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McCullough v. Graber

May 10, 2013

PERRY ADRON MCCULLOUGH, PETITIONER-APPELLANT,
v.
CONRAD M. GRABER, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding D.C. No. 4:10-cv-00465-FRZ

The opinion of the court was delivered by: Burgess, District Judge

FOR PUBLICATION

Argued and Submitted February 15, 2013--San Francisco, California

Before: Jerome Farris and N. Randy Smith, Circuit Judges, and Timothy M. Burgess, District Judge.*fn1

SUMMARY*fn2

Habeas Corpus

The panel dismissed as moot a 28 U.S.C. § 2241 habeas corpus petition requesting reconsideration of the Bureau of Prisons' rejection of petitioner's application to the Second Chance Act's elderly offender pilot program, which no longer exists.

The Second Chance Act of 2007 allowed the Bureau to remove eligible elderly offenders from a Bureau facility and place them on home detention. The panel held that petitioner's appeal is moot because the relief requested in his habeas petition is no longer available.

The panel further held that, although its decision does not foreclose that there may be circumstances under which a habeas petitioner who is denied entry to a program that no longer exists may obtain relief, petitioner's claim in this case fails on the merits. Petitioner contended that he was eligible for the program if the Bureau took into account his good time credits. The panel agreed with the Tenth Circuit's decision in Izzo v. Wiley, 620 F.3d 1257 (10th Cir. 2010), which held that under a plain language analysis of 42 U.S.C. § 17541, the Bureau is not required to consider good time credits in evaluating eligibility for the elderly offender pilot program.

OPINION

Perry A. McCullough brought a habeas petition requesting reconsideration of the Bureau of Prisons' rejection of his application to the Second Chance Act's elderly offenders pilot program, which no longer exists. The district court, considering the merits of the case, denied McCullough's habeas petition. We lack jurisdiction over the instant appeal because it is moot. But, even if we had jurisdiction, McCullough's claim would fail on the merits.

I. Facts and Procedural History

In July 1990, McCullough was convicted by a jury of drug trafficking offenses and sentenced to 380 months imprisonment. On April 9, 2008, the Second Chance Act of 2007, Pub. L. No. 110-199 (the "SCA") was signed into law. The SCA included the "[e]lderly and family reunification for certain nonviolent offenders pilot program," which allowed BOP to remove "eligible elderly offenders" from a BOP facility and place them on home detention. See 42 U.S.C. § 17541(g)(1). There are several requirements to qualify as an "eligible elderly offender," including that the offender be at least 65 years of age, serving a non-life sentence for a non-violent and non-sex offense crime, and "has served the greater of 10 years or 75 percent of the term of imprisonment to which the offender was sentenced." Id. at § 17541(g)(5).

McCullough applied to the elderly offender pilot program in early 2009, calculating that, if BOP considered his good time credits, he would be eligible for the pilot program in March 2010. BOP declined to consider McCullough's good time credits and denied McCullough's request, finding him ineligible for the pilot ...


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