                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   December 20, 2011
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 RUPERT A. TRUJILLO,

               Petitioner-Appellant,                     No. 11-6205
          v.                                           (W.D. of Okla.)
 H.A. LEDEZMA, Warden,                           (D.C. No. CV-11-00244-W)

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Rupert A. Trujillo, a federal prisoner in Oklahoma, appeals the district

court’s dismissal of his application for habeas relief under 28 U.S.C. § 2241. He

also seeks leave to proceed on appeal in forma pauperis. We have jurisdiction

under 28 U.S.C. § 1291, and we construe Trujillo’s filings liberally because he is




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991).

         We agree with the district court that § 2241 was not an available remedy in

this case. Accordingly, we AFFIRM the district court’s dismissal and DENY the

application to proceed in forma pauperis.

                                    I. Background

         Trujillo pleaded guilty to drug charges in the District of New Mexico and

was sentenced to 120 months’ imprisonment in November 2009. He did not file a

direct appeal. He is currently incarcerated and serving his sentence at the Federal

Correctional Institution in El Reno, Oklahoma.

         In March 2011, Trujillo filed a petition seeking a writ of habeas corpus

pursuant to § 2241 in the Western District of Oklahoma, the jurisdiction where he

is serving his sentence, challenging the validity of his conviction on the grounds

that he was not competent when he pleaded guilty. The government filed a

motion to dismiss. The district court held that Trujillo cannot pursue his claim

under § 2241 and his only available remedy comes from 28 U.S.C. § 2255. See

Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (finding a federal

prisoner’s attempt to attack the legality of conviction or sentence must be brought

under § 2255). Additionally, the district court held Trujillo did not qualify for the

exception to the rule that would have allowed him to bring his claim under §

2241. See id. (finding a federal prisoner may resort to § 2241 to challenge the

                                          -2-
legality of conviction or sentence if the remedy under § 2255 is inadequate or

ineffective). Accordingly, the district court granted the government’s motion to

dismiss and dismissed Trujillo’s petition. This timely appeal followed.

                                    II. Analysis

      This court reviews a district court’s dismissal of a § 2241 petition de novo,

and reviews factual findings for clear error. United States v. Miller, 594 F.3d

1240, 1242 (10th Cir. 2010).

      Sections 2241 and 2255 serve separate and distinct purposes, and are not

interchangeable. See Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999)

(“The purposes of an application for a writ of habeas corpus pursuant to . . .

§ 2241 and a motion pursuant to . . . § 2255 are distinct and well established.). It

is clear that Trujillo is attempting to challenge the legality of his conviction and

sentence. Such a challenge must be filed pursuant to § 2255 and be filed in the

district in which the sentence was imposed—the District of New Mexico.

Bradshaw v. Story, 86 F.3d 164, 166–67 (10th Cir. 1996). In contrast, a § 2241

petition attacks the execution of a sentence and “is not an additional, alternative,

or supplemental remedy to” § 2255. Id. at 166.

      There is one exception to this strict separation: § 2255(e)’s “savings

clause.” Under the savings clause, a prisoner can bring a collateral sentencing

attack in a § 2241 petition if it “appears that the remedy [offered] by [a § 2255]

motion is inadequate or ineffective to test the legality of his detention.” This is

                                         -3-
an extremely narrow exception, applicable “only in extremely limited

circumstances.” Caravalho, 177 F.3d at 1178. Trujillo has never filed a § 2255

motion and has only stated that § 2255 “Would Be Inadequate Because It Would

Be Ineffective to Test The Legality of Petitioner’s Confinement.” R., Doc. 22 at

5. This conclusory statement is insufficient to invoke the savings clause. See

also Humphreys v. Gibson, 261 F.3d 1016, 1023 n.2 (10th Cir. 2001) (rejecting

habeas allegations as “conclusory”). Additionally, after thoroughly reviewing the

record, nothing else indicates that the savings clause should otherwise apply.

      Finally, as the magistrate judge’s Report and Recommendation noted, even

if the district court were to sua sponte recharacterize Trujillo’s filing as a § 2255

petition and transfer it to New Mexico, such recharacterization would likely be

futile because, in the absence of tolling, the one-year limitations period for a

§ 2255 motion has run.

                                   III. Conclusion

      For the foregoing reasons, we DENY Trujillo’s motion to proceed in forma

pauperis and DISMISS his appeal.

                                                      Entered for the Court,


                                                      Timothy M. Tymkovich
                                                      Circuit Judge




                                          -4-
