                           NOT FOR PUBLICATION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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