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Day v. Trump

United States Court of Appeals, District of Columbia Circuit

June 23, 2017

Roger Charles Day, Jr., Appellant
v.
Donald J. Trump, President of the United States, Appellee

          Argued January 6, 2017

         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.

          Before: Brown, Circuit Judge, and Edwards and Sentelle, Senior Circuit Judges.

          OPINION

          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); 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 States-Mexico 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 unpublished order. United States v. Day, Nos. 16-6118, 16-6478, 2016 WL 4750872, at *1 (4th Cir. Sept. 13, 2016).[1]

         B. The ...


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