Varun Narula v. John Yakubisin , 650 F. App'x 337 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VARUN K. NARULA, Captain, No. 15-55658
Petitioner - Appellant, D.C. No. 3:13-cv-03100-JAH-
KSC
v.
JOHN YAKUBISIN, Commander, Naval MEMORANDUM*
Consolidated Brig, Miramar, CA,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted May 4, 2016
Pasadena, California
Before: FISHER, M. SMITH and NGUYEN, Circuit Judges.
Petitioner Varun K. Narula appeals the district court’s judgment dismissing
his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We have
jurisdiction under 28 U.S.C. §§ 1291, 2253(a), we review de novo, see Sacora v.
Thomas, 628 F.3d 1059, 1065 (9th Cir. 2010), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Narula’s constitutional claims are barred because he failed to exhaust his
remedies in the military courts. Narula did not raise the issue of unconstitutional
joinder either in the military trial court or on direct appeal in the United States Air
Force Court of Criminal Appeals (AFCCA). He did challenge the constitutionality
of Article 120 of the Uniform Code of Military Justice in the military trial court,
but he failed to raise the issue on direct appeal in the AFCCA.
“Military prisoners must exhaust military remedies before seeking relief in
federal court.” Davis v. Marsh, 876 F.2d 1446, 1449 (9th Cir. 1989) (citing Gusik
v. Schilder, 340 U.S. 128, 131-32 (1950)). Absent a showing of cause and
prejudice, constitutional challenges to court-martial convictions are waived when
not raised on direct appeal in the military courts. See id. at 1448-50. Narula does
not attempt to establish cause and prejudice, and his argument that enforcement of
the exhaustion requirement would result in a fundamental miscarriage of justice is
unavailing absent any new evidence of actual innocence. See Schlup v. Delo, 513
U.S. 298, 314-17, 324 (1995). Finally, Narula’s reliance on Calley v. Callaway,
519 F.2d 184 (5th Cir. 1975), is misplaced because that case concerns the scope of
federal habeas review of previously exhausted claims. See id. at 199 (“We are
more concerned here . . . with the extent to which federal courts may review the
validity of claims that errors in the military trial deprived the accused of due
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process of law, when the military courts have previously considered and rejected
the same contentions.” (emphasis added)).
AFFIRMED.
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