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 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.3 For affirmance, the appellees argue that all of Rehbein's claims should have been dismissed as abusive. Alternatively,