IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

REGINALD NETTLES, *

 *

Petitioner, *

 *

vs. * CIVIL ACTION: 14-00389-CG-B

 *

B.R. JETT, et al., *

 *

Respondents. *

REPORT AND RECOMMENDATION

Petitioner Reginald Nettles, who is currently housed 

at the Federal Medical Center in Rochester, Minnesota (“FMC 

Rochester”), has filed a petition and amended petitions 

seeking habeas relief under 28 U.S.C. § 2241 against B. R. 

Jett (“Jett”), Warden of FMC Rochester, and the United 

States of America.1 (Docs. 1, 2, 4). Also before the Court 

is a response filed on behalf of the Respondents (Doc. 17) 

and a reply by Nettles. (Doc. 18). 

The petition, as amended, is now ripe for adjudication 

and has been referred to the undersigned Magistrate Judge 

for a report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R) and Rule 8 of the 

 1 In addition to his initial petition, Nettles also 

filed two amended petitions, the last of which was at the 

court’s direction because the first two were not on the 

form required by this Court. (Docs. 2, 3, 4).

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Rules Governing Section 2254 Cases. The undersigned has 

conducted a careful review of the record and finds that no 

evidentiary hearing is required to resolve this case. 

Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317 (11th 

Cir. 2004). Upon consideration, and for the reasons stated 

herein, the undersigned RECOMMENDS that Nettles’ habeas 

petition, as amended (Doc. 4), be construed as a motion for 

discharge under 18 U.S.C. § 4247, that it be DENIED and 

that this action be DISMISSED without prejudice. The 

undersigned further RECOMMENDS that the Court request the 

preparation of an annual report pursuant to 18 U.S.C. § 

4247(e)(1)(B) from the Director of the Federal Medical 

Center in Rochester, Minnesota where Nettles is currently 

housed. 

I. Background. 

In September 2012, Nettles was indicted for assaulting 

a postal employee in violation of 18 U.S.C. § 111(a), (b). 

United States v. Nettles, Crim. No. 12-00220-CG-B (Crim. 

Doc. at 11) 2 . Nettles entered a plea of not guilty, and 

 2 The Court takes judicial notice of the criminal docket in 

the underlying criminal case, United States v. Nettles, 

Crim. No. 12-00220-CG-B, and will reference documents in 

that case as follows: (Crim. Doc. at “ “) See United States 

v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999) ("A 

court may take judicial notice of its own records and the 

records of inferior courts.").

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following a competency evaluation and hearing, he was 

deemed competent to stand trial (Crim. Doc. at 21). 

Following a stipulated bench trial, the Court found Nettles 

not guilty only by reason of insanity, and pursuant to 18 

U.S.C. § 4243(b), the Court ordered that Nettles be 

examined for a determination of whether or not he was 

suffering from a mental disease or defect as a result of 

which his release would create a substantial risk of bodily 

injury to another person or serious damage to the property 

of another. (Crim. Doc. at 33). On November 6, 2013, 

following receipt of the report of examination from the 

Federal Medical Center at Butner, North Carolina (Crim. 

Doc. 37), the Court held a hearing pursuant to 18 U.S.C. § 

4243(c), and found that Nettles failed to prove by clear 

and convincing evidence that his release would not create a 

substantial risk of bodily injury to another person or 

serious damage of property to another due to the present 

mental disease or defect. (Crim. Doc. at 40). Thus, the 

Court ordered Nettles committed to the custody of the 

Attorney General pursuant to 18 U.S.C. 4243(e). (Id.) As 

noted supra, Nettles remains confined at FMC Rochester and 

has petitioned this Court for habeas corpus relief pursuant 

to 28 U.S.C. § 2241. 

 

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II. Habeas Petition.

A review of Nettles’ petition as amended reveals that 

it is disjointed, and difficult to decipher. As best the 

undersigned can determine, Nettles is not challenging the 

conditions of his confinement, but the fact of his 

confinement and, he is seeking his immediate release from 

custody on conditions. Nettles also asserts that his 

counsel failed to appeal the commitment order which 

resulted in his confinement, and that his counsel was 

ineffective because Nettles was denied a speedy trial, 

denied a trial by jury, and had his testimony used against 

him in violation of his Fifth Amendment rights. Nettles 

further asserts that all the laws of the United States are 

null and void. (Doc. 4). 

Respondent argues that Nettles’ petition constitutes 

a “collateral attack on his conviction or sentence” and as 

a result, it should be brought pursuant to 28 U.S.C. § 

2255, not § 2241, and that the time for filing a § 2255 

petition has long since expired. (Doc. 17 at 3). 

