IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10534

ALAN WADE JOHNSON, 

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.

United States Court of Appeals

Fif h Circuit

FILED

August 25, 2017

Lyle W. Cayce

Clerk

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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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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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