Roger Day, Jr. v. Barack Obama

Filing

OPINION [1681009] filed (Pages: 9) for the Court by Judge Sentelle. [15-5144]

USCA Case #15-5144

Document #1681009

Filed: 06/23/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 6, 2017

Decided June 23, 2017
No. 15-5144

ROGER CHARLES DAY, JR.,
APPELLANT
v.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00671)

Ryan J. Watson, appointed by the court, argued the cause
as amicus curiae in support of appellant. With him on the
briefs was Noel J. Francisco.
Roger C. Day, Jr., pro se, filed the briefs for appellant.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was Elizabeth
Trosman, Assistant U.S. Attorney. Suzanne G. Curt, Assistant
U.S. Attorney, entered an appearance.

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Before: BROWN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Appellant, federal
prisoner Roger Charles Day, Jr., initiated this action by a pro
se petition in the United States District Court, seeking relief by
way of writ from what he alleged to be an illegally imposed
sentence. The petition is self-described as “pursuant to”
various sections of the United States Code and Constitution,
but it essentially amounts to a petition for habeas corpus, not
against his immediate custodian, but against the President of
the United States. The district court dismissed Day’s action.
Now ably represented by court-appointed amicus, Day appeals
from the judgment of dismissal. Because we agree with the
district court that the court was without jurisdiction over Day’s
petition, we affirm the judgment of dismissal.
I. BACKGROUND
A. The Underlying Conviction and Post-Conviction
Proceedings
Anyone seeking to follow the path of appellant Day’s
conviction and search for post-conviction relief will find a long
and winding trail. While we omit many steps, a logical starting
place is the return of a superseding indictment in the Eastern
District of Virginia on August 19, 2008, alleging against Day
one count of wire fraud conspiracy (18 U.S.C. § 1349); three
counts of wire fraud (18 U.S.C. § 1343); three counts of
aggravated identity theft (18 U.S.C. § 1028A); one count of
money laundering conspiracy (18 U.S.C. § 1956(h)); one count
of conspiracy to smuggle goods (18 U.S.C. §§ 371 and 554);

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and one count of obstruction of justice (18 U.S.C. § 1503).
Suppl. App. 001-015; United States v. Day, 700 F.3d 713, 718
(4th Cir. 2012). In December 2010, appellant, then in the
custody of the government of Mexico, was extradited to the
United States to face prosecution on all of the indicted charges
except for the identity theft and obstruction of justice counts.
Day, 700 F.3d at 718. On August 25, 2011, Day was found
guilty in a jury trial on all six counts. Id. at 719.
Before being sentenced, appellant filed a pro se motion to
vacate his convictions, arguing, among other things, that he had
been tried on the basis of a charge or evidence outside the grant
of extradition in violation of the international “rule of
specialty,” the extradition treaty between the United States and
Mexico, and 18 U.S.C. § 3192. The district court denied the
motion and sentenced appellant to an aggregate sentence of
1260 months, 3 years supervised release, a fine of $3 million,
restitution of $6,256,710.44, and civil forfeiture of gold,
vehicles, and more than $2 million in cash. Id. at 719-20.
Appellant appealed from both the conviction and the denial of
his post-conviction motion. The Fourth Circuit affirmed in
United States v. Day, 700 F.3d 713 (4th Cir. 2012), cert.
denied, 133 S. Ct. 2038 (2013).
On April 25, 2014, appellant filed a motion to vacate his
conviction pursuant to 28 U.S.C. § 2255, in the Eastern District
of Virginia. He again argued that his prosecution was in
violation of the rule of specialty and of the United StatesMexico extradition treaty. The district court denied this motion
also. United States v. Day, No. 3:07cr154, 2016 WL 96161, at
*1 (E.D. Va. Jan. 8, 2016). Day sought a certificate of
appealability. The district court denied his request. United
States v. Day, No. 3:07cr154, 2016 WL 3570832, at *1 (E.D.
Va. Feb. 19, 2016). The Fourth Circuit affirmed by