Respondent further asserts that Nettles’ claims do not fall 

within the “savings clause” of § 2255(e); thus, he should 

not be allowed to circumvent the provisions of §2255 by 

improperly seeing relief under § 2241.

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III. Analysis. 

a. Proper Classification of Petition

A federal prisoner seeking to collaterally attack his 

sentence must, in most instances, pursue relief under 28 

U.S.C. § 2255. McCarthan v. Warden, FCC Coleman-Medium, 811 

F. 3d 1237 (llth Cir. 2016). Section 2255 grants federal 

prisoners a cause of action to challenge their sentences as 

unconstitutional or otherwise unlawful and delineates the 

procedure for adjudicating these actions. Id. In addition, 

the so-called "savings clause" contained in § 2255 allows 

a federal court to entertain a federal prisoner's § 2241 

habeas petition in the limited circumstances where the 

prisoner demonstrates that the remedy in § 2255 "is 

inadequate or ineffective to test the legality of his 

detention." 28 U.S.C. § 2255(e) 3 ; see also Williams v. 

Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th 

 3 The “savings clause” of § 2255 enumerates the 

circumstances under which the door is opened to allow a 

petitioner to file suit under § 2241. The statute states:

a prisoner who is authorized to apply for relief 

by motion pursuant to this section, shall not be 

entertained if it appears that the applicant has 

failed to apply for relief, by motion, to the 

court which sentenced him, or that such court has 

denied him relief, unless it also appears that 

the remedy by motion is inadequate or ineffective 

to test the legality of his detention.

 

28 U.S.C. § 2255(e). 

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Cir. 2013); Wattleton v. Beeler, 186 F. App'x 852, 852-53 

(11th Cir. 2006) (quoting 28 U.S.C. § 2255(e)) (citing 

Wofford v. Scott, 177 F.3d 1236, 1238-39 (11th Cir. 1999)). 

In this action, Nettles is not in custody serving a 

sentence, but he is instead confined to FMC Rochester based 

upon the Court’s findings of not guilty only by reason of 

insanity, and that his release would create a substantial 

risk of harm to others due to his mental defect or disease. 

Accordingly, given the absence of a sentence, Nettles 

cannot proceed under § 22554. See United States v. Tucker,

153 F. App'x 173, 175 (4th Cir. 2005)(per curiam) 

(dismissing appeal of denial of § 2255 where individual had 

been found not guilty by reason of insanity); Archuleta v. 

Hedrick, 365 F.3d 644, 648 (8th Cir. 2004)(petitioner “was 

found not guilty by reason of insanity and therefore is not 

eligible for relief under 28 U.S.C. § 2255.”); United 

States v. Budell, 187 F.3d 1137, 1141 (9th Cir.

1999)(“Because [petitioner] was acquitted [by reason of 

 4 In Wattleton v. Beeler, 186 Fed. Appx. 852 (llth Cir. 

2006), the 11th Circuit declined to reach the issue of 

whether a person found not guilty only by reason of 

insanity and subsequently committed was a prisoner in 

custody for purposes of section 2255 because the petitioner 

in that case had already had all of his claims addressed in 

a previously filed section 2255 motion. In that instance, 

the court held that the petitioner could not circumvent the 

successive-petition rule simply by filing a petition under 

section 2241. 

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insanity], he is not a prisoner in custody under sentence. 

. .” and section 2255 is inapplicable to him.); Knox v. 

United States, 2008 U.S. Dist. LEXIS 119099, 2008 WL 

2168871 at *4 (D.S.C. May 2, 2008)(noting that petitioner 

could not file a habeas petition under section 2255 because 

he was not a “prisoner in custody under sentence.”). 

As noted, Section 2255's "savings clause" permits a 

petition under § 2241—which is "generally reserved for 

challenges to execution of a sentence or the nature of 

confinement, not the validity of the sentence itself or the 

fact of confinement," Bryant v. Warden, 738 F.3d 1253, 1288 

(11th Cir. 2013)—if a petitioner establishes that the 

remedy provided by § 2255 is "inadequate or ineffective to 

test the legality of his detention." § 2255(e); see also

Sawyer v. Holder, 326 F.3d 1363, 1365 (llth Cir.2003). A 

person committed after having been found not guilty only by 

reason of insanity is not precluded from establishing by 

writ of habeas corpus the illegality of his detention. 18 

U.S.C. § 4247(g); Wattleton v. Beeler, 186 Fed. Appx. 852 

(llth Cir. 2006); Payden v. Jett, 610 Fed. Appx. 594 (8th

Cir. 2015)( “we disagree with the conclusion that Payen was 

precluded from bringing a habeas claim--for which the 

warden would be the proper respondent--challenging his 

continued confinement and seeking a hearing on that basis, 

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see 18 U.S.C. § 4247(g) (nothing contained in, inter alia, 

§ 4246 precludes person who is committed under section from 

establishing by writ of habeas corpus illegality of his 

detention)”); Archuleta v. Hedrick, 365 F. 3d 644 (8th Cir. 

