now well settled that there is no constitutiona l right to an attorney in state postconviction pro ceedings. 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 performanc e 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

### -11-

real op portunity to argue that he had been denied his right to a direc t 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 funda mental miscarriage of justice will result if he is not afforded a hearing on claim 5(b). As we have often noted, the fundamental miscarriag e 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 (19 92)). 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). H e argues only that he will never have his day in court if we do not reinstat e claim 5(b) . This assertion falls short of meeting the miscarriage o f justice exception. Accordingly, the district court did not err i n dismissing claim 5(b).

III. CONCLUSION

For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

Attest:

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