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https://www.courtlistener.com/api/rest/v3/opinions/8477748/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dequilla Walker appeals a district court order and judgment dismissing her complaint against the Charlotte-Mecklenburg Schools. We have reviewed the record and the opinion and affirm for the reasons cited by the district court. See Walker v. Charlotte-Mecklenburg Schools, No. 3:09-cv-00035-RJC-DCK, 2009 WL 3762971 (W.D.N.C. Nov. 9, 2009). We also find the magistrate judge did not abuse his discretion in denying Walker’s motion to amend the complaint. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477750/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin C. Umphreyville appeals a district court order granting summary judgment to Charles W. Gittins and dismissing his complaint. We have reviewed the record and the district court’s memorandum opinion and affirm for the reasons cited by the district court. See Umphreyville v. Gittins, 662 F.Supp.2d 501 (2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *461and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477752/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David K. and Patricia M. Everson appeal the district court’s orders adopting the recommendation of the magistrate judge and dismissing their 42 U.S.C. § 1983 (2006) civil rights action, denying their motion for recusal, and issuing a pre-filing injunction against them. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court in both its orders, as well as the judgment, dated July 15, 2009. Everson v. Doughton, No. 1:08— cv-00887-JAB-PTS (M.D.N.C. July 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477754/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Mullins appeals the district court’s orders denying his motion for leave to amend his complaint and granting the Appellee’s motion for summary judgment on Mullins’ claim of age discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Mullins v. Mayor, No. 1:07-cv-02690-CCB, 2009 WL 248041 (D.Md. Jan. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477756/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Issac Worrell appeals the district court’s order denying his motion for modification of his sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United, States v. Worrell, No. 4:03-cr-00049-H-1 (E.D.N.C. Oct. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477758/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michel Andre Dukes appeals the district court’s order granting the Defendant summary judgment on Dukes’ 42 U.S.C. § 1983 (2006) claims against him. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Dukes v. Richards, No. 5:06-ct-03094-D (E.D.N.C. Aug. 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477760/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Edward Wall appeals the district court’s order denying Wall’s 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wall, No. 3:99-cr-00024-FDW-9 (W.D.N.C. Aug. 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477763/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Annette Ross appeals the district court’s orders dismissing her 42 U.S.C. § 1983 (2006) complaint without prejudice and de*481nying her motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ross v. Bass, No. 7:09-cv-00243-jct-mfu, 2009 WL 2588445 (W.D.Va. Aug. 20) & (Sept. 4, 2009). We deny Ross’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477749/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dequilla Walker appeals a district court order and judgment dismissing her complaint against the Charlotte-Mecklenburg Schools. We have reviewed the record and the opinion and affirm for the reasons cited by the district court. See Walker v. Charlotte-Mecklenburg Schools, No. 3:09-cv-00035-RJC-DCK, 2009 WL 3762971 (W.D.N.C. Nov. 9, 2009). We also find the magistrate judge did not abuse his discretion in denying Walker’s motion to amend the complaint. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477753/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David K. and Patricia M. Everson appeal the district court’s orders adopting the recommendation of the magistrate judge and dismissing their 42 U.S.C. § 1983 (2006) civil rights action, denying their motion for recusal, and issuing a pre-filing injunction against them. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court in both its orders, as well as the judgment, dated July 15, 2009. Everson v. Doughton, No. 1:08— cv-00887-JAB-PTS (M.D.N.C. July 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477755/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Mullins appeals the district court’s orders denying his motion for leave to amend his complaint and granting the Appellee’s motion for summary judgment on Mullins’ claim of age discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Mullins v. Mayor, No. 1:07-cv-02690-CCB, 2009 WL 248041 (D.Md. Jan. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477757/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Issac Worrell appeals the district court’s order denying his motion for modification of his sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United, States v. Worrell, No. 4:03-cr-00049-H-1 (E.D.N.C. Oct. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477759/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michel Andre Dukes appeals the district court’s order granting the Defendant summary judgment on Dukes’ 42 U.S.C. § 1983 (2006) claims against him. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Dukes v. Richards, No. 5:06-ct-03094-D (E.D.N.C. Aug. 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477761/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Edward Wall appeals the district court’s order denying Wall’s 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wall, No. 3:99-cr-00024-FDW-9 (W.D.N.C. Aug. 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477762/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Annette Ross appeals the district court’s orders dismissing her 42 U.S.C. § 1983 (2006) complaint without prejudice and de*481nying her motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ross v. Bass, No. 7:09-cv-00243-jct-mfu, 2009 WL 2588445 (W.D.Va. Aug. 20) & (Sept. 4, 2009). We deny Ross’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477764/
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PER CURIAM: *
The attorney appointed to represent Jose Efren Velasquez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Velasquez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tii 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477774/
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PER CURIAM: *
The Federal Public Defender appointed to represent Jorge Erasmo Sanchez-Gue*507vara has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Sanchez-Guevara has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477776/
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PER CURIAM: *
The Federal Public Defender appointed to represent Jesus Domingo Mendivil-Pa-checo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mendivil-Paeheco has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477806/
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ORDER
A petition for rehearing en banc having been filed by the Appellants, and the matter having first been referred as a petition for rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on September 15, 2009.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477765/
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PER CURIAM: *
The attorney appointed to represent Jose Efren Velasquez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Velasquez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tii 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477766/
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PER CURIAM: *
The Federal Public Defender appointed to represent Gabriel Landin-Alvarez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Landin-Alvarez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is ex*494cused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477769/
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PER CURIAM: *
The Federal Public Defender appointed to represent Gloria Marina Canales Hernandez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ca-nales Hernandez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477771/
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PER CURIAM: *
The attorney appointed to represent Ignacio Aranda-Camargo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aranda-Camargo has filed a response. Our independent review of the record, counsel’s brief, and Aranda-Ca-margo’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477773/
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PER CURIAM: *
The Federal Public Defender appointed to represent Alonzo Valenzuela-Lopez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Valenzuela-Lopez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477775/
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PER CURIAM: *
The Federal Public Defender appointed to represent Jorge Erasmo Sanchez-Gue*507vara has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Sanchez-Guevara has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477777/
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PER CURIAM: *
The Federal Public Defender appointed to represent Jesus Domingo Mendivil-Pa-checo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mendivil-Paeheco has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477778/
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PER CURIAM: *
The Federal Public Defender appointed to represent Jose Santos Zuniga-Veras has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Zuniga-Veras has not filed a response. Our independent review of the record and counsel’s brief discloses *511no nonft'ivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477780/
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ORDER
Kenneth Alen entered into an agreement to plead guilty to one count of conspiring to distribute heroin, 21 U.S.C. §§ 846, 841(a)(1), and one count of possessing heroin with intent to distribute, id. § 841(a)(1). The parties agreed that Alen would be sentenced to a term of imprisonment calculated at 67 percent of the low end of either the applicable guidelines range or the statutory minimum sentence, whichever is greater. See Fed.R.CrimP. 11(c)(1)(C). The district court accepted the plea agreement and sentenced Alen to a total of 60 months’ imprisonment — -four months less than the agreed-upon calculation. Alen appealed. His appointed counsel now seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they have concluded that the appeal is frivolous. We invited Allen to comment on counsel’s submission, see Cir. R. 51(b), but he did not respond. Our review, though, is limited to the potential issues identified in counsel’s brief, United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), provided the brief appears to be thorough and professional; and it does.
We lack jurisdiction under 18 U.S.C. § 3742(c)(1) to review Alen’s sentence. When a defendant agrees to a specific Rule 11(c)(1)(C) sentence, Congress has limited our jurisdiction to review the sentence to four grounds: that his guilty plea was involuntary, that the sentence imposed is greater than what he bargained for, that the guidelines range was improperly calculated, or that his sentence was imposed in violation of the law. See 18 U.S.C. § 3742(a)(1), (c)(1); United States v. Gibson, 490 F.3d 604, 607 (7th Cir.2007); United States v. Cieslowski, 410 F.3d 353, 363-64 (7th Cir.2005); United States v. Barnes, 83 F.3d 934, 941 (7th Cir.1996). None is present. Counsel informs us that Alen does not want his guilty pleas set aside, and we know that his 60-month sentence, which was based on a proper calculation of the guidelines range, is four months less than what he bargained for, and does not exceed the statutory maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B).