2004)(because the petitioner was contending that he met the 

standards for release under 18 U.S.C. § 4243, his claim was 

cognizable under “2241(c)(3) which “authorizes the habeas 

court to determine whether the petitioner “is in custody in 

violation of the Constitution or laws or treaties of the 

United States.””.

A petitioner proceeding under 28 U.S.C. § 2241(d) must 

file his petition in the district where he is incarcerated, 

and must name the warden as the respondent5. Fernandez v. 

 5 U.S.C. § 2241(d) provides:

Where an application for a writ of habeas corpus 

is made by a person in custody under the judgment 

and sentence of a State court of a State which 

contains two or more Federal judicial districts, 

the application may be filed in the district 

court for the district wherein such person is in 

custody or in the district court for the district 

within which the State court was held which 

convicted and sentenced him and each of such 

district courts shall have concurrent 

jurisdiction to entertain the application. The 

district court for the district wherein such an 

application is filed in the exercise of its 

discretion and in furtherance of justice may 

transfer the application to the other district 

court for hearing and determination.

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United States, 941 F.2d 1488, 1495 (11th Cir. 

1991)("[s]ection 2241 petitions may be brought only in the 

district court for the district in which the inmate is 

incarcerated.") ; see also Rumsfeld v. Padilla, 542 U.S. 

426, 446-47, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004)

("The proviso that district courts may issue the writ only 

'within their respective jurisdictions' forms an important 

corollary to the immediate custodian rule in challenges to 

present physical custody under § 2241. Together they 

compose a simple rule that has been consistently applied in 

the lower courts, including in the context of military 

detentions: Whenever a § 2241 habeas petitioner seeks to 

challenge his present physical custody within the United 

States, he should name his warden as respondent and file 

the petition in the district of confinement."). Although 

Nettles was tried in the Southern District of Alabama, and 

it was this Court that committed him to the custody of the 

Attorney General, he is committed to the Federal Medical 

Center in Rochester, Minnesota. Thus, venue properly lies 

in the United States Court for the District of Minnesota, 

where Nettles is currently confined, as opposed to this 

District.

b. Transfer of Petition. 

 

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Under 28 U.S.C. § 1406(a), when a complaint is filed 

laying venue in the wrong district, a district court may 

dismiss or, in the interests of justice, may transfer that 

action to any district in which it could have been brought. 

In applying § 1406(a), "the decision whether to transfer a 

case is left to the sound discretion of the district court 

and is reviewable only for an abuse of that discretion." 

Roofing & Sheet Metal Services, Inc. v. La Quinta Motor 

Inns, Inc., 689 F.2d 982, 985 (11th Cir. 1982); Minnette v. 

Time Warner, 997 F.2d 1023, 1026 (2nd Cir. 1993) ("Whether 

dismissal or transfer is appropriate lies within the sound 

discretion of the district court."). 

"Generally, the interests of justice [favor] 

transferring a case to the appropriate judicial district 

rather than dismissing it." Simpson v. Fed. Bureau of 

Prisons, 496 F. Supp.2d 187, 194 (D.D.C. 2007); see also

Kapordelis v. Danzig, 387 F. App'x 905 (11th Cir. 2010) (If 

a case is filed in the wrong district, the court must 

dismiss the case, or, in the interests of justice, transfer 

the case to any district in which it could have been 

brought); Gadson v. Unnamed Defendant, 2009 U.S. Dist. 

LEXIS 1176 (N.D. Ga. Jan. 9, 2009) (When venue is improper, 

the court may, in the interest of justice, transfer the 

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case to a district court in which it could have been

brought).

While this Court has the option to transfer Nettles’ 

petition to the appropriate court in Minnesota, the 

undersigned does not find this disposition justified 

because it does not appear that Nettles is eligible for 

habeas corpus relief in Minnesota. "[H]abeas corpus is an 

extraordinary remedy typically available only when 'the 

petitioner has no other remedy.'" Archuleta v. Hedrick, 365 

F.3d 644, 648 (8th Cir. 2004) (quoting Taniguchi v. 

