McCullough v. Graber

A habeas corpus petition under 28 U.S.C. § 2241 asking the Bureau of Prisons to reconsider a rejected application to the Second Chance Act’s now defunct elderly offender pilot program is moot because the relief requested is no longer available.

A jury convicted Perry McCullough of drug trafficking offenses in July 1990; he was sentenced to 380 months in prison. The Second Chance Act of 2007 (“the Act”) became law on April 9, 2008. The Act permitted the Bureau of Prisons (“BOP”) to take “eligible elderly offenders” from BOP facilities, instead placing these offenders on home detention. Among several qualification requirements set forth by the Act to be “eligible” was that the offender had “served the greater of 10 years or 75 percent of the term of imprisonment to which the offender was sentenced.” McCullough applied the program under the Act in early 2009. McCullough determined his eligibility by considering his good time credits. BOP refused to consider those credits, denying McCullough’s application. McCullough appealed BOP’s decision until his administrative remedies were exhausted. McCullough petitioned for habeas relief. A magistrate judge suggested via a report and recommendation that the court deny McCullough’s petition. The district court accepted the report and recommendation. The elderly offender pilot program was deactivated in September 2010, but McCullough properly appealed the district court’s order. McCullough insisted on appeal to the Ninth Circuit that the BOP miscalculated the time he had served. He argued that, since he was convicted before the Prisoner Litigation Reform Act, his good time credits vested differently and favorably to his application. The Ninth Circuit held McCullough’s appeal was moot because the relief he requested in his petition was no longer available. In so ruling, the panel did not foreclose other potential circumstances in which a habeas petitioner denied entry to a currently defunct program may succeed – noting the “unique circumstances presented” in this case. However, the panel noted that McCullough would fail on the merits regardless. DISMISSED.