*669Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477782/
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ORDER
David Carter ordered the killing of a prison warden. A state court in Illinois convicted him of first-degree murder in 1991 and sentenced him to life in prison. In this appeal from the dismissal of his petition for a writ of habeas corpus, see 28 U.S.C. § 2254, Carter argues that the district court erred in concluding that the petition is untimely. We affirm the judgment.
Carter initially filed a § 2254 petition in 1997, but he subsequently unearthed an additional claim. That claim had not been presented to the Illinois courts, so Carter filed a state postconviction petition in 1998 and requested a stay in the federal proceedings while the Illinois courts considered his new claim. The district court granted that request in 1999. Later that year, however, the court granted the state’s motion to dismiss Carter’s petition without prejudice for failure to exhaust. The order of dismissal provided that Carter could refile after exhausting his claims in state court, without setting a deadline for refiling. Carter finally exhausted his state remedies on March 29, 2006, when *670the Supreme Court of Illinois declined to review the dismissal of Carter’s postcon-viction petition. Carter, though, waited until March 2007 to return to federal court. The district court concluded that Carter had not been diligent in refiling his petition and thus it is time-barred.
Although Carter devotes the majority of his appellate briefs to his substantive claims, the district court could not consider those claims unless his petition is in fact timely. Carter argues that the absence of a refiling deadline in the 1999 order of dismissal meant that he had until March 29, 2007 — one year after he exhausted his state postconviction remedies — to refile in federal court. There is no support for Carter’s position. On the contrary, Carter needed to return to federal court within a reasonable time after exhausting his state-court remedies. We agree with the district court that waiting nearly a year to refile was not reasonable, and that Carter’s lack of diligence caused his petition to be untimely. See Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).
We have considered Carter’s alternative arguments for excusing the untimeliness of his petition and conclude that they have no merit.
Affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/8477784/
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ORDER
Richard Hoeft, a former Wisconsin inmate, brought suit under 42 U.S.C. § 1983 claiming that Robert Harrop, a sergeant at the Flambeau Correctional Center, was deliberately indifferent to a serious medical need in violation of the Eighth Amendment. The district court granted summary judgment for Harrop. We affirm that decision.
We recite the facts in the light most favorable to Hoeft. While imprisoned at Flambeau in June 2008, Hoeft complained to Dr. Fern Springs, a prison physician, that he was experiencing pain in his hands and forearms that was causing him difficulty performing his job as a gardener. After observing symptoms consistent with carpal tunnel syndrome, Dr. Springs gave Hoeft a steroid injection and placed him on a “no work” restriction for two days. He then was restricted to light duty, which *682allowed him to work at his own pace and avoid lifting items weighing more than 20 pounds. Dr. Springs later referred Hoeft to a clinic for further evaluation, but the results are not disclosed in the record.
Hoeft was still restricted to light duty in August 2008 when Harrop ordered him to help other inmates unload a delivery truck. Hoeft informed Harrop about his restriction, and after verifying that restriction, Harrop told Hoeft he could still unload the truck, as some of the items weighed under 20 pounds. But Hoeft asserts that Harrop made him unload any item on the truck, including those weighing more than 20 pounds, and told him to hurry. Harrop counters that he told Hoeft to work only within his restriction and at his own pace. Unloading the truck caused Hoeft to experience pain in his hands and forearms, but he did not complain to Harrop or seek medical attention. In the following month Hoeft did seek medical treatment for two other injuries, but neither time did he mention problems with his hands or forearms. Then in November 2008, shortly before his release from prison, Hoeft commenced this § 1983 suit alleging that Har-rop forced him to unload the truck despite his light-duty restriction.
The district court concluded that a reasonable jury could find that Harrop knowingly disregarded Hoeft’s light-duty restriction, but granted Harrop’s motion for summary judgment because Hoeft introduced no evidence that unloading the truck caused him compensable harm. The court explained that claims of deliberate indifference require a showing of extreme deprivation, not mere discomfort, and yet Hoeft had not submitted any evidence about the severity or duration of his subsequent pain. The court also evaluated but rejected Hoeft’s contention that unloading the truck “could” have worsened his condition for the future. The court reasoned that Hoeft lacked evidence from an expert to support his belief that ill effects from unloading the truck could become manifest later, and that, regardless, the Eighth Amendment does not protect inmates against exposure to a risk of harm.
In this court Hoeft seizes on the district court’s misstatement that the Eighth Amendment does not forbid indifference to a risk of future harm. See Helling v. McKinney, 509 U.S. 25, 33-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). But the court’s error cannot benefit Hoeft. When the medical issue concerns an inmate’s future health and not a present need, the inmate must establish that the risk he complains about is one that society deems “to be so grave that it violates contemporary standards of decency to expose anyone unwillingly.” Id. at 36, 113 S.Ct. 2475; Board v. Farnham, 394 F.3d 469, 479 (7th Cir.2005). Even if an increased risk of carpal tunnel syndrome satisfied that standard, Hoeft still needed evidence that significant complications resulted or are reasonably certain to result from following Harrop’s orders. See Henderson v. Sheahan, 196 F.3d 839, 852 (7th Cir.1999).
As Hoeft failed to submit any evidence that unloading the truck caused further injury, the district court properly granted summary judgment. See Henderson, 196 F.3d at 852. Hoeft presented no medical testimony about the effect on his condition of lifting items over 20 pounds nor any evidence that his condition had in fact worsened from the unloading, outside of an assertion that his hands “were a lot more painful than before.” The court properly found that this vague statement — coupled with Hoeft’s failure to mention any pain during subsequent medical appointments— was not enough for a jury to reasonably find for Hoeft. Without medical knowledge, Hoeft was unqualified to opine on the likelihood of future aggravation of his possible carpal tunnel syndrome. See *683Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir.2001). Expert testimony is required when the causal link between an alleged deprivation and injury is not within the common experience or observation of the average juror, see Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir.2009); United States v. Christian, 342 F.3d 744, 750 (7th Cir.2003), and the effect of external stres-sors on carpal tunnel syndrome is not a matter of common experience, see, e.g., Doty v. Illinois Cent. R.R. Co., 162 F.3d 460, 462-63 (7th Cir.1998) (affirming summary judgment where FELA plaintiff presented insufficient evidence to link his workplace to his carpal tunnel syndrome). Even if we assume that Hoeft had carpal tunnel syndrome in the first place, the average juror would not know whether lifting heavy boxes would worsen the condition or simply cause temporary discomfort. Dr. Springs’ affidavit does not discuss the effects of heavy lifting on carpal tunnel syndrome, and Hoeft did not submit an affidavit from any other medical source. Accordingly, any speculation by Hoeft about a potential injury was insufficient to withstand summary judgment. See Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir.2008).
AFFIRMED.
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PER CURIAM.
Fontaine Demmond Sherman appeals the district court’s1 denial of his Federal Rule of Criminal Procedure 33 motions for a new trial based on newly discovered evidence. We affirm for the reasons stated by the district court. See 8th Cir. R. 47B.
. The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.
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MEMORANDUM *
Galina Edvardouna Tupikovskaya (“Tu-pikovskaya”), a native and citizen of Uzbekistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the BIA.
The IJ denied petitioner’s applications for relief because he found Tupikovskaya not credible. The BIA affirmed the IJ’s decision without opinion under 8 C.F.R. § 1003.1(e)(4). Accordingly, we review the IJ’s decision. See Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004). We review credibility determinations for substantial evidence. See Soto-Olarte v. Holder, 555 F.3d 1089,1091 (9th Cir.2009).
