Friday, May 10, 2013

McCullough v. Graber, No. 11-16920 (9th Cir. May 10, 2013) (Burgess, D.J., with Farris and N.R. Smith, JJ.)

The Ninth Circuit dismissed as moot an appeal from an order denying a federal prisoner's § 2241 habeas petition challenging BOP's rejection of his application to the Second Chance Act's pilot program for elderly offenders, which no longer exists.

The petitioner contended that, although BOP discontinued the SCA's pilot program around the time the district court denied his habeas petition, his appeal was not moot because the BOP retained the discretion to place him in a halfway house as the end of his sentence approached (in March 2013). The court held that the appeal was moot because the petitioner did not request this kind of relief in his § 2241 petition and did not amend it to request that relief once the pilot program was discontinued.

In an alternative merits ruling, the court agreed with the Tenth Circuit's decision in Izzo v. Wiley, 620 F.3d 1257 (10th Cir. 2010), which held that BOP is not required to consider early release credits in connection with an application for the pilot program. (If the BOP had done so, the petitioner would have been eligible for early release about three years earlier than March 2013.)

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/10/11-16920.pdf

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