94 F.3d 478
Cary Nelson REHBEIN, Appellant,
v.
Harold W. CLARKE; John Dahm, Appellees.
No. 95-3382.
United States Court of Appeals,
Eighth Circuit.
Submitted March 12, 1996.
Decided Aug. 27, 1996.
Rehearing Denied Nov. 1, 1996.
James G. Egley, Madison, NE, argued, for appellant.
Mark D. Starr, Lincoln, NE, argued (Don Stenberg, on the brief), for appellee.
Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
BEAM, Circuit Judge.
Cary Nelson Rehbein appeals the district court's1 dismissal of his 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, 235 Neb. 536, 455 N.W.2d 821 (1990).
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.2 Rehbein also renewed his claim that he had been denied the right to a direct appeal in the Nebraska courts. 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)