United States Court of Appeals, District of Columbia Circuit
January 6, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-00671)
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.
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.
Sentelle, Senior Circuit Judge:
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.
The Underlying Conviction and Post-Conviction
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.
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).
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).