I. Credibility
We recite the facts only as needed to explain our decision. The IJ based his adverse credibility finding on his misstatements of the record, speculation, failure to provide an opportunity to explain discrepancies or to consider those explanations, an unsubstantiated demeanor finding, and an erroneous requirement of corroborative evidence. We conclude that substantial *744evidence does not support the IJ’s adverse credibility finding;
a. The IJ misstated the record
In several instances, the IJ misstated the record, making factual errors. First, the IJ erroneously concluded that Tupikovskaya did not know that BIRLIK’s activities were restricted. Tupikovskaya repeatedly demonstrated that she knew that BIRLIK was an illegal organization through her testimony, asylum application, and asylum declaration.
Second, the IJ erroneously found that Tupikovskaya failed to mention on direct examination that her activities for BIRLIK’s women’s section were secret. Tupikovskaya emphasized that her participation in the inspections of health conditions for working women was “illegal.” Tupikovskaya maintained throughout her testimony, including on direct examination and in her asylum declaration, that she conducted research under the auspices of a non-profit organization named “Counterpart Consortium.” When conducting her research, Tupikov-skaya provided a document with a seal from Counterpart Consortium, although she was really working for BIRLIK. Although Tupikovskaya was working for BIRLIK, she had to do so under the pretense of working for Counterpart Consortium, the implication being that Tupikovskaya’s work was secret.
Third, the IJ asked Tupikovskaya what steps she had taken to help her husband. The record reveals that in her first response to the IJ’s question Tupikovskaya explained that she went to the Israeli embassy to seek asylum for herself and for her husband. The IJ misstated the record, then, when he found that Tupikovska-ya had initially answered his question with regard to only herself by saying that she sought to immigrate to Israel.
The IJ’s adverse credibility finding cannot stand based on these three misstatements of record.
b. The IJ engaged in speculation and conjecture
Under Shah v. INS, “[speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence.” 220 F.3d 1062, 1071 (9th Cir.2000). In this case, the IJ engaged in speculation and conjecture on at least two occasions.
First, the IJ engaged in speculation and conjecture when he found Tupikovskaya’s membership in BIRLIK suspect because she claimed that BIRLIK sent her to work in Moscow. Nothing in the record supports the IJ’s belief that BIRLIK, as an underground organization, would not be able to send its members abroad. In fact, the record supports the proposition that BIRLIK members were active outside Uzbekistan during the 1990s. The 2002 U.S. State Department Human Rights Country Report for Uzbekistan states that an exit visa was not required for Uzbeki nationals to travel from Uzbekistan to most countries of the former Soviet Union.
Second, the IJ engaged in speculation and conjecture when he found that Tupi-kovskaya and her son’s “close relationship” meant that Tupikovskaya would have informed her son of her BIRLIK activities. The IJ erred in speculating as to what a mother may or may not share with her son, particularly when information-sharing could be dangerous. See, e.g., Kumar v. Gonzales, 444 F.3d 1043, 1052 (9th Cir. 2006) (“IJ’s adverse credibility determination, insofar as it was based upon his opinion regarding what brothers from India who had grown up and fled India together might or might not do, was purely conjecture.”).
*745As such, the IJ’s findings, based on speculation and conjecture, do not provide substantial evidence to support the IJ’s adverse credibility finding.
c. The IJ failed to provide Tupikov-skaya with a reasonable opportunity to address inconsistencies
A petitioner must be provided with a “reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). In this case, the IJ failed, on at least two occasions, to provide Tupikovskaya with a reasonable opportunity to explain any perceived inconsistencies.
First, the IJ based his adverse credibility finding in part on Tupikovskaya’s failure to seek asylum from the U.S. Embassy in Moscow, yet the IJ did not give Tupikovskaya an opportunity to explain her failure to do so.
Second, the IJ erred in basing his adverse credibility finding in part on his perceived discrepancy between the description Tupikovskaya gave in her asylum application of the clothing she wore to her U.S. embassy interview in Tashkent, Uzbekistan, and the description of that clothing that Tupikovskaya gave at her hearing. The only inconsistency between Tupikov-skaya’s two descriptions of her attire was that Tupikovskaya’s asylum declaration listed that she wore dark glasses, while she did not mention wearing glasses in court.1 The IJ did not, however, question Tupikovskaya in court about whether she was wearing dark glasses or anything else at her U.S. Embassy interview in Tashkent. Thus, the IJ erred in basing his adverse credibility finding on this perceived discrepancy because Tupikovskaya had no opportunity to explain any potential inconsistency.2
d. The IJ failed to consider and address Tupikovskaya’s explanations for several discrepancies
The IJ must consider and address a petitioner’s explanation for a discrepancy. See, e.g., Soto-Olarte, 555 F.3d at 1091 (“[IJ’s] lack of consideration given to [petitioner’s] proffered explanation was error and prevented] the underlying inconsistency from serving as substantial evidence.”). Here, the IJ failed to address Tupikovskaya’s plausible explanations for discrepancies in her case on five occasions and erroneously rejected her explanation on one occasion.
First, the IJ made his adverse credibility finding in part on Tupikovskaya’s lack of knowledge regarding the specific date that her political organization, BIRLIK, was banned. Tupikovskaya explained that all opposition organizations in Uzbekistan were banned in 1993, and that she was unsure of BIRLIK’s exact ban date because she joined after BIRLIK was already underground. None of the country conditions materials, including the 2002 Country Report, found in the record give a definitive date for when BIRLIK was banned. The IJ’s expectation that Tupikovskaya would know the specific date BIRLIK was banned is likely unreasonable and he erred in failing to address Tupikovskaya’s explanation for her lack of knowledge of BIRLIK’s specific ban date.
*746Second, the IJ based his adverse credibility finding in part on Tupikovskaya’s failure to submit the published report containing the data she collected on BIRLIK’s behalf. Tupikovskaya explained that she did not write or publish the report, but only compiled the research and emphasized that she did not receive a copy of, or even know the name or publication date of, the report. Tupikovskaya explained that she learned her name was associated with the report because the Uzbek security service, when in the process of arresting, detaining, and beating her, told her that they knew her name because she stated her name to enter the factories where she gathered data for the report. The IJ erred in failing to address Tupikovskaya’s explanation for her failure to submit the report as evidence.
Third, the IJ based his adverse credibility finding on Tupikovskaya’s failure to make additional efforts to help her incarcerated husband. Tupikovskaya explained that she feared for her own life and was told by members of BIRLIK to go into hiding, not to call anybody, and not to leave the house. The record supports this explanation. Further, Tupikovskaya explained that no communication was allowed with political prisoners, so she relied on reports from BIRLIK members regarding her husband’s location. The IJ erred in failing to address Tupikovskaya’s explanation for her failure to make additional efforts to help her husband.
Fourth, the IJ based his adverse credibility finding in part on the fact that Tupi-kovskaya’s son, Yevgenii, did not know the date that his stepfather, Ilia, had joined BIRLIK. Ilia had joined BIRLIK before he married Yevgenii’s mother. Yevgenii explained that he was not close to Ilia and did not talk to him about BIRLIK. Further, Yevgenii and Ilia shared a home for less than a year, approximately six months. The IJ did not address these facts, which adequately explained why Yevgenii did not know when Ilia joined BIRLIK.