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unpublished order. United States v. Day, Nos. 16-6118, 166478, 2016 WL 4750872, at *1 (4th Cir. Sept. 13, 2016). 1
B. The Present Litigation
On February 25, 2015, appellant, appearing pro se, filed in
the United States District Court for the District of Columbia the
petition that commenced the present litigation. Appellant
captioned that document as “Roger Charles Day, Jr., Petitioner
v. Barack Obama, President of the United States.” The
document was internally headed “Petition pursuant to: Title 28
U.S.C. s/s s/s 1651 and 2241; Title 18 U.S.C. s/s 3192; Article
I s/s 9 cl. 2 U.S. Constitution, to be captioned: Roger Charles
Day, Jr. v. Barrack [sic] Obama, President of the United States;
statutory custodian of the petitioner pursuant to Title 18 U.S.C.
s/s 3192.” Thereafter, appellant set forth essentially the same
arguments he had made repeatedly in the past to other courts.
On April 6, 2015, the district court, by order and unpublished
memorandum opinion, dismissed appellant’s action for lack of
jurisdiction. Day v. Obama, No. 1:15-cv-00671, 2015 WL
2122289, at *1 (D.D.C. May 1, 2015). Appellant brought the
present appeal. At our request, a public-spirited attorney
appeared as amicus in support of appellant’s appeal.
II. ANALYSIS
Appellant’s oft-repeated litany of injustices underlying his
claim for relief begins with the international doctrine of
specialty. Appellant’s argument basically is that under this
doctrine an internationally extradited defendant may be tried
1

Although appellant has filed other petitions, all of which were either
decided against him or remain pending, further discussion of his
collateral litigation will add nothing to our present analysis.

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only “for the offenses specified in the warrant of extradition
. . . .” 18 U.S.C. § 3192; see also United States v. Rauscher,
119 U.S. 407, 423-24 (1886) (an extraditee may not be
“delivered up” to be “tried for any other offense than that [with
which he was] charged in the extradition proceedings”).
Appellant also argues that his conviction is in violation of the
international doctrine of dual criminality, which supposes that
international extradition must involve an act that is a criminal
offense in both the extraditing and receiving jurisdiction.
Appellant relies on these doctrines unhampered by the fact that
the charges upon which he was tried and convicted were
precisely those recited in the proceedings of extradition.
Appellant’s rationale for supposing that the two doctrines
were violated is based on a jury instruction setting forth the
theory of aiding and abetting. The United States has
consistently opposed this argument of appellant on several
grounds, including the fact that appellant was not convicted of
an offense of “aiding and abetting.” Rather, he was convicted
of the substantive offenses charged in the indictment and
underlying the extradition, so that the theory of aiding and
abetting is a matter of evidence, not of the offense charged. In
addition to the definitional argument put forth by the United
States, appellant has other steep hills to climb in support of his
theory, not the least of which is res adjudicata. The very
questions raised in this case were decided in his direct appeal
and decided against him. See Day, 700 F.3d at 721-22.
Nonetheless, we will not, indeed cannot, consider the merits of
appellant’s argument. As the district court correctly ruled, we
have no jurisdiction to do so in this action.
As the district court correctly stated, “[t]he proper
respondent in a habeas corpus action is the petitioner’s
custodian.” See Day, 2015 WL 2122289, at *1 (citing
Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004)). The record

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reflects that the custodian of appellant Day is the Warden of the
United States Penitentiary in Terre Haute, Indiana, not the
President of the United States. The “district court may not
entertain a habeas petition involving present physical custody
unless the respondent custodian is within its territorial
jurisdiction.” Stokes v. U.S. Parole Comm’n, 374 F.3d 1235,
1239 (D.C. Cir. 2004). As the district court stated, “[b]ecause
the proper respondent is not within this court’s territorial
jurisdiction, Petitioner’s habeas petition” must be dismissed for
lack of jurisdiction. Day, 2015 WL 2122289, at *1.
Appellant attempts to thwart this problem by arguing that
his proceeding, contrary to his pleading in district court, is not
a petition for habeas corpus. It is. As the Supreme Court
discussed in Padilla, 28 U.S.C. § 2241 et seq., provides that a
petitioner claiming to be “in custody in violation of the
Constitution or laws or treaties of the United States” may seek
a writ of habeas corpus in federal district court. 28 U.S.C.
§ 2241(c)(3); cf. Padilla, 542 U.S. at 446-47. Further, the
statute provides “straightforwardly . . . that the proper
respondent to a habeas petition is the person who has custody
over the [person detained].” Padilla, 542 U.S. at 434 (citing
28 U.S.C. §§ 2242-43) (internal quotation marks and brackets
omitted). Were this not straightforward enough, the Supreme
Court has expressly told us that a “longstanding practice
confirms that in habeas challenges to present physical
confinement–‘core challenges’–the default rule is that the
proper respondent is the warden of the facility where the
prisoner is being held, not the Attorney General or some other
remote supervisory official.” Id. at 435. In Padilla, the Court
denominates this principle as the “immediate custodian rule.”
Id.
Appellant attempts to escape the immediate custodian rule
by repairing to 18 U.S.C. § 3192, which states:

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Whenever any person is delivered by any
foreign government to an agent of the United
States, for the purpose of being brought within
the United States and tried for any offense of
which he is duly accused, the President shall
have power to take all necessary measures for
the transportation and safekeeping of such
accused person, and for his security against
lawless violence, until the final conclusion of
his trial for the offenses specified in the warrant
of extradition, and until his final discharge from
custody or imprisonment for or on account of
such offenses, and for a reasonable time
thereafter, and may employ such portion of the
land or naval forces of the United States, or of
the militia thereof, as may be necessary for the
safe-keeping and protection of the accused.
The statute, appellant argues, imposed on the President the duty
of protecting an extradited person from trial on charges other
than those of extradition. Therefore, appellant asserts, since (in
appellant’s view) his trials and convictions in this case were for
the supposed offense of “aiding and abetting” and not for the
extradited offenses, the President has failed in his duty and
appellant therefore is seeking not a writ of habeas corpus but a
writ in the nature of mandamus, compelling the President to
perform his statutory duty.
Even assuming, as appellant apparently does, that § 3192
creates an implied individual claim for relief and that the
district court would have the authority to compel the President
to perform this duty, the only relief that appellant seeks is
release from a conviction and sentence which he claims were
imposed in violation of the Constitution and laws of the United

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States—most specifically, § 3192. This classically describes
habeas relief.
Appellant argues that even though Padilla reminds us that
“the immediate physical custodian rule” is the default choice,
that rule, “by its terms, does not apply when a habeas petitioner
challenges something other than his present physical
confinement.” 542 U.S. at 437-38. While this may be true, it
is also irrelevant. No matter how much lipstick appellant
applies to this particular pig, it is still a pig—that is to say, a
petition for habeas corpus: He is in custody under a conviction
that he argues was obtained in violation of law, and he seeks to
be released.
Appellant particularly relies on the “dual custody” theory
discussed by Justice Kennedy in his concurrence in Padilla.
See 542 U.S. at 454 (Kennedy, J., concurring). Justice
Kennedy relied on Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484 (1973). In Braden, a prisoner in
Alabama filed a petition in Kentucky seeking to compel
Kentucky to grant him a speedy trial on a Kentucky indictment.
410 U.S. at 485. The Supreme Court held that the petition
could lie in Kentucky rather than in Alabama where his
immediate custodian resided. See id. at 500-01. However, that
dual custody doctrine arising from Braden and appearing in
Justice Kennedy’s analysis in his separate Padilla concurrence
has nothing to do with the present case. In fact, it fits very
nicely with the general proposition that “the immediate
physical custodian rule, by its terms, does not apply when a
habeas petitioner challenges something other than his present
physical confinement.” Padilla, 542 U.S. at 438. Again, Day’s
problem is that he challenges his present physical confinement.
Were the courts in the District of Columbia to hear his petition
and nod gravely to his argument that the President should have
done something differently, he would still be confined and we

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would have granted no petition. The dual custody exception
does not apply. No other exception applies. The immediate
custodian rule does apply.
As Day has attempted to invoke various other statutes, we
note the longstanding observation of the courts that § 2255 is
ordinarily the sole remedy for a federal prisoner challenging
the legality of his conviction or sentence, and he may not
pursue such a challenge under § 2241. A federal prisoner who
“claim[s] the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws
of the United States . . . or is otherwise subject to collateral
attack,” must file a motion under 28 U.S.C. § 2255 in “the court
which imposed the sentence to vacate, set aside or correct the
sentence.” 28 U.S.C. § 2255(a). The District of Columbia is
neither the district of residence of Day’s immediate custodian
for purposes of § 2241 habeas relief nor the district of
sentencing for § 2255 purposes.
The district court correctly held that it had no jurisdiction.
We affirm the judgment of dismissal.

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