                                                                         F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         July 26, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 JAM ES DAV ID BLUE THUN DER,

               Petitioner-A ppellant,                   No. 05-1386
          v.                                            (D . of Colo.)
 ALBERTO R. GONZA LES,                          (D.C. No. 05-CV-970-ZLW )

               Respondent-Appellee. *



                            OR D ER AND JUDGM ENT **


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. ***


      Petitioner-Appellant James David Blue Thunder, a federal prisoner

appearing pro se, appeals the dismissal of his 28 U.S.C. § 2241 petition. The

district court ruled that Blue Thunder could not proceed under § 2241 because 28

U.S.C. § 2255 provided the appropriate remedy, and dismissed the motion. Blue

      *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Respondent
requests that Alberto R. Gonzales be substituted for John Ashcroft as the
respondent in this case.
      **
          This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      ***
          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.
Thunder appeals and we AFFIRM for the same reasons relied upon by the district

court.

         In 1978, a federal jury in South D akota convicted Blue Thunder of first

degree murder and he was sentenced to life imprisonment. He is currently jailed

at the Federal Correctional Institute in Florence, Colorado. Because of his

frequent and frivolous filings attacking his conviction, the District of South

Dakota recently barred Blue Thunder from filing any more documents concerning

his criminal case. In response to this order, he filed a § 2241 petition challenging

the validity of his sentence in the District of Columbia. That court subsequently

transferred the petition to the District of Colorado.

         W e review the district court’s dismissal of a § 2241 petition de novo, see

Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004), and construe liberally

a pro se prisoner’s pleadings on appeal. See Haines v. Kerner, 404 U.S. 519,

520–21 (1972).

         It is well-established that a § 2241 petition attacks the execution of a

sentence, while a § 2255 motion attacks the validity of a conviction and sentence.

Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). Section 2241

petitions, therefore, should be brought in the district where the prisoner is

incarcerated, while § 2255 motions are to be brought in the district where the

prisoner w as sentenced. Id. Blue Thunder admittedly challenges the validity of

his sentence, but nonetheless claims that his § 2241 motion is proper because he

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has been barred from obtaining relief by the District Court of South Dakota. H e

asserts that he is merely trying to force that court to consider his Rule 60(b)(6)

motion, alleging fraud on the court during his criminal trial. W e find no merit to

this argument.

      A § 2241 petition does not act as an additional, alternative, or supplemental

remedy whenever a petitioner fails to obtain relief under § 2255. See id.;

Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963). Only when the

remedy provided by § 2255 proves inadequate or ineffective can a petitioner bring

a § 2241 motion challenging the validity of his sentence. Caravalho, 177 F.3d at

1178. An order barring a petitioner from filing any more court documents, when

that petitioner has abused the system, neither renders § 2255 inadequate nor

ineffective. Cf. id. (noting that a petitioner barred from filing a second or

successive habeas motion under § 2255 does not establish that the remedy

provided by § 2255 is inadequate or ineffective). If Blue Thunder disagrees w ith

this characterization of his filing in South Dakota, his recourse is to appeal that

order to the appropriate court, in this case the Eighth Circuit Court of Appeals.

But, in any event, a § 2241 motion is not an avenue for Blue Thunder to

circumvent the well-established rules for bringing a habeas petition challenging

the validity of his sentence.

      Blue Thunder also asserts we should allow his claim because failure to do

so would produce a fundamental miscarriage of justice on the ground that he is

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actually innocent of the charged crime. See Hawkins v. M ullin, 291 F.3d 658, 679

(10th Cir. 2002). “The exception is intended for those rare situations where the

State has convicted the wrong person of the crime . . . or where it is evident that

the law has made a mistake.” Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir.

2000) (internal quotation and marks omitted). To prevail, then, Blue Thunder

must point us to evidence that affirmatively proves his innocence. Phillips v.

Ferguson, 182 F.3d 769, 774 (10th Cir. 1999). W e have carefully reviewed the

record and find no evidence to suggest a different outcome at trial in light of the

proffered evidence. Id.

      Finally, for the first time on appeal, Blue Thunder asserts that the District

Court of South Dakota never had jurisdiction to prosecute his case. He points us

to United States v. M .C., 311 F. Supp. 2d 1281, 1295–97 (D.N.M . 2004), where

the District Court of New M exico held that the land on which an Indian school

was located did not constitute Indian land, and therefore dismissed a criminal

indictment for lack of federal jurisdiction. Normally, we do not address issues

not raised below; however, we briefly consider Blue Thunder’s jurisdictional

argument, which must be rejected because he has failed to create a sufficient

factual record for us to address this issue. As best we can tell, the crime here was

comm itted at an Indian school located squarely within the boundaries of Rosebud

Indian Reservation in South Dakota. In United States v. M .C., in contrast, the

school, although run by the Bureau of Indian Affairs, was not located within the

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confines of an Indian Reservation or otherwise on land set aside for the use of

Indians as Indian country for purposes of 18 U.S.C. § 1151. 1 Id. at 1282–83,

1295. Therefore, the District Court of South Dakota had jurisdiction over Blue

Thunder’s criminal case.

      Accordingly, we AFFIRM the district court’s dismissal of B lue Thunder’s

§ 2241 motion, GRANT his motion to supplement the record, GRANT his motion

to expand the record on appeal, and DENY his motion to proceed in forma

pauperis.

                                                       Entered for the Court


                                                       Timothy M . Tymkovich
                                                       Circuit Judge




      1
          18 U.S.C. § 1151 states in pertinent part:

      [T]he term “Indian country” . . . means (a) all land within the limits of
      any Indian reservation under the jurisdiction of the United States
      Government . . . , (b) all dependent Indian communities within the
      borders of the United States w hether w ithin the original or subsequently
      acquired territory thereof, and whether w ithin or without the limits of
      a state, and (c) all Indian allotments, the Indian titles to which have not
      been extinguished . . . .


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