Fifth, the IJ erred in basing his adverse credibility finding on his finding that Yevgenii attributed Tupikovskaya’s 1998 arrest to Tupikovskaya or Ilia having made a speech on the radio in January 2000. Yevgenii began his testimony by explaining that he only had a “little bit” of knowledge about his mother’s activities. Yevgenii had no firsthand knowledge of either of his mother’s arrests because he had moved to the U.S. in August 1998, before either of Tupikovskaya’s arrests occurred. He admitted that he did not know the date of his mother’s arrest and that he thought her arrest was “probably” because of her activities in Moscow. Further, the government’s questioning of Yevgenii regarding Tupikovskaya’s arrests was confusing. The government attorney asked Yevgenii if he knew why his mother had been arrested, without specifying to which arrest he referred-the arrest in Uzbekistan in 1998 or the arrest in Moscow in 2000. Thus the IJ erred in finding that Yevgenii’s testimony undermined Tupikov-skaya’s claim and in failing to address Yevgenii’s explanation for his confusion.
Sixth, and finally, the IJ based his adverse credibility finding in part on the inconsistency regarding Tupikovskaya’s employment history. In the section for the name and address of the employer, Tupikovskaya’s asylum application listed her occupation between 1990 and 1999 as an engineer for a company attached to the Uzbek Ministry of Agriculture. When the ÍJ questioned Tupikovskaya about this job, she immediately answered that she was “considered to be on the list there.” Tupi-kovskaya testified that according to her documents, she was employed, but in reality she was not employed. Tupikovskaya explained that she did not actually go to *747work, but that she was kept on the payroll so that the officials at the company could keep her paycheck. Rather than working, Tupikovskaya stated that she stayed at home caring for her son and worked on BIRLIK assignments, which she also referred to as the “opposition organization,” after she joined BIRLIK in May 1997.
The IJ did not believe Tupikovskaya’s explanation that she was merely “on the books” and stated that Tupikovskaya sought to downplay her role as an engineer affiliated with the government because the job would undermine her claim of persecution for her opposition activities. Even if Tupikovskaya had been employed by a government affiliated company, the IJ’s conclusion that she could not also be a member of BIRLIK is speculative and unsupported by any record evidence. The IJ ignored testimony from Tupikovskaya’s son who explained that Tupikovskaya worked when she “was younger,” but was then a housewife doing “basic stuff’ during the 1990s. When the IJ asked Tupikov-skaya what she was doing during the nine year period at issue, Tupikovskaya replied that she “[w]as staying at home; was busy with assignments from BIRLIK.” This statement is consistent with Tupikovska-ya’s previous testimony that she joined BIRLIK in May 1997. From 1990 to May 1997, Tupikovskaya was “staying at home,” which she later specified meant that she was caring for her son; after May 1997, she worked on BIRLIK assignments. The IJ also ignored Tupikovskaya’s testimony that she and her husband were both laid off after the fall of the Soviet Union. Therefore, the IJ erred in not accepting Tupikovskaya’s plausible explanation for why she listed her employer on her asylum application.
e. The IJ did not specifically and cogently explain his finding on Tupi-kovskaya’s demeanor
Special deference is accorded to credibility determinations based on an applicant’s demeanor. Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999). An IJ’s demeanor-based negative credibility finding must specifically and cogently refer to the non-credible aspects of the applicant’s demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003).
In this case, the IJ observed that Tupikovskaya “displayed virtually no emotion” when testifying about her husband’s sentence and that she “seemed almost indifferent” to his fate. The IJ failed to specifically explain which aspects of Tupikovskaya’s demeanor led him to draw these conclusions. The IJ did not specifically and cogently refer to the non-credible aspects of Tupikovskaya’s demeanor, as required under Amlampalam, 353 F.3d at 686.
f. The IJ erred in requiring corroborative evidence
Where an IJ’s adverse credibility finding is unsupported by substantial evidence, no corroborative evidence is required. See Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000) (“the BIA may not require independent corroborating evidence from an asylum applicant who testifies credibly....”).3 As discussed above, substantial evidence does not support the IJ’s adverse credibility finding, so Tupikovskaya should be deemed credible. Because corroborative evidence is not required where a petitioner has testified credibly, the IJ erred in finding Tupikovskaya not credible because she failed to *748submit the published BIRLIK report on women’s health.
IV. Judicial Bias
In her opening brief Tupikovskaya claimed that the IJ was biased and that his adverse credibility finding should be overturned. The government claimed that Tu-pikovskaya failed to exhaust her administrative remedies with respect to the bias claim because she did not raise it in front of the BIA. At oral argument Tupikovska-ya all but abandoned her judicial bias claim. We need not address this issue because we vacate the IJ’s adverse credibility finding and remand Tupikovskaya’s case to the BIA.
V. Conclusion
Because the IJ’s adverse credibility finding was not supported by substantial evidence, we GRANT the petition and REMAND to the BIA for further proceedings to determine whether, accepting Tupikov-skaya’s testimony as credible, she is eligible for relief. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
PETITION GRANTED AND REMANDED
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The difference in Tupikovskaya's description between a "black kerchief' and a "dark shawl” is possibly a minor inconsistency and possibly no inconsistency at all due to a discrepancy in translation. Therefore it cannot support an adverse credibility finding. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003).
. Also, the inconsistency likely does not go to the heart of Tupikovskaya's asylum claim. See Singh v. Ashcroft, 301 F.3d 1109, 1111-12 (9th Cir.2002).
. Tupikovskaya filed her application for relief on November 26, 2001, prior to May 11, 2005, the effective date of the REAL ID Act. See Sinha v. Holder, 564 F.3d 1015, 1021 n. 3 (9th Cir.2009) (applying pre-REAL ID Act standards because petitioner’s asylum application was filed before May 11, 2005).
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ORDER
Kenneth Alen entered into an agreement to plead guilty to one count of conspiring to distribute heroin, 21 U.S.C. §§ 846, 841(a)(1), and one count of possessing heroin with intent to distribute, id. § 841(a)(1). The parties agreed that Alen would be sentenced to a term of imprisonment calculated at 67 percent of the low end of either the applicable guidelines range or the statutory minimum sentence, whichever is greater. See Fed.R.CrimP. 11(c)(1)(C). The district court accepted the plea agreement and sentenced Alen to a total of 60 months’ imprisonment — -four months less than the agreed-upon calculation. Alen appealed. His appointed counsel now seek to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they have concluded that the appeal is frivolous. We invited Allen to comment on counsel’s submission, see Cir. R. 51(b), but he did not respond. Our review, though, is limited to the potential issues identified in counsel’s brief, United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), provided the brief appears to be thorough and professional; and it does.
We lack jurisdiction under 18 U.S.C. § 3742(c)(1) to review Alen’s sentence. When a defendant agrees to a specific Rule 11(c)(1)(C) sentence, Congress has limited our jurisdiction to review the sentence to four grounds: that his guilty plea was involuntary, that the sentence imposed is greater than what he bargained for, that the guidelines range was improperly calculated, or that his sentence was imposed in violation of the law. See 18 U.S.C. § 3742(a)(1), (c)(1); United States v. Gibson, 490 F.3d 604, 607 (7th Cir.2007); United States v. Cieslowski, 410 F.3d 353, 363-64 (7th Cir.2005); United States v. Barnes, 83 F.3d 934, 941 (7th Cir.1996). None is present. Counsel informs us that Alen does not want his guilty pleas set aside, and we know that his 60-month sentence, which was based on a proper calculation of the guidelines range, is four months less than what he bargained for, and does not exceed the statutory maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B).
*669Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
David Carter ordered the killing of a prison warden. A state court in Illinois convicted him of first-degree murder in 1991 and sentenced him to life in prison. In this appeal from the dismissal of his petition for a writ of habeas corpus, see 28 U.S.C. § 2254, Carter argues that the district court erred in concluding that the petition is untimely. We affirm the judgment.
Carter initially filed a § 2254 petition in 1997, but he subsequently unearthed an additional claim. That claim had not been presented to the Illinois courts, so Carter filed a state postconviction petition in 1998 and requested a stay in the federal proceedings while the Illinois courts considered his new claim. The district court granted that request in 1999. Later that year, however, the court granted the state’s motion to dismiss Carter’s petition without prejudice for failure to exhaust. The order of dismissal provided that Carter could refile after exhausting his claims in state court, without setting a deadline for refiling. Carter finally exhausted his state remedies on March 29, 2006, when *670the Supreme Court of Illinois declined to review the dismissal of Carter’s postcon-viction petition. Carter, though, waited until March 2007 to return to federal court. The district court concluded that Carter had not been diligent in refiling his petition and thus it is time-barred.
