Roger C. Day, Jr. v. T. J. Watson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 6, 2023
Decided December 20, 2023
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-1072
ROGER C. DAY, JR.,
Petitioner-Appellant,
v.
T. J. WATSON,
Respondent-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 20-cv-00362
Jane Magnus-Stinson,
Judge.
O R D E R
Roger Charles Day, Jr. seeks habeas relief under a theory already considered by
the courts of another circuit. Since he cannot relitigate this issue, we affirm the denial of
his habeas petition.
After Day was extradited from Mexico, he was tried and convicted in the Eastern
District of Virginia for his role in a multi-year conspiracy to defraud the United States
government. He appealed to the Fourth Circuit, arguing that his conviction should be set
aside on jurisdictional grounds. According to Day, his conviction violated a principle of
international law known as the Rule of Specialty, which states that a country receiving a
person by extradition “may prosecute the extradited person only for the … crimes named
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 23-1072 Page 2
in the surrendering country’s extradition grant.” United States v. Stokes, 726 F.3d 880, 885
(7th Cir. 2013). The Fourth Circuit rejected Day’s challenge and affirmed his conviction.
United States v. Day, 700 F.3d 713, 716–17, 721–22 (4th Cir. 2012), cert. denied, 569 U.S. 959
(2013).
Day then tried to attack his conviction by filing a motion under 28 U.S.C. § 2255 in
the Eastern District of Virginia, again asserting a Rule of Specialty violation. This time,
Day connected his Rule of Specialty challenge to a Supreme Court case involving criminal
aiding and abetting liability, Rosemond v. United States, 572 U.S. 65 (2014). Day argued that
Rosemond, announced after his direct appeal, created an intervening change in aiding and
abetting liability that allowed him to revive his Rule of Specialty argument. The Eastern
District of Virginia disagreed, concluding that Rosemond “did not create new law” that
warranted reconsideration of Day’s claims, United States v. Day, No. 07-cr-00154, 2016 WL
96161, at *2 (E.D. Va. Jan. 8, 2016), and the Fourth Circuit declined to issue a certificate of
appealability, United States v. Day, 668 F. App’x 506, 507 (4th Cir. 2016), cert. denied, 580
U.S. 1209 (2017).
Day, now incarcerated in Terre Haute, Indiana, subsequently filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241 in the Southern District of Indiana. That
court denied his petition, which once again raised a Rule of Specialty challenge. Day now
appeals.
In collateral attacks, relief under § 2241 is rare: A prisoner can receive it in their
district of incarceration “where unusual circumstances make it impossible or
impracticable to seek relief in the[ir] sentencing court.” Jones v. Hendrix, 599 U.S. 465, 478
(2023); see 28 U.S.C. § 2255(e). Indeed, Day cannot relitigate a theory “under § 2241 if
§ 2255 could have been (or was) used to raise the issue.” Roundtree v. Krueger, 910 F.3d
312, 313 (7th Cir. 2018). This limitation ends our inquiry. Day’s § 2255 motion “afforded
[him] a means to address [his Rule of Specialty] arguments.” Id. Since “[§] 2241 is not a
means to get a second opinion in a different circuit[,]” Day cannot use it to resurrect an
argument already rejected elsewhere. Von Kahl v. Segal, 19 F.4th 987, 988 (7th Cir. 2021).
For the foregoing reasons, we A FFIRM the district court’s denial of Day’s habeas
petition.

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