2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-2009

Glenn Turner v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4531

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Recommended Citation

"Glenn Turner v. USA" (2009). 2009 Decisions. Paper 472.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4531

 

GLENN JOSEPH TURNER, 

a/k/a Glen Joseph Turner

v.

UNITED STATES OF AMERICA

 Glenn Joseph Turner, 

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 07-cv-4846)

District Judge: Honorable Jan E. DuBois

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 6, 2009

Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges

(Opinion filed October 9, 2009)

 

OPINION

 

PER CURIAM

Appellant Glenn Joseph Turner, a pro se litigant, seeks review of the District
 The writ of habeas corpus is available only to persons held “in custody in violation of 1

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). 

Turner was in physical custody in a federal half way house at the time he filed his petition

2

Court’s October 20, 2008 Order denying his petition for writ of habeas corpus, which he

filed pursuant to 28 U.S.C. § 2241. For the reasons set forth below, we will affirm.

I.

In November 1985, Turner was sentenced in federal court to fifteen years of

imprisonment, to be followed by a two-year term of special parole. In June 2005, Turner

was released from federal incarceration into supervised parole, with special conditions. 

In January 2007, Turner was charged with violating the special conditions of his parole

that prohibited him from: (1) associating with members of the Pagan Motorcycle Club;

(2) wearing clothing adorned with logo of the Pagan Motorcycle Club; and (3) leaving the

Eastern District of Pennsylvania without the permission of his supervising U.S. Probation

Officer. Following an April 2007 hearing, the U.S. Parole Commission (“the

Commission”) revoked Turner’s parole and ordered that he serve eleven months before

being re-paroled. Turner appealed the Commission’s decision and the National Appeals

Board (“the Board”) denied relief in a September 2007 opinion. In late December 2007,

Turner was re-paroled from a federal half way house and placed under the supervision the

United States Probation Office of the Eastern District of Pennsylvania.

In November 2007, Turner filed a federal petition for writ of habeas corpus in the

District Court pursuant to 28 U.S.C. § 2241. He argued that the conditions of his parole 1
and is currently paroled with restrictions under the supervision of the U.S. Probation

Office of the Eastern District of Pennsylvania. Accordingly, he met the “custody”

requirement of 28 U.S.C. § 2241. See Jones v. Cunningham, 371 U.S. 236, 243 (1963)

(parole meets the “in custody” requirement for habeas review).

 Because Turner is a federal prisoner, he does not need a certificate of appealability to 2

appeal from the denial of his § 2241 petition. See 28 U.S.C. § 2253(c)(1); United Sates v.

Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000).

3

violate his First Amendment rights of freedom of association and speech. He further

contended that he was illegally charged with leaving the jurisdiction of his supervising

officer and that the authority of the Commission violates the separation of powers

doctrine of the United States Constitution. The District Court denied Turner’s petition,

having concluded that there was a reasonable relationship between the conditions of

Turner’s parole and legitimate government interests. It further found that the standard

travel restriction imposed upon Turner was lawful and that his separation of powers claim

lacks merit. The District Court declined to issue a certificate of appealability and Turner

filed a timely appeal.2

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court's legal conclusions. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d

Cir. 2002). A court's role in reviewing decisions made by the United States Parole

Commission on an application for a writ of habeas corpus is limited. See Gambino v.

Morris, 134 F.3d 156, 160 (3d Cir. 1998). The appropriate standard of review is whether
4

there is a rational basis in the record for the Commission's decision. Id. The court must

only ensure that the Commission's decision is not arbitrary and capricious, nor based on

impermissible considerations. Id. 

After reviewing the record, we agree with the District Court’s conclusion that the

Commission had a rational basis for imposing special conditions on Turner’s parole. 

III.

A. First Amendment Claims

Turner first claimed in his habeas petition that the conditions of his parole violated

his First Amendment rights of freedom of association and speech. Turner argued that

because he committed the crimes resulting in his federal conviction alone, he should not

be restricted from associating, in any way, with members of the Pagan Motorcycle Club

(the “Pagans”). As previously mentioned, the Commission prohibited Turner from

associating with Pagans and wearing clothing with the Pagan logo. These special

conditions were imposed because: (1) Turner’s criminal record showed that his previous

criminal activity was related to his membership in the Pagans and (2) the Pagans’ history

of involvement in criminal activity could result in Turner’s association with convicted

felons. 

A parolee’s activities, even those involving constitutional rights, may be restricted

if there is a reasonable basis to believe that engaging in the prohibited activity could

hinder rehabilitation or pose a danger to society. See United States v. Crandon, 173 F.3d
 The Commission, in determining the conditions of Turner’s parole, was not limited to 3

considering only matters directly related to his most recent offense of conviction. See 18

U.S.C. § 4209(a)(2).

5

122, 127-28 (3d Cir. 1999). In Crandon, we affirmed a supervised release restriction on

Internet access imposed on a defendant convicted of receiving child pornography because

the condition was narrowly tailored and was directly related to deterring Crandon and

protecting the public. Id.; see also United States v. Beros, 833 F.2d 455, 467 (3d Cir.

1987) (restriction on holding union position and receiving union funds was reasonably

related to prevention of future crime based on prior conviction for embezzlement and

misuse of union funds); United States v. Showalter, 933 F.2d 573, 575-76 (7th Cir. 1991)

(restriction of association with other skinheads and neo-Nazis was properly imposed as a

condition of supervised release to deter defendant from engaging in future criminal

conduct). The Ninth Circuit has expressly upheld a special condition of supervised

release which prohibited a parolee from associating with members of motorcycle clubs. 

