RECOMMENDATION
CHARLES H. WEIGLE, Magistrate Judge.
Now before the Court is a Motion to Dismiss filed by Respondent, David Davis. (Doc. 23). Also pending is a motion for subpoena filed by Petitioner, Bobby Leon Wynn. (Doc. 33). In accordance with the analysis below, it is RECOMMENDED that Respondent's Motion be GRANTED and that Petitioner's Motion be DENIED as MOOT.
BACKGROUND
The instant habeas petition concerns two separate Bibb County criminal cases. One of those cases terminated in Petitioner's favor in April 2014.1 In that case, case no. 12-cr-68503, Petitioner was charged with armed robbery. (Doc. 23-4, p. 1). In the other case, case no. 9-cr-64860, Petitioner pleaded guilty to possession of a firearm by a convicted felon, for which he was sentenced to five years, three to be served through incarceration and two to be served on probation. (Doc. 23-3, p. 6). Petitioner entered his guilty plea in case no. 9-cr-64860 on December 7, 2009. (Id.).
CUSTODY REQUIREMENT
In order to seek federal habeas relief, a petitioner must be "in custody." See, e.g., Maleng v. Cook, 490 U.S. 488, 491 (1989) (citing 28 U.S.C. § 2241(c)). At the time he filed the instant petition, Petitioner was a pre-trial detainee regarding case no. 12-cr-68503. While pre-trial detention satisfies the custody requirement, see, e.g., Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir. 2003), Bibb County public records show that case no. 12-cr-68503 has terminated in Petitioner's favor, and it is now clear that Petitioner is no longer "in custody" regarding case no. 12-cr-68503. Because the custody requirement is a jurisdictional prerequisite to federal habeas relief, it is recommended that Petitioner's claims regarding case no. 12-cr-68503 be dismissed as moot. It is likewise recommended that Petitioner's Motion for Subpoena (Doc. 33) and his request for removal under 28 U.S.C. § 1443 be dismissed as moot.
TIMELINESS
While Petitioner satisfies the custody requirement regarding case no. 9-cr-64860,2 Petitioner's claims regarding that case are subject to the requirements of 28 U.S.C. § 2254. See, e.g., Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982) ("In the context of habeas proceedings, the `in custody' requirement may . . . be met where a petitioner is on probation"); see also Thomas v. Crosby, 371 F.3d 782, 787 ("A state prisoner cannot evade the procedural requirements of § 2254 by filing something purporting to be a § 2241 petition. "If the terms of § 2254 apply to a state habeas petitioner . . . then we must apply its requirements to him"). Among those requirements is a one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA provides, in relevant part:
a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
28 U.S.C. § 2244(d)(1)(A)
AEDPA further provides that the time during which a properly filed application for State post-conviction or other collateral review is pending shall not be counted toward the limitations period. 28 U.S.C. § 2244(d)(2).
The record in this case indicates that Petitioner pled guilty in case no. 09-cr-64860-01 on December 7, 2009, and that Petitioner filed no direct appeal. (Doc. 23-1, pp. 5-6). Therefore, pursuant to O.C.G.A. § 5-6-38, Petitioner's conviction became "final" 30 days later, on January 6, 2010, over two years before Petitioner filed both his state habeas petition in September 2012, and the instant federal habeas petition in December 2012. Accordingly, Petitioner's habeas claims regarding case no. 9-cr-64860 are clearly untimely.
Petitioner's response to Respondent's timeliness argument focused on the availability of an out-of-time appeal under Georgia law, (Doc. 29, pp. 4-5), but there is no indication that the state courts actually reopened direct review regarding case no. 9-cr-64860, and accordingly, there is no basis to overlook Petitioner's untimeliness. See Gonzalez v. Thaler, 132 S.Ct. 641, 655 (2012) ("a state court's reopening of direct review will reset the limitations period"). Petitioner did not expressly request equitable tolling of the limitations period, and nothing in the record suggests that equitable tolling is warranted. See, e.g., Drew v. Department of Corrections, 297 F.3d 1278, 1286 (11th Cir. 2002) (noting that equitable tolling is "typically applied sparingly,' and that it is normally appropriate only where a petitioner "untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence"). Therefore, it is recommended that Petitioner's habeas claims regarding case no. 9-cr-64860 be dismissed as untimely.
CONCLUSION
After careful review of the record, IT IS RECOMMENDED that Respondent's Motion to Dismiss (Doc. 23) be GRANTED, that Petitioner's Motion for Subpoena (Doc. 33) be DISMISSED as MOOT, and that the instant habeas petition be DISMISSED.
Pursuant to the requirements of Rule 11 of the Rules Governing Section 2254 Cases, it does not appear that Petitioner has made 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) (explaining how to satisfy this showing) (citation omitted). Accordingly, IT IS FURTHER RECOMMENDED that the Court DENY a certificate of appealability in its final order.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation with the District Judge to whom this case is assigned within fourteen (14) days after being served with a copy thereof.
SO RECOMMENDED.