Schultz, 303 F.3d 950, 955 (9th Cir. 2002); see Stack v. 

Boyle, 342 U.S. 1, 6-7, 72 S. Ct. 1, 96 L. Ed. 3 (1951) 

(habeas corpus relief was withheld “where an adequate 

remedy available . . . had not been exhausted.”). As a 

general rule, courts require exhaustion of alternative 

remedies before federal habeas relief is allowed. See

Boumediene v. Bush, 553 U.S. 723, 793, 128 S. Ct. 2229, 

2274, 553 U.S. 723, 793, 171 L. Ed. 2d 41, 94 (2008) 

(“[T]his Court has required exhaustion of alternative 

remedies before a prisoner can seek federal habeas 

relief.”). “While habeas corpus is ‘always available to 

safeguard the fundamental rights of persons wrongly 

incarcerated,’ it ‘is the avenue of last resort.’" Timms 

v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (quoting 

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Martin-Trigona v. Shiff, 702 F.2d 380, 388 (2d Cir. 1983) 

(noting that "habeas corpus traditionally has been accepted 

as the proper vehicle to challenge the constitutionality of 

an order of imprisonment from which there is no route of 

appeal")); Thomas v. Crosby, 371 F.3d 782, 371 F.3d 782, 

789 (11th Cir. 2004)(viewing as analogous the exhaustion 

requirements of § 2254 petitions to those of § 2241 habeas 

petitions). In the case at hand, Nettles has an 

alternative remedy to filing a habeas petition. 

Nettles is currently being hospitalized pursuant to 18 

U.S.C. § 4243(e). This law was enacted as part of the 

Insanity Defense Reform Act of 1984 (“IDRA”), which 

encompasses §§ 17, 4241-4248 of Title 18 of the United 

States Code. The IDRA establishes a complete procedural 

guide for the commitment and discharge of insanity 

acquittees like Nettles. It provides that Nettles is due 

to be confined until he “has recovered from his mental 

disease or defect to such an extent that his release, or 

his conditional release under a prescribed regimen of 

medical, psychiatric, or psychological care or treatment, 

would no longer create a substantial risk of bodily injury 

to another person or serious damage to property of another. 

. . .” 18 U.S.C. § 4243(f). It further stipulates that 

eligibility for release from hospitalization is determined 

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by the director of the medical facility where the acquittee 

is confined, 18 U.S.C. § 4243(f), or by the court after a 

hearing for discharge is conducted. 18 U.S.C. §§ 4243(f), 

4247(h). Additionally, provisions were enacted in the IDRA 

obligating the director of the hospital to “prepare annual 

reports concerning the mental condition of the person and 

containing recommendations concerning the need for his 

continued commitment,” 18 U.S.C. § 4247(e); the requirement 

of annual reporting and continued monitoring is assuredly 

to protect a civilly committed acquittee from confinement 

beyond duration needed for hospitalization and treatment. 

The necessity for protecting one’s liberty interest is 

further recognized and addressed in section 4247, which 

provides:

Regardless of whether the director of the 

facility in which a person is committed has filed 

a certificate pursuant to the provisions of 

subsection . . . (f) of section 4243 [18 USCS § 

4243], counsel for the person or his legal 

guardian may, at any time during such person's 

commitment, file with the court that ordered the 

commitment a motion for a hearing to determine 

whether the person should be discharged from such 

facility, but no such motion may be filed within 

one hundred and eighty days of a court 

determination that the person should continue to 

be committed. A copy of the motion shall be sent 

to the director of the facility in which the 

person is committed and to the attorney for the 

Government.

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18 U.S.C. § 4247(h). Section 4247(h) thereby provides 

a statutory alternative remedy to habeas corpus relief. 

Further, because Nettles is in custody by reason of a 

commitment order issued out of this District, it is this 

Court, not the warden of the medical center in FMC 

Rochester, that may grant Nettles the statutory relief he 

seeks, either conditional or unconditional release. See § 

4247(h); Archuleta, 365 F.3d at 649. Accordingly, rather 

than transferring the petition, the undersigned recommends 

that Nettles’ petition be construed as a motion for 

discharge under 18 U.S.C. § 4247(h). 6

c. Motion Seeking Discharge under 18 U.S.C. 

§4247(h).

