Perry McCullough v. Conrad Graber

Filing

FILED OPINION (JEROME FARRIS, N. RANDY SMITH and TIMOTHY M. BURGESS) DISMISSED. Judge: TMB Authoring. FILED AND ENTERED JUDGMENT. [8623968]

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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.

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
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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SUMMARY**

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.

**

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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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.

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. 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.

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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
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 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 the court 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 and Jurisdiction
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). A court lacks jurisdiction, however,
when there is no active controversy. Pub. Util. Comm’n of

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the State of Cal. v. Fed. Energy Reg. Comm’n, 100 F.3d 1451,
1458 (9th Cir. 1996).
III.

Discussion
A. McCullough’s Claim is Moot.

A federal court lacks jurisdiction unless there is a “case or
controversy” under Article III of the Constitution. Pub. Util.
Comm’n, 100 F.3d at 1458. 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

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 M arch 11 and 25, 2013.

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time credits.2 See Petition, McCullough v. Graber (No. 10cv-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”). A request to amend
may have been appropriate, but as discussed below,
McCullough’s claim fails on the merits, as well.
Accordingly, this 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 succeed,
but taking into consideration McCullough’s limited habeas
petition and the unique circumstances presented here, we
dismiss his appeal as moot.3

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.”
3

W ith respect to the mootness argument, the government’s opposition
brief relies exclusively on Sierra Club Foundation v. Department of
Transportation, 563 F.3d 897, 898 (9th Cir. 2009). In Sierra Club, the
Ninth Circuit held that, because Congress prohibited the funding of a
certain type of pilot program, a petition to the court to review a notice of
intent to create a program of that type was moot. Id. The appeal was also
moot because the party creating the program had since decided not to
create it. Sierra Club is inapposite – that case concerned creation of a
program, not admission to a program, and it also did not concern the
special circumstances of a habeas petitioner. In the briefing before this
court, neither party discusses any Ninth Circuit cases concerning when a

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B. McCullough’s Claim Fails on the Merits.

McCullough argues that when BOP calculated his
eligibility for the pilot program, it improperly failed to take
into account his good time credits.
McCullough
acknowledges that other courts have analyzed this issue and
determined that good time credits do not apply for purposes
of determining eligibility for the elderly offender pilot
program. However, he claims that his case is distinguishable
because those cases concerned post-PLRA convictions,
whereas McCullough was convicted pre-PLRA.
McCullough’s argument is unpersuasive.
This is a novel issue in the Ninth Circuit, but we agree
with the sound reasoning set forth by the Tenth Circuit in
Izzo, 620 F.3d at 1260–61. In Izzo, the Tenth Circuit applied
a plain language analysis of the statute to find that BOP ought
not consider good time credits in determining eligibility for
the elderly offender pilot program. Id. See also Collins v.
Gee W. Seattle LLC, 631 F.3d 1001, 1004–05 (9th Cir. 2011)
(“The starting point for our interpretation of a statute is
always its plain language . . . . [W]e may not read a statute’s
plain language to produce a result contrary to the statute’s
purpose or lead to unreasonable results.”) (quotations and
citations omitted).
Section 17541(g)(5) states that, to qualify as an “eligible
elderly offender,” an inmate must “ha[ve] served the greater

habeas petitioner’s claim might be moot. W hile there is no case directly
on point, such habeas cases are more analogous to the case at hand. See,
e.g., Serrato, 486 F.3d at 565 (appeal not moot because petitioner “seeks
relief in the form of reduction of [petitioner’s] supervised release”);
Mujahid, 413 F.3d at 994–95 (same).

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of 10 years or 75 percent of the term of imprisonment to
which the offender was sentenced.” 42 U.S.C. § 17541(g)(5).
In Izzo, the Tenth Circuit explained:
[T]he phrase ‘term of imprisonment to which
the offender was sentenced’ unambiguously
refers to the term imposed by the sentencing
court, without any consideration of good time
credit. . . . Congress unambiguously used the
phrase ‘to which the offender was sentenced’
to modify ‘term of imprisonment’ in § 17541.
With this modification clause, the ‘term of
imprisonment’ unmistakably refers to the term
imposed by the sentencing court.
620 F.3d at 1260. Other courts have come to the same
conclusion, and there are no decisions to the contrary. See,
e.g., Carreras v. U.S. Bureau of Prisons, 446 F. App’x 514,
515–16 (3d Cir. 2011) (“plain language of the statute
unambiguously defines a term of imprisonment as that to
which an inmate is sentenced, and does not contemplate
inclusion of [good conduct time]”); Cavanaugh v. Johns, 459
F. App’x 261, 261–62 (4th Cir. 2011) (affirming district
court’s order, which found BOP did not err “in refusing to
consider [petitioner’s] vested good conduct time in
calculating his eligibility for the Elderly Offender Home
Detention Pilot Program”); Wright v. Haynes, 410 F. App’x
262, 264 (11th Cir. 2011) (“term of imprisonment to which
the offender was sentenced . . . does not include any good
conduct time”).
McCullough argues that his pre-PLRA conviction status
makes his situation distinct from these cases. This is because,
for persons convicted prior to implementation of the PLRA,

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good time credits vest at the end of each year.4 In
comparison, for those convicted post-PLRA, good time
credits “vest on the date the prisoner is released from
custody.” 18 U.S.C. § 3624(b)(2). However, this does not
change the plain language analysis of the SCA, which
considers the amount of time to which a prisoner was
sentenced, not how much time the prisoner has served, or
how much time remains on the prisoner’s sentence, either
with or without taking into account good time credits.
Furthermore, even if McCullough were eligible for the
pilot program, his admission to the program would be at
BOP’s discretion. Section 17541(g)(1)(B) clearly states that,
under the program, “the Attorney General may release some
or all eligible elderly offenders from the Bureau of Prisons
facility to home detention.” See 42 U.S.C. § 17541(g)(1)(B)
(emphasis added).
For the foregoing reasons, even if McCullough’s appeal
were not moot, his claim would fail on the merits.
DISMISSED.

4
Prior to the 1996 amendments, 18 U.S.C. § 3624 stated: “A prisoner
. . . shall receive credit toward the service of the prisoner’s sentence,
beyond the time served, of fifty-four days at the end of each year of the
prisoner’s term of imprisonment, beginning at the end of the first year of
the term . . . .”

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