Although Carter devotes the majority of his appellate briefs to his substantive claims, the district court could not consider those claims unless his petition is in fact timely. Carter argues that the absence of a refiling deadline in the 1999 order of dismissal meant that he had until March 29, 2007 — one year after he exhausted his state postconviction remedies — to refile in federal court. There is no support for Carter’s position. On the contrary, Carter needed to return to federal court within a reasonable time after exhausting his state-court remedies. We agree with the district court that waiting nearly a year to refile was not reasonable, and that Carter’s lack of diligence caused his petition to be untimely. See Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).
We have considered Carter’s alternative arguments for excusing the untimeliness of his petition and conclude that they have no merit.
Affirmed.
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ORDER
Richard Hoeft, a former Wisconsin inmate, brought suit under 42 U.S.C. § 1983 claiming that Robert Harrop, a sergeant at the Flambeau Correctional Center, was deliberately indifferent to a serious medical need in violation of the Eighth Amendment. The district court granted summary judgment for Harrop. We affirm that decision.
We recite the facts in the light most favorable to Hoeft. While imprisoned at Flambeau in June 2008, Hoeft complained to Dr. Fern Springs, a prison physician, that he was experiencing pain in his hands and forearms that was causing him difficulty performing his job as a gardener. After observing symptoms consistent with carpal tunnel syndrome, Dr. Springs gave Hoeft a steroid injection and placed him on a “no work” restriction for two days. He then was restricted to light duty, which *682allowed him to work at his own pace and avoid lifting items weighing more than 20 pounds. Dr. Springs later referred Hoeft to a clinic for further evaluation, but the results are not disclosed in the record.
Hoeft was still restricted to light duty in August 2008 when Harrop ordered him to help other inmates unload a delivery truck. Hoeft informed Harrop about his restriction, and after verifying that restriction, Harrop told Hoeft he could still unload the truck, as some of the items weighed under 20 pounds. But Hoeft asserts that Harrop made him unload any item on the truck, including those weighing more than 20 pounds, and told him to hurry. Harrop counters that he told Hoeft to work only within his restriction and at his own pace. Unloading the truck caused Hoeft to experience pain in his hands and forearms, but he did not complain to Harrop or seek medical attention. In the following month Hoeft did seek medical treatment for two other injuries, but neither time did he mention problems with his hands or forearms. Then in November 2008, shortly before his release from prison, Hoeft commenced this § 1983 suit alleging that Har-rop forced him to unload the truck despite his light-duty restriction.
The district court concluded that a reasonable jury could find that Harrop knowingly disregarded Hoeft’s light-duty restriction, but granted Harrop’s motion for summary judgment because Hoeft introduced no evidence that unloading the truck caused him compensable harm. The court explained that claims of deliberate indifference require a showing of extreme deprivation, not mere discomfort, and yet Hoeft had not submitted any evidence about the severity or duration of his subsequent pain. The court also evaluated but rejected Hoeft’s contention that unloading the truck “could” have worsened his condition for the future. The court reasoned that Hoeft lacked evidence from an expert to support his belief that ill effects from unloading the truck could become manifest later, and that, regardless, the Eighth Amendment does not protect inmates against exposure to a risk of harm.
In this court Hoeft seizes on the district court’s misstatement that the Eighth Amendment does not forbid indifference to a risk of future harm. See Helling v. McKinney, 509 U.S. 25, 33-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). But the court’s error cannot benefit Hoeft. When the medical issue concerns an inmate’s future health and not a present need, the inmate must establish that the risk he complains about is one that society deems “to be so grave that it violates contemporary standards of decency to expose anyone unwillingly.” Id. at 36, 113 S.Ct. 2475; Board v. Farnham, 394 F.3d 469, 479 (7th Cir.2005). Even if an increased risk of carpal tunnel syndrome satisfied that standard, Hoeft still needed evidence that significant complications resulted or are reasonably certain to result from following Harrop’s orders. See Henderson v. Sheahan, 196 F.3d 839, 852 (7th Cir.1999).
As Hoeft failed to submit any evidence that unloading the truck caused further injury, the district court properly granted summary judgment. See Henderson, 196 F.3d at 852. Hoeft presented no medical testimony about the effect on his condition of lifting items over 20 pounds nor any evidence that his condition had in fact worsened from the unloading, outside of an assertion that his hands “were a lot more painful than before.” The court properly found that this vague statement — coupled with Hoeft’s failure to mention any pain during subsequent medical appointments— was not enough for a jury to reasonably find for Hoeft. Without medical knowledge, Hoeft was unqualified to opine on the likelihood of future aggravation of his possible carpal tunnel syndrome. See *683Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir.2001). Expert testimony is required when the causal link between an alleged deprivation and injury is not within the common experience or observation of the average juror, see Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir.2009); United States v. Christian, 342 F.3d 744, 750 (7th Cir.2003), and the effect of external stres-sors on carpal tunnel syndrome is not a matter of common experience, see, e.g., Doty v. Illinois Cent. R.R. Co., 162 F.3d 460, 462-63 (7th Cir.1998) (affirming summary judgment where FELA plaintiff presented insufficient evidence to link his workplace to his carpal tunnel syndrome). Even if we assume that Hoeft had carpal tunnel syndrome in the first place, the average juror would not know whether lifting heavy boxes would worsen the condition or simply cause temporary discomfort. Dr. Springs’ affidavit does not discuss the effects of heavy lifting on carpal tunnel syndrome, and Hoeft did not submit an affidavit from any other medical source. Accordingly, any speculation by Hoeft about a potential injury was insufficient to withstand summary judgment. See Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir.2008).
AFFIRMED.
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PER CURIAM.
Fontaine Demmond Sherman appeals the district court’s1 denial of his Federal Rule of Criminal Procedure 33 motions for a new trial based on newly discovered evidence. We affirm for the reasons stated by the district court. See 8th Cir. R. 47B.
. The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.
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PER CURIAM.
Lisa Barnes-McNeely appeals the district court’s3 dismissal of her civil action, and has filed motions to strike appellees’ briefs and for a default judgment. Upon careful de novo review, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.), cert, denied, — U.S.—, 129 S.Ct. 222, 172 L.Ed.2d 142 (2008), we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. In addition, Barnes’s pending motions are denied.
. The Honorable Brian S. Miller, United States District Judge for the Eastern District of Arkansas.
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MEMORANDUM *
Galina Edvardouna Tupikovskaya (“Tu-pikovskaya”), a native and citizen of Uzbekistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the BIA.
The IJ denied petitioner’s applications for relief because he found Tupikovskaya not credible. The BIA affirmed the IJ’s decision without opinion under 8 C.F.R. § 1003.1(e)(4). Accordingly, we review the IJ’s decision. See Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004). We review credibility determinations for substantial evidence. See Soto-Olarte v. Holder, 555 F.3d 1089,1091 (9th Cir.2009).
I. Credibility
We recite the facts only as needed to explain our decision. The IJ based his adverse credibility finding on his misstatements of the record, speculation, failure to provide an opportunity to explain discrepancies or to consider those explanations, an unsubstantiated demeanor finding, and an erroneous requirement of corroborative evidence. We conclude that substantial *744evidence does not support the IJ’s adverse credibility finding;
a. The IJ misstated the record
In several instances, the IJ misstated the record, making factual errors. First, the IJ erroneously concluded that Tupikovskaya did not know that BIRLIK’s activities were restricted. Tupikovskaya repeatedly demonstrated that she knew that BIRLIK was an illegal organization through her testimony, asylum application, and asylum declaration.