United States v. Bolinger, 940 F.2d 478, 480-81 (9th Cir. 1991).

Despite Turner’s contentions, there is significant evidence demonstrating that the

special condition restricting his contact with Pagan members is reasonably related to his

prior criminal activity. The Commission imposed the special condition based on 3

Turner’s undisputed long-term relationship with the Pagans, including a period in a highranking position, and because much of his prior criminal activity was related to his

membership in the Pagans. In 1975, Turner was convicted of a firearms offense arising
 Although the condition also prohibited Turner from associating with members of 4

other motorcycle clubs that had a history of criminal activity, it does not appear that

Turner challenged that aspect of the condition in his appeal of the Commission’s ruling. 

It is clear that he did not raise the claim in his habeas petition. Therefore, we will not

address it as neither the Appeals Board nor the District Court considered the

constitutionality of the restriction on association with other motorcycle clubs. 

6

from an incident in which he pointed a gun at a person who was accused of shooting a

member of the Pagans. In 1976, Turner was convicted of participating in a large-scale

methamphetamine and PCP conspiracy that was operated by Pagan members. In 1980,

Turner’s parole was revoked when he went to visit a state inmate who was a known

Pagan member and a co-conspirator in the drug conspiracy. Moreover, at Turner’s most

recent parole hearing, he admitted that he had been in contact with Pagan members while

on parole and that he had an almost life-long affiliation with the Pagans and felt obligated

to them for their support while he was in prison. At no point did Turner contest the

Commission’s finding that the Pagans have a history of involvement in criminal activities.

 We agree with the District Court that the condition prohibiting Turner’s contact

with Pagan members was reasonably related to his prior criminal activity and intended to

deter him from engaging in future criminal activity and to protect the public, and thus was

a valid restraint on his right of freedom of association. See Crandon, 173 F.3d at 127-28. 4

The condition that Turner refrain from wearing the logo of the Pagans is supported

by the same rationale. Although he argues that the Supreme Court’s ruling in Cohen v.

California, 403 U.S. 15 (1971), should lead us to conclude otherwise, his reliance on
7

Cohen is misplaced. In Cohen, the defendant was convicted of disturbing the peace when

he walked through a courthouse wearing a jacket bearing an expletive. Id. at 16. The

Supreme Court vacated his conviction, finding that his conviction rested solely upon the

content of his speech, and thus violated his rights under the First and Fourteenth

Amendments. Id. at 18-19. Here, in contrast, Turner was a parolee and thus subject to

reasonable restrictions on his constitutional rights. The restriction on wearing Pagan

logos in the company of club members is reasonably related to the goals of rehabilitation

and the protection of society.

B. Restrictions on Travel

Turner also claimed that the Commission erred by concluding that he violated his

conditions of parole by traveling outside of the district without permission. As

mentioned, Turner is under the supervision of the U.S. Probation Office in the Eastern

District of Pennsylvania. Turner admitted to the Commission that he traveled to

Delaware to attend a memorial for a Pagan member. However, he argued in his petition

that his travel to Delaware was lawful because Delaware, as well as the district in which

he is paroled, is within the appellate jurisdiction of this Court. The District Court

correctly noted that the fact that Delaware is within the appellate jurisdiction of this Court

does not extend Turner’s ability to travel to every district within the Third Circuit without

the permission of his probation officer. This Court’s jurisdiction under 28 U.S.C. § 1291

is distinct from the jurisdiction of the Commission. See 18 U.S.C. § 4210(a). As a
8

parolee, Turner is in the “legal custody and under the control of the Attorney General”

until the expiration of his parole term. Id. 

Furthermore, to the extent that Turner argues that such travel restrictions in general

are unconstitutional, we have previously held that “conditions of probation include

restrictions on a defendant's right to travel.” United States v. Warren, 186 F.3d 358, 366

(3d Cir. 1999); Williams v. Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003) (“Like

prisoners, . . . parolees . . . have no right to control where they live in the United States;

the right to travel is extinguished for the entire balance of their sentences.”)

Accordingly, the District Court correctly concluded that Turner was properly

charged with a parole violation for leaving the Eastern District of Pennsylvania without

the permission of his probation officer.

C. Separation of Powers Claim

Lastly, the District Court correctly determined that Turner’s separation of powers

claim lacks merit. Under the Doctrine of Separation of Powers, each branch of

government (judicial, executive, legislative) exercises exclusive authority over certain

matters. See I.N.S. v. Chadha, 462 U.S. 919, 951 (1983). 

Turner has not presented a plausible Separation of Powers claim to challenge the

authority of the Commission to impose conditions of parole upon him. The Commission

has full authority to grant, deny or revoke Turner’s parole; the Commission may also

impose or modify the conditions of his parole. See 18 U.S.C. §§§ 4208, 4209, 4214. In
 Appellee’s motion for leave to file its supplemental appendix under seal is granted. 

5

See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994). 

9

doing so, the Commission does not usurp the authority of the judiciary such that its

decisions violate the Doctrine of Separation of Powers. See Geraghty v. U.S. Parole

Commission, 719 F.2d 1199, 1211-12 (3d Cir. 1983). The Commission may lawfully

impose reasonable conditions of parole, see 18 U.S.C. § 4209(a), and, as we have

concluded, the Commission’s conditions in this case are reasonable and rationally related

to the goals of Turner’s parole. 

Accordingly, we will affirm the judgment of the District Court.5