Exhaustion

I have commented on this before–post-CAAF habeas corpus, but a new case from the 9th is time for a reminder.

Narula v. Yakubisin (CO, NAVCONBRING Miramar), No. 15-55658 (9th Cir. 17 May 2016).

It is common for the military appellant to think about federal court once their military appeal is complete.  The route to federal court is through a federal habeas corpus proceeding, in accordance with 28 U.S.C. § 2241.  It is rare to get past a motion to dismiss, let alone win on the merits.

In one page, the 9th disposed of Narula’s petition–correctly stating the law.

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.

This is a reminder to ensure that all issues are properly litigated before the CCA and through petition to CAAF, even if the issue is filed in accordance with United States v. Grostefon.

Unfortunately, the various CCA/CAAF opinions are not publicly available.

As a practical matter, you need to have a serious constitutional issue which you have litigated before the court of criminal appeals (CCA), petitioned the Court of Appeals for the Armed Forces (CAAF), had a grant from CAAF, a decision from CAAF, a denial of a petition for a writ of certiorari to the U.S. Supreme Court, and then a very good argument that the CAAF’s adverse decision is constitutionally infirm.  Without this, you do not have a hope of getting past a motion to dismiss in federal court.