                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       April 20, 2007
                          FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 GUILLERM O RU CO BO -RIOS,

              Petitioner-A ppellant,
                                                         No. 06-1503
 v.                                             (D.C. No. 06-CV-01978-ZLW )
                                                        (D. Colorado)
 K EV IN M ILY A RD ,

              Respondent-Appellee.



          OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before B RISC OE , L UC ER O, and TYM KOVICH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Petitioner Guillermo Rucobo-Rios, a state prisoner proceeding pro se,

requests a certificate of appealability (“COA”) to appeal the district court’s order

and judgment denying his 28 U.S.C. § 2241 petition for w rit of habeas corpus.

Because Petitioner has not made “a substantial showing of the denial of a


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
constitutional right,” see 28 U .S.C. § 2253(c)(2), we deny his request for COA

and dismiss the appeal.

      In 1999, Guillermo Rucobo-Rios was convicted in state court of felony

murder, second degree murder, and second degree kidnapping. He was sentenced

to life imprisonment plus thirty-two years. On direct appeal, his conviction was

affirmed. In 2005, he filed his first 28 U.S.C. § 2254 petition under the

Antiterrorism and Effective D eath Penalty Act (“AEDPA”). The district court

denied the petition as barred by the one-year statute of limitations. On appeal,

this court denied COA and dismissed. See Rucobo-Rios v. Ortiz, 185 Fed. Appx.

755 (10th Cir. Jun. 23, 2006).

      In October 2006, Petitioner Rucobo-Rios filed a § 2241 petition

challenging his 1999 state conviction. He claimed that the state court lacked

jurisdiction to prosecute him. In particular, he argued that the charging document

presented to him at arraignment failed to comply with state statutory law in that it

w as not sw orn to under oath and was not signed by a deputy district attorney. H e

also claimed that he was not brought before the state court in a timely fashion for

a preliminary hearing. The district court denied the § 2241 petition, concluding

that the relief sought by Petitioner was not available under § 2241 but rather

under § 2254. The district court stated that it would not construe the § 2241

petition as a § 2254 petition, and that Petitioner could not use a § 2241 petition as

a means to avoid the restrictions on the filing of a second or successive § 2254

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petition under the AEDPA. This appeal followed.

      Petitioner Rucobo-Rios, a state prisoner, may appeal the denial of his §

2241 petition only if a COA is issued. See 28 U.S.C. § 2253(c)(1); M ontez v.

M cKinna, 208 F.3d 862, 867 (10th Cir. 2000). A COA will issue only if Rucobo-

Rios makes “a substantial showing of the denial of a constitutional right.” See §

2253(c)(2). To make the requisite showing, Petitioner must demonstrate that

“reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” See M iller-EL v. Cockrell, 537 U.S.

322, 336 (2003) (quoting Slack v. M cDaniel, 529 U.S. 473, 484 (2000)) (internal

quotation marks omitted).

      Habeas petitions under § 2241 are used to attack the execution of a

sentence and are not the vehicle for challenging the validity of a criminal

conviction. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (a petition

under § 2241 “is not an additional, alternative, or supplemental remedy” to §

2254 or § 2255). Because Petitioner does not attack the execution of his sentence

but rather the validity of his 1999 criminal conviction, § 2241 is not the

appropriate avenue of relief. Although second or successive applications are

restricted under the AEDPA, they are not prohibited. See 28 U.S.C. §§

2244(b)(2) and 2244(b)(3).

      Having reviewed Petitioner’s application for COA, appellate brief, and the

                                         -3-
record on appeal, we conclude the district court correctly denied his § 2241

petition. No reasonable jurist would disagree.

      Accordingly, the application for COA is DENIED. The motion to proceed

in form a pauperis is DENIED. The appeal is DISM ISSED.



                                              ENTERED FOR THE COURT
                                              PER CURIAM




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