Second, the IJ erroneously found that Tupikovskaya failed to mention on direct examination that her activities for BIRLIK’s women’s section were secret. Tupikovskaya emphasized that her participation in the inspections of health conditions for working women was “illegal.” Tupikovskaya maintained throughout her testimony, including on direct examination and in her asylum declaration, that she conducted research under the auspices of a non-profit organization named “Counterpart Consortium.” When conducting her research, Tupikov-skaya provided a document with a seal from Counterpart Consortium, although she was really working for BIRLIK. Although Tupikovskaya was working for BIRLIK, she had to do so under the pretense of working for Counterpart Consortium, the implication being that Tupikovskaya’s work was secret.
Third, the IJ asked Tupikovskaya what steps she had taken to help her husband. The record reveals that in her first response to the IJ’s question Tupikovskaya explained that she went to the Israeli embassy to seek asylum for herself and for her husband. The IJ misstated the record, then, when he found that Tupikovska-ya had initially answered his question with regard to only herself by saying that she sought to immigrate to Israel.
The IJ’s adverse credibility finding cannot stand based on these three misstatements of record.
b. The IJ engaged in speculation and conjecture
Under Shah v. INS, “[speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence.” 220 F.3d 1062, 1071 (9th Cir.2000). In this case, the IJ engaged in speculation and conjecture on at least two occasions.
First, the IJ engaged in speculation and conjecture when he found Tupikovskaya’s membership in BIRLIK suspect because she claimed that BIRLIK sent her to work in Moscow. Nothing in the record supports the IJ’s belief that BIRLIK, as an underground organization, would not be able to send its members abroad. In fact, the record supports the proposition that BIRLIK members were active outside Uzbekistan during the 1990s. The 2002 U.S. State Department Human Rights Country Report for Uzbekistan states that an exit visa was not required for Uzbeki nationals to travel from Uzbekistan to most countries of the former Soviet Union.
Second, the IJ engaged in speculation and conjecture when he found that Tupi-kovskaya and her son’s “close relationship” meant that Tupikovskaya would have informed her son of her BIRLIK activities. The IJ erred in speculating as to what a mother may or may not share with her son, particularly when information-sharing could be dangerous. See, e.g., Kumar v. Gonzales, 444 F.3d 1043, 1052 (9th Cir. 2006) (“IJ’s adverse credibility determination, insofar as it was based upon his opinion regarding what brothers from India who had grown up and fled India together might or might not do, was purely conjecture.”).
*745As such, the IJ’s findings, based on speculation and conjecture, do not provide substantial evidence to support the IJ’s adverse credibility finding.
c. The IJ failed to provide Tupikov-skaya with a reasonable opportunity to address inconsistencies
A petitioner must be provided with a “reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). In this case, the IJ failed, on at least two occasions, to provide Tupikovskaya with a reasonable opportunity to explain any perceived inconsistencies.
First, the IJ based his adverse credibility finding in part on Tupikovskaya’s failure to seek asylum from the U.S. Embassy in Moscow, yet the IJ did not give Tupikovskaya an opportunity to explain her failure to do so.
Second, the IJ erred in basing his adverse credibility finding in part on his perceived discrepancy between the description Tupikovskaya gave in her asylum application of the clothing she wore to her U.S. embassy interview in Tashkent, Uzbekistan, and the description of that clothing that Tupikovskaya gave at her hearing. The only inconsistency between Tupikov-skaya’s two descriptions of her attire was that Tupikovskaya’s asylum declaration listed that she wore dark glasses, while she did not mention wearing glasses in court.1 The IJ did not, however, question Tupikovskaya in court about whether she was wearing dark glasses or anything else at her U.S. Embassy interview in Tashkent. Thus, the IJ erred in basing his adverse credibility finding on this perceived discrepancy because Tupikovskaya had no opportunity to explain any potential inconsistency.2
d. The IJ failed to consider and address Tupikovskaya’s explanations for several discrepancies
The IJ must consider and address a petitioner’s explanation for a discrepancy. See, e.g., Soto-Olarte, 555 F.3d at 1091 (“[IJ’s] lack of consideration given to [petitioner’s] proffered explanation was error and prevented] the underlying inconsistency from serving as substantial evidence.”). Here, the IJ failed to address Tupikovskaya’s plausible explanations for discrepancies in her case on five occasions and erroneously rejected her explanation on one occasion.
First, the IJ made his adverse credibility finding in part on Tupikovskaya’s lack of knowledge regarding the specific date that her political organization, BIRLIK, was banned. Tupikovskaya explained that all opposition organizations in Uzbekistan were banned in 1993, and that she was unsure of BIRLIK’s exact ban date because she joined after BIRLIK was already underground. None of the country conditions materials, including the 2002 Country Report, found in the record give a definitive date for when BIRLIK was banned. The IJ’s expectation that Tupikovskaya would know the specific date BIRLIK was banned is likely unreasonable and he erred in failing to address Tupikovskaya’s explanation for her lack of knowledge of BIRLIK’s specific ban date.
*746Second, the IJ based his adverse credibility finding in part on Tupikovskaya’s failure to submit the published report containing the data she collected on BIRLIK’s behalf. Tupikovskaya explained that she did not write or publish the report, but only compiled the research and emphasized that she did not receive a copy of, or even know the name or publication date of, the report. Tupikovskaya explained that she learned her name was associated with the report because the Uzbek security service, when in the process of arresting, detaining, and beating her, told her that they knew her name because she stated her name to enter the factories where she gathered data for the report. The IJ erred in failing to address Tupikovskaya’s explanation for her failure to submit the report as evidence.
Third, the IJ based his adverse credibility finding on Tupikovskaya’s failure to make additional efforts to help her incarcerated husband. Tupikovskaya explained that she feared for her own life and was told by members of BIRLIK to go into hiding, not to call anybody, and not to leave the house. The record supports this explanation. Further, Tupikovskaya explained that no communication was allowed with political prisoners, so she relied on reports from BIRLIK members regarding her husband’s location. The IJ erred in failing to address Tupikovskaya’s explanation for her failure to make additional efforts to help her husband.
Fourth, the IJ based his adverse credibility finding in part on the fact that Tupi-kovskaya’s son, Yevgenii, did not know the date that his stepfather, Ilia, had joined BIRLIK. Ilia had joined BIRLIK before he married Yevgenii’s mother. Yevgenii explained that he was not close to Ilia and did not talk to him about BIRLIK. Further, Yevgenii and Ilia shared a home for less than a year, approximately six months. The IJ did not address these facts, which adequately explained why Yevgenii did not know when Ilia joined BIRLIK.
Fifth, the IJ erred in basing his adverse credibility finding on his finding that Yevgenii attributed Tupikovskaya’s 1998 arrest to Tupikovskaya or Ilia having made a speech on the radio in January 2000. Yevgenii began his testimony by explaining that he only had a “little bit” of knowledge about his mother’s activities. Yevgenii had no firsthand knowledge of either of his mother’s arrests because he had moved to the U.S. in August 1998, before either of Tupikovskaya’s arrests occurred. He admitted that he did not know the date of his mother’s arrest and that he thought her arrest was “probably” because of her activities in Moscow. Further, the government’s questioning of Yevgenii regarding Tupikovskaya’s arrests was confusing. The government attorney asked Yevgenii if he knew why his mother had been arrested, without specifying to which arrest he referred-the arrest in Uzbekistan in 1998 or the arrest in Moscow in 2000. Thus the IJ erred in finding that Yevgenii’s testimony undermined Tupikov-skaya’s claim and in failing to address Yevgenii’s explanation for his confusion.
