Federal Prisoner Cannot Bring 28 USC 2241 Petition In Washington, DC

A prisoner 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 under 28 USC 2241 in the federal district court wherein they are confined. The proper respondent is the custodian of the prisoner. The United States Supreme Court has denominated this principle as the "immediate custodian rule."

Roger Day Jr. was charged in the United States District Court for the Eastern District of Virginia with one count of conspiracy to commit wire fraud (18 USC 1343), three counts of aggravated identity theft (18 USC 1028A), one count of conspiracy to commit money laundering (18 USC 1956), one count of conspiracy to smuggle goods (18 USC 371 & 554), and one count of obstruction of justice (18 USC 1503). Day was extradited from Mexico to the Eastern District of Virginia to face prosecution on all charges except the three counts of aggravated identity theft and one count of obstruction of justice.

Day was found guilty of the six extraditable charges and sentenced to 1260 months. At his sentencing hearing, on his direct appeal, and in his 28 USC 2255 motion, Day argued that he had been tried on charges outside the grant of extradition in violation of the "rule of specialty" as applied to the extradition treaty between Mexico and the United States. Each Court held that Day was only convicted of the charges authorized by Day's extradition.

While confined at the United States Penitentiary (USP) in Terre Haute, Indiana, Day sought 28 USC 2241 relief arguing that he had been tried on charges outside the grant of extradition. Day filed his 28 USC 2241 petition in the United States District Court for the District of Columbia (Washington, DC) and listed his custodian as the President of the United States.

The D.C. District Court dismissed Day's 2241 for lack of jurisdiction because the warden of the facility (USP Terre Haute) is Day's custodian and not the Attorney General or the President.

Day appealed, and the D.C. Circuit affirmed.

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.' 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.


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 would have granted no petition. The dual custody exception does not apply. No other exception applies. The immediate custodian rule does apply.

See: Day v. Trump, No. 15-5144 (D.C. Cir. 2017).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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