Varun Narula v. John Yakubisin

Ninth Circuit

Varun Narula v. John Yakubisin

650 F. App'x 337

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 17, 2016

Docket15-55658

StatusUnpublished

Cited by1 cases

This text of 650 F. App'x 337 (Varun Narula v. John Yakubisin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Varun Narula v. John Yakubisin, 650 F. App'x 337 (9th Cir. 2016).

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Opinion

MEMORANDUM *

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.

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 (AFC-CA). 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, 71 S.Ct. 149, 95 L.Ed. 146 (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, 115 S.Ct. 851, 130 L.Ed.2d 808 (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 process of law, when the military courts have previously considered and rejected the same contentions.” (emphasis added)).

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM *

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.

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 (AFC-CA). 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, 71 S.Ct. 149, 95 L.Ed. 146 (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, 115 S.Ct. 851, 130 L.Ed.2d 808 (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 process of law, when the military courts have previously considered and rejected the same contentions.” (emphasis added)).

AFFIRMED.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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