* This Order and Judgment is not binding precedent, except under the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 Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 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 case is therefore ordered

submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

April 15, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BERNARD J. DRAPEAU, JR.,

Petitioner-Appellant,

v.

RENE G. GARCIA, Warden,

Respondent-Appellee.

No. 10-1009

(D.C. No. 09-cv-2198-ZLW-BNB)

(D. Colo.)

ORDER AND JUDGMENT*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Bernard J. Drapeau, Jr., a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition for writ of habeas

corpus. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment

of the district court.

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Mr. Drapeau was convicted and sentenced on drug charges in the United

States District Court for the District of South Dakota. He is now serving his

sentence for that conviction in the custody of the Bureau of Prisons in Colorado. 

Seeking release from incarceration, Mr. Drapeau filed in the United States

District Court for the District of Colorado a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. He alleged that his conviction was invalid because

he was not subject to federal jurisdiction. He also raised a due process claim.

The district court dismissed the petition, concluding that Mr. Drapeau

sought to challenge the validity, not the execution, of his sentence; consequently,

reasoned the court, Mr. Drapeau’s suit should have been brought in the District of

South Dakota under 28 U.S.C. § 2255—not in the District of Colorado under 28

U.S.C. § 2241. The district court noted that the purposes of § 2241 and § 2255

are “distinct and well established.” R. at 47 (Order of Dismissal, filed Jan. 7,

2010). “‘A petition under 28 U.S.C. § 2241 attacks the execution of a sentence

rather than its validity and must be filed in the district where the prisoner is

confined.’” Id. (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)). 

“‘A 28 U.S.C. § 2255 petition attacks the legality of detention and must be filed

in the district that imposed the sentence.’” Id. (quoting Bradshaw, 86 F.3d at 166

(citations omitted)).

As with all rules, this one has an exception: if a prisoner can show that

§ 2255 is “inadequate or ineffective” to attack the validity of a judgment or

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sentence, then he may seek such relief under § 2241. Caravalho v. Pugh, 177

F.3d 1177, 1178 (10th Cir. 1999). But this is only available in “extremely limited

circumstances.” See id. (collecting examples of inadequate and ineffective

remedies under § 2255). Here, the district court concluded that Mr. Drapeau

failed to present “any reasoned argument” that § 2255 did not offer an adequate or

effective remedy for his claim, R. at 48, so it dismissed his § 2241 petition, id. at

49. The district court also denied Mr. Drapeau’s motion, made pursuant to 28

U.S.C. § 1915, to proceed on appeal in forma pauperis, concluding that Mr.

Drapeau had not appealed in good faith and had not shown “the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” R. at 58 (Order, filed Jan. 22, 2010).

Mr. Drapeau appeals, contending that the district court erred in dismissing

his § 2241 petition. Our review is de novo. Bradshaw, 86 F.3d at 166. Even

under that generous standard, and even construing his pro se filings liberally, see

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), Mr. Drapeau gives us no

reason to think that the district court erred. To the contrary, we agree that he

challenges the validity, not the execution, of his sentence. Therefore, ordinarily,

Mr. Drapeau’s suit should have been brought under § 2255. And, because Mr.

Drapeau has failed to establish that § 2255 would not offer an adequate and

effective remedy, his petition under § 2241 was properly dismissed.

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Thus, for substantially the reasons given by the district court, we AFFIRM

the dismissal of Mr. Drapeau’s § 2241 petition. We also agree with the district

court that Mr. Drapeau’s appeal is not taken in good faith, so we DENY his

motion to proceed in forma pauperis.

Entered for the Court

JEROME A. HOLMES

Circuit Judge

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