                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 21, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 CHRISTOPHER LEE RUBIO,

               Petitioner-Appellant,                     No. 12-6120
          v.                                           (W.D. of Okla.)
 H. A. LEDEZMA,                                  (D.C. No. 5:12-CV-00207-F)

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Christopher Lee Rubio is a federal prisoner incarcerated in the Federal

Correctional Institution at El Reno, Oklahoma who appeals the district court's

denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

Because Rubio is proceeding pro se, we construe his pleadings liberally. See

Haines v. Kerner, 404 U.S. 519, 520 (1972).



      *
         This order and judgment is not binding precedent except under the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.
      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                               I. Background

      In 2010, Rubio pleaded guilty to possession with intent to distribute over

100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) in

the Western District of Texas. The court sentenced him to 188 months in prison,

the bottom of the United States Sentencing Guidelines for defendants who fall

into the category of career criminals.

      On direct appeal he challenged the substantive reasonableness of his

sentence, claiming that the sentence misrepresented the seriousness of his

criminal history, and the Fifth Circuit affirmed. United States v. Rubio, 433 F.

App'x 289 (5th Cir. 2011). He also has filed a 28 U.S.C. § 2255 petition for

habeas relief now pending before the Western District of Texas. 1 See Defendant's

      1
         None of the documents related to Rubio’s sentence, conviction, or
pending 28 U.S.C. § 2255 petition were included in the appellate record.
Nevertheless, we have authority to review them because we may take judicial
notice of public records, including district court filings. See United States v.
Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district
court record that was not part of the record on appeal). These documents were
located by the magistrate judge, and we have reviewed them. We sua sponte
supplement the appellant record with the unpublished order from the Fifth Circuit
denying Rubio’s direct appeal, United States v. Rubio, No. 433 F. App’x 289 (5th
Cir. 2011); Defendant’s Motion for Post-Conviction Relief Pursuant to 28 U.S.C.
§ 2255, United States v. Rubio, Civil Action DR-11-CV-55, Case. Num. 2:09-cr-
01553-AM-1 at Doc. 44 (August 11, 2011); and all other documents pertaining to
Rubio’s conviction, sentencing, appeal, and collateral challenges cited in the
Report and Recommendation, R. 8. We also sua sponte supplement the appellate
record with the petitioner’s Response to Report and Recommendation of Doyle E.
                                                                       (continued...)

                                         -2-
Motion for Post-Conviction Relief Pursuant to 28 U.S.C. § 2255, United States v.

Rubio, Civil Action DR-11-CV-55, available at Case. Num. 2:09-cr-01553-AM-1,

Doc. 44 (August 11, 2011). (We confirmed that the full name, address, and

prisoner number from this case match the one given in the petition at bar, and

Rubio, in his objection to the magistrate judge’s findings, did not dispute these

facts.)

          The district court dismissed his petition, finding that it is a challenge to the

legality of his conviction and sentence that should have been brought under 28

U.S.C. § 2255 in his sentencing court.

                                  II. Discussion
          We review the district court’s denial of Rubio’s habeas petition de novo.

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

          “The purposes of an application for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 and a motion pursuant to 28 U.S.C. § 2255 are distinct and well

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

Petitions filed under § 2241 attack the execution of a sentence and are “not an

additional, alternative, or supplemental remedy to” § 2255. Bradshaw, 86 F.3d at

166. Rubio’s § 2241 petition attacks the legality of his conviction and sentence,



          1
      (...continued)
Argo-Magistrate, Rubio v. Uptown, Doc. 8 (April 22, 2012).

                                              -3-
not its execution. A federal prisoner seeking to attack the validity of a judgment

must resort to the remedy provided for in § 2255. See Johnson v. Taylor, 347

F.2d 365, 366 (10th Cir. 1965).

      There is an exception to this rule that permits a federal prisoner to bring a

petition pursuant to § 2241 under limited circumstances when the remedy under

§ 2255 is inadequate to test the legality of the sentence. See e.g., Sines v. Wilner,

609 F.3d 1070, 1073 (10th Cir. 2010); see also 28 U.S.C. § 2255(e). Rubio

argues on appeal that the remedy under § 2255 is inadequate because he is

bringing an “actual innocence” claim here, while his pending § 2255 motion in

the Western District of Texas is an ineffective assistance of counsel claim. But

he provides no reason why he could not raise the arguments included in this

petition in his § 2255 motion in Texas.

      In sum, having failed to demonstrate the remedy available to him under

§ 2255 is inadequate or ineffective to challenge his conviction or sentence, Rubio

cannot proceed under § 2241.

                               III. Conclusion

      For the reasons stated above, we AFFIRM the district court.

                                                     Entered for the Court,

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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