There are effectively two ways Nettles may receive a 

discharge, as discussed above: (1) through the director of 

the FMC Rochester to file a certificate with the clerk of 

this Court pursuant to 18 U.S.C. § 4243(f), or (2) through 

a motion for a hearing to determine the possibility of 

release pursuant to 18 U.S.C. § 4247(h). The first method 

 6 Pro se pleadings must be read liberally to determine 

“whether jurisdiction to consider [them] can be founded on 

a legally justifiable base.” Fernandez v. United States,

941 F.2d 1488, 1491 (11th Cir. 1991). Therefore, the Court 

has an “obligation to look behind the label of a motion 

filed by a pro se inmate and determine whether the motion

is, in effect, cognizable under a different remedial 

statutory framework.” United States v. Jordan, 915 F.2d 

622,624–25 (11th Cir. 1990). 

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has yet to occur; as the Court takes judicial notice that 

the docket does not reflect that director of FMC Rochester 

has filed any such certificate as prescribed by § 4243(f). 

Therefore, Nettles’ available remedy for relief is 

established in and provided by § 4247(h). 

Section 4247(h) provides that "counsel for the person 

or his legal guardian" may file a motion for a discharge 

hearing. The statute, thereby, does not authorize a 

committed person to file a motion for a discharge hearing 

on his own behalf. See United States v. Nakamoto, 2 F.

Supp. 2d 1289, 1290 (D. Hawaii 1998) ("an insanity 

acquittee may not seek a hearing pro se to determine 

whether he or she should be discharged under 18 U.S.C. § 

4247(h)"); see also United States v. Hunter, 985 F.2d 1003 

(9th Cir. 1993) (same), vacated as moot, 1 F.3d 843 (9th 

Cir. 1993); United States v. Thomas, 2015 U.S. Dist. LEXIS 

94687, * 2 (E.D. N.C. July 21, 2015) (“The [civilly 

committed] himself may not make such a request pro se, nor 

may the district court conduct such a hearing sua sponte.).

While the Court has the discretion to appoint counsel 

to file a motion for discharge on behalf of Nettles, the 

undersigned finds that the record does not contain any 

information regarding Nettle’s current mental state. Thus, 

there is nothing presently before the Court warranting a 

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motion for discharge let alone the appointment of counsel. 

Accordingly, at this juncture, Nettles’ pro se motion for 

discharge should be denied. The undersigned further 

recommends that an annual report, pursuant to § 

4247(e)(1(B),7 be obtained from the director of the Federal 

Medical Center in Rochester, Minnesota where Nettles is 

currently confined. After review of such report, the Court 

can determine whether it is appropriate, under the 

circumstances, to appoint counsel to represent Nettles in 

pursuing a discharge hearing pursuant to 18 U.S.C. § 

4247(h).

IV. Conclusion.

For the reasons stated herein, the undersigned 

RECOMMENDS that Nettles’ habeas petition, as amended (Doc. 

4), be construed as a motion for discharge under 18 U.S.C. 

§ 4247, that it be DENIED and that this action be DISMISSED

without prejudice. The undersigned further RECOMMENDS that 

 7 The undersigned takes judicial notice of the Court’s 

record and notes that Petitioner Nettles was committed to 

the custody of the Attorney General on November 6, 2013. 

(Crim. No. Doc. 40). Section 4247(e)(1(B) requires the 

director of the facility in which a person is committed 

pursuant to § 4243 to “prepare annual reports concerning 

the mental condition of the person and containing 

recommendations concerning the need for his continued 

commitment. The reports shall be submitted to the court 

that ordered the person’s commitment to the facility and 

copies of the reports shall be submitted to such other 

persons as the court may direct.” 

 

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the Court request an annual report pursuant to 18 U.S.C. § 

4247(e)(1)(B) from the director of the Federal Medical 

Center in Rochester, Minnesota regarding Petitioner 

Nettles; after receipt and review of the annual report, the 

Court will determine whether or not counsel should be 

appointed for purposes of filing a motion for discharge 

hearing pursuant to 18 U.S.C. § 4247(h). 

Notice of Right to File Objections

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); 

Fed.R.Civ.P. 72(b); S.D. ALA GenLR 72(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge’s findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) 

waives the right to challenge on appeal the district 

court’s order based on unobjected-to factual and legal 

conclusions if the party was informed of the time period 

for objecting and the consequences on appeal for failing to 

object. In the absence of a proper objection, however, the 

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court may review on appeal for plain error if necessary in 

the interests of justice.” 11th Cir. R. 3-1. In order to be 

specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing done by 

the Magistrate Judge is not specific. 

DONE this 10th day of March, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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