Case: 16-10534 Document: 00514132257 Page: 1 Date Filed: 08/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-10534 FILED
August 25, 2017
Lyle W. Cayce
ALAN WADE JOHNSON, Clerk
Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; DARLEEN DREW,
Warden, USP-Atlanta; KEN PAXTON, Attorney General, the State of Texas,
Respondents-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CV-524
Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
Alan Wade Johnson, federal prisoner # 09541-079, moves for a certificate
of appealability (COA) to appeal the district court’s denial of relief, which he
requested in a pleading styled as a 28 U.S.C. § 2254 application. Johnson
challenged the imposition of certain conditions of parole that were imposed
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-10534
when he was placed on parole in connection with Texas convictions. The
district court dismissed the § 2254 application as time barred.
Johnson now argues that the district court incorrectly determined that
the § 2254 application was time barred. He also asserts that his claims
challenged the validity of 1976 convictions for aggravated robbery, aggravated
sexual abuse, and aggravated rape rather than conditions of parole. The parole
conditions were imposed in 2012 when he was granted parole in connection
with a 1994 Texas conviction for aggravated robbery. He contends that these
conditions of parole should not have been imposed in connection with his 1976
convictions because the sentences were fully discharged at the time he was
placed on parole in 2012.
To obtain a COA, Johnson must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 483-84 (2000). Where the district court has denied federal habeas
relief on procedural grounds, the applicant must demonstrate that reasonable
jurists would find it debatable whether the motion states a valid claim of the
denial of a constitutional right and whether the district court was correct in its
procedural ruling. Slack, 529 U.S. at 484. Johnson has not met this standard.
To the extent that Johnson sought to challenge his 1976 convictions and
those sentences were discharged, the district court lacked jurisdiction to
consider the § 2254 application because Johnson was not “in custody” for
purposes of § 2254. See § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989);
see also Lackawanna County Dist. Att’y v. Coss, 532 U.S. 394, 401-04 (2001).
The fact that Johnson is required to register as a sex offender as a result of his
1976 convictions does not mean that he is “in custody” within the meaning of
§ 2254. See Sullivan v. Stephens, 582 F. App’x 375, 375 (5th Cir. 2014).
Moreover, to the extent that Johnson argues that his 1976 sentences were
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No. 16-10534
effectively converted to life sentences by the imposition of parole conditions in
2012, he has not made a substantial showing that the district court erred by
finding his claim time barred. See 28 U.S.C. § 2244(d).
However, to the extent that Johnson sought to challenge the imposition
of conditions of parole, the pleading should have been construed as a 42 U.S.C.
§ 1983 complaint. A challenge to the imposition of conditions of parole sounds
under 42 U.S.C. § 1983 rather than as a habeas action. See Carson v. Johnson,
112 F.3d 818, 820-21 (5th Cir. 1997); Cook v. Texas Dep’t of Criminal Justice,
37 F.3d 166, 168-69 (5th Cir. 1994); see also Jennings v. Owens, 602 F.3d 652,
654 (5th Cir. 2010).
We construe Johnson’s request for a COA as both a request for a COA to
appeal the denial of his § 2254 claims and an appeal of the dismissal of any
§ 1983 claims. The district court failed to address whether Johnson stated
cognizable claims under § 1983. See Serio v. Member of La. State. Bd. of
Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987).
Johnson’s request for a COA to appeal the dismissal of his § 2254 claims
is DENIED. His motion for immediate relief is DENIED. The district court’s
dismissal of Johnson’s claims under § 1983 is VACATED, and the case is
REMANDED for the district court to consider whether Johnson has alleged
any civil rights claims cognizable under § 1983.
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