Sixth, and finally, the IJ based his adverse credibility finding in part on the inconsistency regarding Tupikovskaya’s employment history. In the section for the name and address of the employer, Tupikovskaya’s asylum application listed her occupation between 1990 and 1999 as an engineer for a company attached to the Uzbek Ministry of Agriculture. When the ÍJ questioned Tupikovskaya about this job, she immediately answered that she was “considered to be on the list there.” Tupi-kovskaya testified that according to her documents, she was employed, but in reality she was not employed. Tupikovskaya explained that she did not actually go to *747work, but that she was kept on the payroll so that the officials at the company could keep her paycheck. Rather than working, Tupikovskaya stated that she stayed at home caring for her son and worked on BIRLIK assignments, which she also referred to as the “opposition organization,” after she joined BIRLIK in May 1997.
The IJ did not believe Tupikovskaya’s explanation that she was merely “on the books” and stated that Tupikovskaya sought to downplay her role as an engineer affiliated with the government because the job would undermine her claim of persecution for her opposition activities. Even if Tupikovskaya had been employed by a government affiliated company, the IJ’s conclusion that she could not also be a member of BIRLIK is speculative and unsupported by any record evidence. The IJ ignored testimony from Tupikovskaya’s son who explained that Tupikovskaya worked when she “was younger,” but was then a housewife doing “basic stuff’ during the 1990s. When the IJ asked Tupikov-skaya what she was doing during the nine year period at issue, Tupikovskaya replied that she “[w]as staying at home; was busy with assignments from BIRLIK.” This statement is consistent with Tupikovska-ya’s previous testimony that she joined BIRLIK in May 1997. From 1990 to May 1997, Tupikovskaya was “staying at home,” which she later specified meant that she was caring for her son; after May 1997, she worked on BIRLIK assignments. The IJ also ignored Tupikovskaya’s testimony that she and her husband were both laid off after the fall of the Soviet Union. Therefore, the IJ erred in not accepting Tupikovskaya’s plausible explanation for why she listed her employer on her asylum application.
e. The IJ did not specifically and cogently explain his finding on Tupi-kovskaya’s demeanor
Special deference is accorded to credibility determinations based on an applicant’s demeanor. Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999). An IJ’s demeanor-based negative credibility finding must specifically and cogently refer to the non-credible aspects of the applicant’s demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003).
In this case, the IJ observed that Tupikovskaya “displayed virtually no emotion” when testifying about her husband’s sentence and that she “seemed almost indifferent” to his fate. The IJ failed to specifically explain which aspects of Tupikovskaya’s demeanor led him to draw these conclusions. The IJ did not specifically and cogently refer to the non-credible aspects of Tupikovskaya’s demeanor, as required under Amlampalam, 353 F.3d at 686.
f. The IJ erred in requiring corroborative evidence
Where an IJ’s adverse credibility finding is unsupported by substantial evidence, no corroborative evidence is required. See Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir.2000) (“the BIA may not require independent corroborating evidence from an asylum applicant who testifies credibly....”).3 As discussed above, substantial evidence does not support the IJ’s adverse credibility finding, so Tupikovskaya should be deemed credible. Because corroborative evidence is not required where a petitioner has testified credibly, the IJ erred in finding Tupikovskaya not credible because she failed to *748submit the published BIRLIK report on women’s health.
IV. Judicial Bias
In her opening brief Tupikovskaya claimed that the IJ was biased and that his adverse credibility finding should be overturned. The government claimed that Tu-pikovskaya failed to exhaust her administrative remedies with respect to the bias claim because she did not raise it in front of the BIA. At oral argument Tupikovska-ya all but abandoned her judicial bias claim. We need not address this issue because we vacate the IJ’s adverse credibility finding and remand Tupikovskaya’s case to the BIA.
V. Conclusion
Because the IJ’s adverse credibility finding was not supported by substantial evidence, we GRANT the petition and REMAND to the BIA for further proceedings to determine whether, accepting Tupikov-skaya’s testimony as credible, she is eligible for relief. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
PETITION GRANTED AND REMANDED
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The difference in Tupikovskaya's description between a "black kerchief' and a "dark shawl” is possibly a minor inconsistency and possibly no inconsistency at all due to a discrepancy in translation. Therefore it cannot support an adverse credibility finding. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003).
. Also, the inconsistency likely does not go to the heart of Tupikovskaya's asylum claim. See Singh v. Ashcroft, 301 F.3d 1109, 1111-12 (9th Cir.2002).
. Tupikovskaya filed her application for relief on November 26, 2001, prior to May 11, 2005, the effective date of the REAL ID Act. See Sinha v. Holder, 564 F.3d 1015, 1021 n. 3 (9th Cir.2009) (applying pre-REAL ID Act standards because petitioner’s asylum application was filed before May 11, 2005).
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GRABER, Circuit Judge,
dissenting:
I respectfully dissent. Substantial evidence supported the immigration judge’s (“IJ”) adverse credibility finding. At a minimum, three points on which the IJ relied support that finding.
First, there were discrepancies between Petitioner’s testimony and that of her son. Petitioner’s son testified that he was “close” to Petitioner and that they “sharefd] details about [their] lives.” Petitioner’s son testified that he did not learn of Petitioner’s asserted membership in BIRLIK until 1999, despite Petitioner’s claim to have joined BIRLIK in 1997. In addition, Petitioner testified that she was arrested once in Uzbekistan because of her research and arrested a second time in Moscow because of her speech at a political rally there. Petitioner’s son testified that Petitioner “told [him] ... what happened” regarding her arrest in Uzbekistan with the exception of “dates.” But Petitioner’s son then testified that Petitioner had been arrested only once, in Uzbekistan, probably because of her speech in Moscow. The IJ’s questions were not confusing and do not account for these discrepancies.
Second, the IJ’s statement that Petitioner showed “virtually no emotion when testifying about” her husband’s alleged imprisonment for his BIRLIK activities constituted a specific and cogent reference to an aspect of Petitioner’s demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). Petitioner’s explanation for her lack of emotion' — that she was not emotionally committed to her husband — was inconsistent with the claim on her asylum application that Petitioner “lived in constant fear for the life and safety of [her] husband” after his arrest.
Third, the IJ relied on Petitioner’s failure to provide a copy of the research results, as well as other documents, to corroborate her story. Because the IJ had valid reasons to doubt Petitioner’s credibility, the IJ could properly consider Petitioner’s failure to produce corroborating evidence. Unuakhaulu v. Gonzales, 416 F.3d 931, 938 (9th Cir.2005). Petitioner testified that she had been told that the research results were published in England. Thus, the evidence does not compel a reasonable trier of fact to conclude that the research results were unavailable. 8 U.S.C. § 1252(b)(4); see also REAL ID Act of 2005, Pub.L. No. 109-13, div. B, § 101(h)(3), 119 Stat. 231, 305-06 (providing that the standard of review for availability of corroborating evidence applies to final removal orders regardless of the date on which they were issued).
*749The inconsistencies identified by the IJ go to the heart of Petitioner’s claim that she had been persecuted or had a well-founded fear of future persecution in Uzbekistan for her association with BIRLIK. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004). Accordingly, I would deny the petition.
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*858MEMORANDUM **
Vladimir Romachkine, a native of Kazakhstan and citizen of Russia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we review de novo questions of law, Rivera v. Mukasey, 508 F.3d 1271, 1274-75 (9th Cir.2007). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based upon Romachkine’s submission of both a fraudulent birth registration confirmation document and a fraudulent Russian Federation resident card. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004). In the absence of credible testimony, Ro-machkine failed to establish he is eligible for asylum. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Romachkine’s contention that the IJ deprived him of a reasonable opportunity to provide corroborating evidence or rebut the government’s investigative reports fails because the IJ granted several continuances after the authenticity of the documentary evidence was placed at issue. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON PETITION FOR WRIT OF MANDAMUS
LOURIE, Circuit Judge.
ORDER
Bridgeport Fittings, Inc. petitions for a writ of mandamus to direct the United States District Court for the Middle District of Pennsylvania to grant summary judgment in its favor. Bridgeport also moves for this court to stay the district court’s trial, which is scheduled to begin on September 14, 2009.
