UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DONALD LEMPAR, §

 §

Petitioner, §

 § 

v. § Civil No. SA-20-CA-0443-FB

 § 

LORIE DAVIS, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

 §

Respondent. §

ORDER OF DISMISSAL

Before the Court are petitioner Donald Lempar’s Petition forWrit ofHabeas Corpus pursuant

to 28 U.S.C. § 2254 (ECF No. 1) and supplemental Memorandum in Support (ECF No. 2),

respondent Lorie Davis’s Motion to Dismiss (ECF No. 10), and petitioner’s Reply (ECF No. 13)

thereto. Having reviewed the record and pleadings submitted by both parties, the Court concludes

that petitioner’s federal habeas corpus petition should be dismissed without prejudice for lack of

jurisdiction. Petitioner is also denied a certificate of appealability. 

Analysis

In June 2004, petitioner was convicted by a Bexar County jury of two counts of aggravated

sexual assault of a child and two counts of indecency with a child by sexual contact. The jury

sentenced petitioner to fifteen years of imprisonment for the first two counts and five years of

imprisonment for the second two counts, with the four sentences to run concurrently. State v.

Lempar, No. 2003-CR-5620 (175th Dist. Ct., Bexar Cnty., Tex. June 18, 2004) (ECF No. 11-5 at

1-8). On April 7, 2020, petitioner filed the instant petition for federal habeas corpus relief

challenging the constitutionality of these state court convictions. (ECF No. 1). Because petitioner

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has already fully discharged these sentences, however, he is no longer “in custody” pursuant to these

convictions. Thus, this Court lacks jurisdiction under § 2254 to entertain his challenge. Maleng v.

Cook, 490 U.S. 485, 492 (1989) (“While we have very liberally construed the ‘in custody’

requirement for purposes of federal habeas, we have never extended it to the situation where a

habeas petitioner suffers no present restraint from a conviction.”). 

While petitioner maintains that he is still “in custody” because he is still subject to the sex

offender registration requirements of his conviction, that argument has been repeatedly rejected by

the Fifth Circuit Court of Appeals. See Johnson v. Davis, 697 F. App’x 274, 275 (5th Cir. 2017)

(unpublished) (finding the requirement to register as a sex offender as a result of conviction does not

mean that a petitioner is “in custody” within the meaning of § 2254); Sullivan v. Stephens, 582 F.

App’x 375, 375 (5th Cir. 2014) (unpublished) (same). Petitioner has cited no relevant authority to

the contrary. As such, petitioner’s federal petition will be dismissed without prejudice for lack of

jurisdiction. 

Conclusion

Rule 4 Governing Habeas Corpus Proceedings states a habeas corpus petition may be

summarily dismissed “[i]f it plainly appears from the face of the petition and any exhibits annexed

to it that the petitioner is not entitled to relief in the district court.” Because petitioner has not

satisfied the preconditions for review set forth by § 2254, dismissal of his petition is warranted. 

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent Lorie Davis’s Motion to Dismiss, filed June 8, 2020 (ECF No. 10), is

GRANTED;

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2. Petitioner Donald Lempar’s Petition for Writ of HabeasCorpus pursuant to 28 U.S.C.

§ 2254 (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction; 

3. Petitioner failed to make “a substantial showing of the denial of a federal right” and

cannot make a substantial showing that this Court’s procedural rulings are incorrect as required by

FED. R. APP. P. 22 for a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Therefore, this Court DENIES petitioner a certificate of appealability. See Rule 11(a) of

the Rules Governing § 2254 Proceedings; and

4. All remaining motions, if any, are DENIED, and this case is now CLOSED.

It is so ORDERED.

SIGNED this 14th day of July, 2020.

 _________________________________________________

 FRED BIERY

 UNITED STATES DISTRICT JUDGE

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