Perry McCullough v. Conrad Graber

Filing

Filed order and amended opinion (JEROME FARRIS, N. RANDY SMITH and TIMOTHY M. BURGESS). The opinion filed on May 10, 2013, is hereby AMENDED. An Amended Opinion is filed concurrently with this order. No petition for rehearing or rehearing en banc was filed within the original time period, and that time period has now expired. No subsequent petitions for rehearing or rehearing en banc shall be filed. (See Amended Opinion for full text) [8699018]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PERRY ADRON MCCULLOUGH ,
Petitioner-Appellant,

No. 11-16920

v.

D.C. No.
4:10-cv-00465FRZ

CONRAD M. GRABER, Warden,
Respondent-Appellee.

ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted
February 15, 2013—San Francisco, California
Filed May 10, 2013
Amended July 11, 2013
Before: Jerome Farris and N. Randy Smith, Circuit Judges,
and Timothy M. Burgess, District Judge.*
Opinion by Judge Burgess

*

The Honorable Timothy M. Burgess, D istrict Judge for the U.S.
District Court for the District of Alaska, sitting by designation.

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MCCULLOUGH V . GRABER
SUMMARY**

Habeas Corpus
The panel amended its opinion, filed on May 10, 2013.
In the amended opinion, 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.

COUNSEL
Thomas S. Hartzell, Tucson, Arizona, for the PetitionerAppellant.
Bruce M. Ferg (argued), Assistant U.S. Attorney; Christina
M. Cabanillas, Appellate Chief; John S. Leonardo, United
States Attorney, United States Attorneys’ Office, Tucson,
Arizona, for Respondent-Appellee.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORDER
The opinion filed on May 10, 2013, is hereby
AMENDED. An Amended Opinion is filed concurrently
with this order.
No petition for rehearing or rehearing en banc was filed
within the original time period, and that time period has now
expired. No subsequent petitions for rehearing or rehearing
en banc shall be filed.

OPINION
BURGESS, District Judge:
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.
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.

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§ 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 nonviolent 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 program because he would not have
served 75 percent of his sentence until March 2013.
McCullough internally appealed BOP’s decision, exhausting
his administrative remedies.
McCullough petitioned pro se for habeas relief in the
United States District Court for the District of Arizona. In his
petition, McCullough’s singular request concerned BOP’s
calculation of whether he had served 75 percent of his
sentence. See Petition, McCullough v. Graber (No. 10-cv465-FRZ) (No. 1) (“Petitioner is not challenging his
conviction or his sentence. He is merely challenging the
manner in which that sentence is being administered by the
BOP.”). On February 8, 2011, a magistrate judge issued a
report and recommendation (“R&R”), suggesting the district
court deny McCullough’s petition for two reasons: (1)
McCullough’s eligibility for the pilot program was within the
sound discretion of BOP; and (2) McCullough was not
eligible for the pilot program, as BOP correctly declined to
consider good time credits in calculating eligibility. In the
R&R, the magistrate judge noted that she agreed with the
reasoning in Izzo v. Wiley, 620 F.3d 1257, 1260 (10th Cir.

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2010), in which the Tenth Circuit concluded that, under a
plain language analysis of 42 U.S.C. § 17541, BOP is not
required to consider good time credits in evaluating eligibility
for the elderly offender pilot program. The district court
adopted the R&R.
Meanwhile, in September 2010, the elderly offender pilot
program was discontinued. Nevertheless, McCullough timely
appealed the district court’s order.
On appeal, McCullough argues that BOP miscalculated
his time served by refusing to take into account his good time
credits. McCullough further argues that his claim is
distinguishable from Izzo, because McCullough was
convicted prior to enactment of the Prisoner Litigation
Reform Act (“PLRA”), which affects the way good time
credits vest. McCullough acknowledges the termination of
the pilot program, but suggests that we should nevertheless
order BOP to recalculate his sentence and consider placing
him in home detention. The government responds that
McCullough’s appeal is moot because the pilot program was
discontinued, and that his claim also fails on the merits
because eligibility for the pilot program is within BOP’s
discretion, and because Congress did not intend that BOP
consider good time credits in its analysis of eligibility for the
pilot program.
II. Standard of Review
This court reviews de novo a district court’s denial of a
petition for writ of habeas corpus. Serrato v. Clark, 486 F.3d
560, 565 (9th Cir. 2007).

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III.

Discussion

A federal court lacks jurisdiction unless there is a “case or
controversy” under Article III of the Constitution. Pub. Util.
Comm’n of the State of Cal. v. Fed. Energy Reg. Comm’n,
100 F.3d 1451, 1458 (9th Cir. 1996). This controversy must
exist at all stages of the proceedings, including appellate
review, “and not simply at the date the action is initiated.” Id.
If a court is unable to render “effective relief,” it lacks
jurisdiction and must dismiss the appeal. Id.; Mujahid v.
Daniels, 413 F.3d 991, 995 (9th Cir. 2005) (“An appeal is
moot ‘when, by virtue of an intervening event, a court of
appeals cannot grant any effectual relief whatever in favor of
the appellant.’”) (citing Calderon v. Moore, 518 U.S. 149
(1996)).
The government argues that McCullough’s appeal is moot
because the pilot program to which he applied was terminated
in September 2010. McCullough argues that his appeal is not
moot because BOP retains the discretion to place him on
home detention or in a residential reentry center (“RRC”).1
We note that McCullough’s habeas petition did not request
this relief – his petition only requested reevaluation of his
eligibility for the pilot program, taking into account his good
time credits.2 See Petition, McCullough v. Graber (No. 10-

1

McCullough makes this argument in his initial pro se briefing, but it
is not raised in counsel’s supplemental briefing. After oral argument,
McCullough pro se filed two additional letters that also, in part, addressed
this issue. See Dkts, 45, 48. Because McCullough is represented by
counsel, we decline to consider the letters filed on March 11 and 25, 2013.
2

See U.S.C.S. § 2254, Rule 2, requiring that a petition “specify all the
grounds for relief available to the petitioner,” as well as “the relief
requested.”

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cv-465-FRZ) (No. 1). After termination of the pilot program,
McCullough did not amend his petition.
We conclude that McCullough’s appeal is moot. The
relief requested in his habeas petition is no longer available
because of the termination of the pilot program. See Abdala
v. Immigration and Naturalization Serv., 488 F.3d 1061,
1062–65 (9th Cir. 2007) (dismissing as moot habeas petition
after petitioner’s deportation where petition “challenged only
the length of his detention, as distinguished from the
lawfulness of the deportation order”). Due to termination of
the pilot program, “changes in the circumstances that
prevailed at the beginning of litigation have forestalled any
occasion for meaningful relief.” Gator.com Corp. v. L.L.
Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc)
(internal quotation marks omitted). Although we have
recognized numerous exceptions to the mootness doctrine,
none applies here. See Ctr. For Biological Diversity v. Lohn,
511 F.3d 960, 964–65 (9th Cir. 2007) (describing exceptions
to the mootness doctrine); Sierra Club Found. v. Dep’t of
Transp., 563 F.3d 897, 898 (9th Cir. 2009) (appeal moot and
did not fall into “yet evading review” exception to mootness;
court need not consider appeal of a notice of intent to create
a program that lost its funding to exist where any future
program would “present different questions”); Serrato, 486
F.3d at 565 (appeal not moot because although habeas
petitioner was released from prison, appeal “s[ought] relief in
the form of reduction of [petitioner’s] supervised release”);
Mujahid, 413 F.3d at 994–95 (same). Accordingly, we
dismiss McCullough’s appeal as moot.
DISMISSED.