The Honorable Timothy M. Burgess, District Judge for the U.S. *

District Court for the District of Alaska, sitting by designation. 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PERRY ADRON MCCULLOUGH,

Petitioner-Appellant,

v.

CONRAD M. GRABER, Warden,

Respondent-Appellee.

No. 11-16920

D.C. No. 

4:10-cv-00465-

FRZ

ORDER AND

AMENDED

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

Amended July 11, 2013

Before: Jerome Farris and N. Randy Smith, Circuit Judges,

and Timothy M. Burgess, District Judge.*

Opinion by Judge Burgess 
2 MCCULLOUGH V. GRABER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Habeas Corpus

The panel amended its opinion, filed on May 10, 2013. 

In the amended opinion, 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.

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.
MCCULLOUGH V. GRABER 3

ORDER

The opinion filed on May 10, 2013, is hereby

AMENDED. An Amended Opinion is filed concurrently

with this order.

No petition for rehearing or rehearing en banc was filed

within the original time period, and that time period has now

expired. No subsequent petitions for rehearing or rehearing

en banc shall be filed.

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. 

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.
4 MCCULLOUGH V. GRABER

§ 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 nonviolent 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.
MCCULLOUGH V. GRABER 5

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 we 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

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). 
6 MCCULLOUGH V. GRABER

McCullough makes this argument in his initial pro se briefing, but it

1

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 March 11 and 25, 2013.

 See U.S.C.S. § 2254, Rule 2, requiring that a petition “specify all the 2

grounds for relief available to the petitioner,” as well as “the relief

requested.” 

III. Discussion

A federal court lacks jurisdiction unless there is a “case or

controversy” under Article III of the Constitution. Pub. Util.

Comm’n of the State of Cal. v. Fed. Energy Reg. Comm’n,

100 F.3d 1451, 1458 (9th Cir. 1996). 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

time credits. See Petition, McCullough v. Graber (No. 10- 2
MCCULLOUGH V. GRABER 7

cv-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”). Due to termination of

the pilot program, “changes in the circumstances that

prevailed at the beginning of litigation have forestalled any

occasion for meaningful relief.” Gator.com Corp. v. L.L.

Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc)

(internal quotation marks omitted). Although we have

recognized numerous exceptions to the mootness doctrine,

none applies here. See Ctr. For Biological Diversity v. Lohn,

511 F.3d 960, 964–65 (9th Cir. 2007) (describing exceptions

to the mootness doctrine); Sierra Club Found. v. Dep’t of

Transp., 563 F.3d 897, 898 (9th Cir. 2009) (appeal moot and

did not fall into “yet evading review” exception to mootness;

court need not consider appeal of a notice of intent to create

a program that lost its funding to exist where any future

program would “present different questions”); Serrato, 486

F.3d at 565 (appeal not moot because although habeas

petitioner was released from prison, appeal “s[ought] relief in

the form of reduction of [petitioner’s] supervised release”);

Mujahid, 413 F.3d at 994–95 (same). Accordingly, we

dismiss McCullough’s appeal as moot. 

DISMISSED.