McCullough v. Graber, No. 11-16920 (9th Cir. 2013)
Annotate this CasePetitioner, convicted of drug trafficking offenses and sentenced to 380 months imprisonment, brought a habeas petition requesting reconsideration of the Bureau of Prisons' (BOP) rejection of his application to the Second Chance Act's, Pub. L. No. 110-199, elderly offenders pilot program. The district court, considering the merits of the case, denied the petition. The court concluded that the appeal was moot because the relief requested was no longer available due to the termination of the pilot program. On the merits, even if petitioner were eligible for the pilot program, his admission to the program would be at the BOP's discretion. Accordingly, the court dismissed the petition.
Court Description: 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.
The court issued a subsequent related opinion or order on July 11, 2013.
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