                                   ___________

                                   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'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, 455 N.W.2d 821 (Neb. 1990).




      1
      The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, adopting the recommendations of the
Honorable David L. Piester, United States Magistrate Judge for the
District of Nebraska.
      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.




      2
      Rehbein's new grounds for relief included: 1) his guilty
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.

                                     -2-
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




                                    -3-
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,   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).




        3
       Rehbein does not challenge the court's finding that claim
5(b) had evolved into a claim which had never been presented to the
state courts.

                                       -4-
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.4      As the United States Supreme Court has often noted,
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




       4
       Congress recently amended the statutes governing petitions
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.

                                     -5-
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.




                                           -6-
     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




                                      -7-
for relief.    Furthermore, although the language of 28 U.S.C. § 2244(b)
provides some support for Rehbein's argument,5 the Court's decision in
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




     5
      Prior to the recent amendments, section 2244(b) provided:

     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).


                                   -8-
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




                                           -9-
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




                                          -10-
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.




                                     -11-
