OSBORNE v. ORTIZ

Filing 6

MEMORANDUM OPINION & ORDER: Respondent may file a Motion to Dismiss within twenty-one (21) days of the date this Order is filed; if Respondent does not file a Motion to Dismiss the Petition, the Respondent shall file a full and complete answer within twenty-one (21) days of the entry of this Order. Signed by Judge Noel L. Hillman on 2/18/2021. (tf, n.m.)

Case 1:20-cv-20561-NLH Document 6 Filed 02/18/21 Page 1 of 6 PageID: 65

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
BRYAN AARON OSBORNE,
:
:
Civ. No. 20-20561 (NLH)
PETITIONER,
:
v.
:
MEMORANDUM OPINION & ORDER
:
:
DAVID E. ORTIZ,
:
:
RESPONDENT.
:
______________________________:
APPEARANCE:
Bryan Aaron Osborne
51896-424
Fort Dix Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioner pro se
HILLMAN, District Judge
WHEREAS, Petitioner Bryan Aaron Osborne filed a petition
for writ of habeas corpus under 28 U.S.C. § 2241, see ECF No. 1;
and
WHEREAS, Petitioner argues that the conditions of
confinement at FCI Fort Dix violate the Eighth Amendment because
his medical conditions and other risk factors make him extremely
susceptible to COVID-19, id. at 12-13; and
WHEREAS, Petitioner argues the Bureau of Prisons wrongfully
denied his motion for compassionate release under 18 U.S.C. §
3582, id.; and

Case 1:20-cv-20561-NLH Document 6 Filed 02/18/21 Page 2 of 6 PageID: 66

WHEREAS, Petitioner also argues that as a Moor, he cannot
be tried in “Christian courts” and must be released after one
year of imprisonment, id. at 14; see also ECF No. 4; and
WHEREAS, Petitioner argues that his transfer from FCI
Elkton to FCI Fort Dix was done without his consent and in
violation of the United Nations Declaration on the Rights of
Indigenous Peoples, ECF No. 1 at 15; ECF No. 4; and
WHEREAS, Petitioner alleges the COVID-19 vaccine is
untested, ineffective against new strains of COVID-19, and
presently unavailable to prisoners, ECF No. 1 at 16; and
WHEREAS, Rule 4 of the Rules Governing Section 2254 Cases,
applicable to § 2241 cases through Rule 1(b) of the Rules
Governing Section 2254 Cases, requires the Court to dismiss any
claims that clearly would not entitle Petitioner to relief; and
WHEREAS, the Court lacks jurisdiction over Petitioner’s
arguments that the Bureau of Prisons wrongfully denied his
motion for compassionate release under 18 U.S.C. § 3582.
Motions for compassionate release must be filed in the
sentencing court; Petitioner was not sentenced in the District
of New Jersey; and
WHEREAS, Petitioner’s claims based on the Treaty of Peace
and Friendship are frivolous.

“As its title indicates, the

treaty is one of ‘Peace and Friendship’ between the sovereign
states of Morocco and the United States, and it provides that
2

Case 1:20-cv-20561-NLH Document 6 Filed 02/18/21 Page 3 of 6 PageID: 67

subjects or citizens of each country will be held safe by the
other, as well as a protocol for any confrontations that might
arise between the two countries while at sea, during trade or
battle.

It does not contain any language suggesting that the

United States, or any state or territory therein, does not have
jurisdiction over a person violating the law within its
jurisdiction.”

Pitt-Bey v. D.C., 942 A.2d 1132, 1136 (D.C.

2008)(internal citation omitted; see also El Ameen Bey v.
Stumpf, 825 F. Supp. 2d 537, 558 & n.10 (D.N.J. 2011); and
WHEREAS, “[b]eing a declaration, rather than a treaty, the
United Nations Declaration on the Rights of Indigenous Peoples
is not a binding instrument even for the purposes of the
countries that voted in favor of its adoption.”

Marrakush Soc.

v. New Jersey State Police, No. 09-2518, 2009 WL 2366132, at *6
(D.N.J. July 30, 2009).

Petitioner’s arguments based on the

Declaration are without merit; and
WHEREAS, the Court will require the United States to answer
the petition’s allegations that the conditions at FCI Fort Dix
violate Petitioner’s right to be protected from cruel and
unusual punishment.

Petitioner’s claims based on 18 U.S.C. §

3582, the Treaty of Peace and Friendship, and the Declaration on
the Rights of Indigenous Peoples are dismissed,
THEREFORE, IT IS on this

18th

3

day of February, 2021

Case 1:20-cv-20561-NLH Document 6 Filed 02/18/21 Page 4 of 6 PageID: 68

ORDERED that the Clerk shall serve a copy of the Petition,
ECF No. 1, and this Order upon Respondent by regular mail, with
all costs of service advanced by the United States; and it is
further
ORDERED that the Clerk shall forward a copy of the Petition
and this Order to the Chief, Civil Division, United States
Attorney’s Office, at the following email address:

USANJ-

[e-mail]; and it is further
ORDERED that, where the Petition appears to be beyond the
jurisdiction of the Court, within twenty-one (21) days of the
date this Order is filed, Respondent may file a Motion to
Dismiss the Petition on jurisdiction grounds only; and it is
further
ORDERED that, if a Motion to Dismiss is filed, Petitioner
shall have twenty-one (21) days to file an opposition brief, in
which Petitioner may argue any bases for jurisdiction, and to
which Petitioner may attach any relevant exhibits; and it is
further
ORDERED that, if Petitioner files an opposition, Respondent
shall have ten (10) days to file a reply brief; and it is
further
ORDERED that, if the Motion to Dismiss is subsequently
denied, the Court will then direct Respondent to file a full and
complete answer; and it is further
4

Case 1:20-cv-20561-NLH Document 6 Filed 02/18/21 Page 5 of 6 PageID: 69

ORDERED that if Respondent does not file a Motion to
Dismiss the Petition, the Respondent shall file a full and
complete answer to the petition’s allegations that the
conditions at FCI Fort Dix violate Petitioner’s right to be
protected from cruel and unusual punishment within twenty-one
(21) days of the entry of this Order; and it is further
ORDERED that Petitioner’s claims based on 18 U.S.C. § 3582,
the Treaty of Peace and Friendship, and the Declaration on the
Rights of Indigenous Peoples are dismissed, 28 U.S.C. § 2254
Rule 4; and it is further
ORDERED that Respondent shall file and serve with the
answer certified copies of all documents necessary to resolve
Petitioner’s claims and affirmative defenses, including but not
limited to copies of any administrative remedies filed by
Petitioner relevant to the asserted claims; and it is further
ORDERED that within twenty-one (21) days of receipt of the
answer, Petitioner may file a reply to the answer; and it is
further
ORDERED that any request to deviate from this Order to
Answer shall be made by motion; and it is further
ORDERED that within seven (7) days of Petitioner’s release,
be it parole or otherwise, Respondent shall electronically file
a written notice of the same with the Clerk; and it is finally

5

Case 1:20-cv-20561-NLH Document 6 Filed 02/18/21 Page 6 of 6 PageID: 70

ORDERED that the Clerk shall send a copy of this Order to
Petitioner by regular mail.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

6