FILED

United States Court of Appeals

Tenth Circuit

July 24, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARIO SERNA,

 Petitioner - Appellant,

v.

COMMANDANT, USDBLEAVENWORTH,

 Respondent - Appellee.

No. 15-3055

(D.C. No. 5:13-CV-03106-RDR)

(D. Kan.)

ORDER AND JUDGMENT*

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.

When Mario Serna, a former aviation machinist’s mate in the U.S. Navy,

pleaded guilty to sexual assault charges in violation of the Uniform Code of

Miliary Justice, a court-martial sentenced him to dishonorable discharge and

fourteen years in prison. Mr. Serna now seeks habeas relief, alleging deficiencies

in his conviction. But because he did not raise any of these asserted deficiencies

*

 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument. This order and

judgment is not binding precedent except under the doctrines of law of the case,

res judicata, and collateral estoppel. It may be cited, however, for its persuasive

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
in his appeal to the Navy–Marine Corps Court of Criminal Appeals, a procedural

prerequisite to seeking habeas relief in federal court, the district court noted that it

had to deny his petition unless he could demonstrate “cause excusing the

procedural default and actual prejudice resulting from the error.” Lips v.

Commandant, 997 F.2d 808, 812 (10th Cir. 1993). Mr. Serna now asks us to

reverse the district court’s judgment that he failed to make this necessary showing.

Before reaching that question we pause to consider our power to do so. 

Normally a federal prisoner seeking collateral relief must proceed under 28 U.S.C.

§ 2255 and obtain a certificate of appealability before we may review an adverse

district court judgment. See 28 U.S.C. § 2253(c). But Mr. Serna is a military

prisoner entitled to pursue habeas relief from his conviction under 28 U.S.C.

§ 2241, and the COA requirement does not apply in § 2241 proceedings. See

Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011); McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). Neither does the fact that Mr.

Serna is currently incarcerated in Florida present an impediment to our review. 

True, jurisdiction for § 2241 proceedings normally lies only in the petitioner’s

“district of confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004). But Mr.

Serna was confined in the district where he filed his petition at the time of filing

(Kansas), and “[i]t is well established that jurisdiction attaches on the initial filing

for habeas corpus relief” and “is not destroyed by a transfer of the petitioner.” 

Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir. 1985).

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Satisfied that we may hear Mr. Serna’s appeal from a ruling properly issued

in federal court in our circuit, we turn to its merits — or, at least, to the merits of

his argument that he did not procedurally default his underlying claims. Mr. Serna

argues that he suffered mental health issues that should excuse his failure to

pursue his claims before the military’s appellate courts. In this vein, he provides

evidence that he was hospitalized for twelve days in January 2009 for mental

health problems. But Mr. Serna’s conviction — and the time for pursuing his

appeal — came almost a year after he was discharged from the hospital. In the

intervening time, military psychiatrists twice evaluated him and twice deemed him

fit to stand trial and participate in his defense. Although Mr. Serna now alleges

that the military never refilled his prescriptions following his release, he has not

demonstrated that any mental health issues were sufficiently debilitating at the

time of his appeal to excuse his failure to pursue all his claims before the

NMCCA. Neither has he explained how those issues prevented him from assisting

his counsel in raising any and all viable claims in the appeal. We therefore agree

with the district court that Mr. Serna has not demonstrated a lawful cause excusing

his failure to pursue his present claims before the military’s appellate courts. To

the extent we can discern in Mr. Serna’s appeal a request that we reverse the

district court’s denial of discovery, we agree that no discovery was warranted for

the reasons given by the district court.

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Affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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