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Cancellation of BOP Elderly Offender Pilot Program Moots Appeal

Cancellation of BOP Elderly Offender Pilot Program Moots Appeal


by Michael Brodheim


On July 11, 2013, in an amended ruling, the Ninth Circuit dismissed as moot the appeal of a federal prisoner who had been denied entry into a pilot program that allowed the Bureau of Prisons (BOP) to release certain elderly offenders from BOP facilities and place them on home detention, because the program had been discontinued.

The Second Chance Act of 2007 created a pilot program which allowed the BOP, in its discretion, to place certain nonviolent elderly offenders on home detention after they had served the greater of 10 years or 75% of their term of incarceration. [See: PLN, Feb. 2009, p.8].

BOP prisoner Perry A. McCullough applied to the elderly offender pilot program in 2009. McCullough, who had been sentenced in 1990 to 380 months in federal prison for drug trafficking, calculated that he would be eligible for the program in March 2010 if the BOP took into account his good time credits.

The BOP declined to consider McCullough’s good time credits, however, and found he would not be eligible for the pilot program until March 2013, once he had served 75% of his sentence. After exhausting his administrative remedies, McCullough filed a pro se petition for habeas relief in federal court in Arizona. The district court denied his petition because, under a plain language analysis of the applicable statute, the BOP was not required to consider good time credits when evaluating whether a prisoner was eligible for the program.

Meanwhile, in September 2010, the elderly offender pilot program authorized under the Second Chance Act was discontinued.

The Ninth Circuit held that the cancellation of the program divested it of jurisdiction, and dismissed McCullough’s appeal as moot since the relief requested in his petition was “no longer available because of the termination of the pilot program.” The Court of Appeals found no applicable exceptions to the mootness doctrine in this case; hence, the district court’s dismissal of the habeas petition was affirmed. See: McCullough v. Graber, 726 F.3d 1057 (9th Cir. 2013).


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Related legal case

McCullough v. Graber