Upon consideration of the papers submitted, the court determines that Bridgeport has not shown clear entitlement to the relief sought.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for a writ of mandamus is denied.
(2) The motion to stay the district court’s trial is denied.
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ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Petitioner, and the petition for rehearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
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*122ON MOTION
ORDER
Petitioner having filed the required Statement Concerning Discrimination, it is ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 60 days from the date of this order.
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ON MOTION
ORDER
Petitioner having paid the required filing fee, it is ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 60 days from the date of this order.
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*123ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for *124failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
*126ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ON PETITION FOR WRIT OF MANDAMUS
LOURIE, Circuit Judge.
ORDER
Bridgeport Fittings, Inc. petitions for a writ of mandamus to direct the United States District Court for the Middle District of Pennsylvania to grant summary judgment in its favor. Bridgeport also moves for this court to stay the district court’s trial, which is scheduled to begin on September 14, 2009.
Upon consideration of the papers submitted, the court determines that Bridgeport has not shown clear entitlement to the relief sought.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for a writ of mandamus is denied.
(2) The motion to stay the district court’s trial is denied.
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ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Petitioner, and the petition for rehearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
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*122ON MOTION
ORDER
Petitioner having filed the required Statement Concerning Discrimination, it is ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 60 days from the date of this order.
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ON MOTION
ORDER
Petitioner having paid the required filing fee, it is ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 60 days from the date of this order.
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*123ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for *124failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
*126ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ORDER
PER CURIAM.
The judgment in this case is affirmed. With respect to the inequitable conduct claim, we uphold the district court’s ruling of no inequitable conduct based on the court’s finding that the inventors did not act with the intent to deceive the Patent and Trademark Office; we do not address the question whether the information that was not disclosed was material. With respect to the public use issue, we uphold the district court’s conclusion that the appellant Phenix failed to prove by clear and convincing evidence that the invention was in public use more than one year before the filing date for the patent; we do not address the question whether any alleged use of the invention during the period pri- or to the filing date of the patent fell within the experimental use exception to the public use doctrine.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
*159Before MAYER, SCHALL, and GAJARSA, Circuit Judges.
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ORDER
Upon consideration of appellants’ motion for voluntary dismissal, and the response thereto, it is
ORDERED that the motion be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate.
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*166
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplement thereto filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed October 26, 2009, be affirmed. The district court properly dismissed appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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ORDER
Upon consideration of appellant’s motion to withdraw the motion to withdraw counsel, and motion to withdraw appeal, it is
ORDERED that the motions be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate.
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SUMMARY ORDER
Plaintiff-appellant Moshe Cinque Canty argues that the jury’s verdict was unsupported by sufficient evidence. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Canty did not preserve his argument by filing a motion pursuant to Rule 50 of the Federal Rules of Civil Procedure. Accordingly, we may consider his challenge only: (1) if the district court indicated that a Rule 50 motion need not be filed, or (2) “to prevent a manifest injustice in cases where a jury’s verdict is wholly without legal support.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir.2004) (internal quotation marks and alteration omitted). Here, the district court did not relieve Canty of his obligation under Rule 50, and the officers’ testimony at trial constitutes sufficient evidence to sustain the jury’s verdict.
Finding no merit in Canty’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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OPINION
PER CURIAM.
Donovan A. Moncrieffe appeals pro se from the order of the District Court summarily denying a petition for a writ of habeas corpus that he filed under 28 U.S.C. § 2241. We will vacate and remand. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Moncrieffe is serving a sentence of 33 months of imprisonment in a federal facility in Pennsylvania. He alleges that he has a projected release date of September 12, 2010. Under the Second Chance Act of 2007, the Bureau of Prisons (“BOP”) “shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months) under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” 18 U.S.C. § 3624(c)(1).
This provision makes Moncrieffe eligible to spend some portion of the final twelve months of his sentence in a community correctional facility (“CCC”), commonly known as a halfway house. See id. In calculating the appropriate length and place of pre-release custody, the BOP is required to determine placement “on an individual basis” and “in a manner consistent with [18 U.S.C. § 3621(b) ],” which sets forth five factors that the BOP must consider in determining a prisoner’s place of imprisonment. 18 U.S.C. § 3624(c)(6)(A) & (B); 28 C.F.R. § 570.22.
Moncrieffe filed his § 2241 habeas petition in October 2009.1 He alleges that his *288Unit Team and Warden approved him to serve only the last 90 to 120 days of his sentence in a CCC, but that, for a variety of reasons, he requires a longer period in order to successfully reintegrate into the community before his release. In addition to arguing that the BOP incorrectly decided the duration of his pre-release custody, he asserts that the BOP imposed an “ordinary and customary” 90 to 120 day period without affording him an individualized determination or considering the factors set forth in 18 U.S.C. § 3621(b). (Mot. for Relief ¶¶ 4,10.)
A Magistrate Judge issued a Report and Recommendation recommending that the District Court summarily deny Mon-crieffe’s petition on the merits without requiring a response. In particular, the Magistrate Judge concluded that Mon-crieffe “offers nothing that would indicate the [BOP] abused its discretion in its decision,” and instead challenges merely the results of its decision on the basis of his “contrary evaluation of factors.” (R & R at 2.) Monerieffe timely objected on the grounds, inter alia, that he had indeed challenged the BOP’s decision making process. (Petr.’s Objections ¶¶ 3, 4(a), (d), (f)(g).) Nevertheless, by order entered November 5, 2009, the District Court adopted the Report and Recommendation and summarily denied Moncrieffe’s petition. Mon-erieffe appeals.2
II.
The District Court’s summary denial of Moncrieffe’s petition is inconsistent with our decision in Woodall. We held there that a federal prisoner’s challenge to the BOP’s decision regarding placement in a CCC is a challenge to the execution of a sentence cognizable under § 2241. See Woodall, 432 F.3d at 243-44. In that case, we invalidated a BOP regulation that restricted prisoners’ eligibility for placement in a CCC to the final ten percent of their sentences without regard to their individualized circumstances. See id. We did so because the regulation ran afoul of the Congressional requirement that the BOP consider the five factors set forth in § 3261(b) before making individual decisions regarding placement in a CCC. See id. at 245-46. As we explained, “[w]hile the BOP may exercise considerable discretion, it must do so using the factors that Congress has specifically enumerated.” Id. at 247.3
In this case, despite the District Court’s conclusion to the contrary, Monerieffe asserts that the BOP has failed to abide by the Congressional mandate we recognized in Woodall because it imposed an “ordinary and customary” period of 90 to 120 days of CCC placement without providing him with an individualized determination of the statutory factors. Thus, his petition states potential grounds for relief under *289§ 2241 and the District Court should not summarily have denied it. Instead, the. District Court should have required the respondents to file a response and conducted further proceedings. See, e.g.,' Fournier v. Zickefoose, 620 F.Supp.2d 313, 318 (D.Conn.2009) (considering response to similar claim).
We express no opinion on thé merits of' Moncrieffe’s claim, but we note the limited nature of his remedy if the District Court. ultimately determines that he is entitled to relief. Moncrieffe seeks an order directing the BOP to transfer him to a CCC, but that relief is not available. “That the BOP may assign a prisoner to a CCC does not mean that it must.” Woodall, 432 F.3d at 251. Instead, if Moncrieffe were to prevail, he would be entitled only to “an order requiring the BOP to consider — -in good faith — whether or not [he] should be transferred to a CCC” on an individualized basis in light of the statutory factors. Id.
One final issue requires discussion. Moncrieffe asserts that he became eligible for placement in a CCC in September 2009 and that he is scheduled for transfer to such placement beginning on May 12, 2010, at the earliest. Thus, because the CCC placement period he seeks “already would have started,” the District Court should proceed with expedition on remand. Id. (requiring the BOP to “immediately” reconsider CCC placement under this circumstance).
Accordingly, we will vacate and remand for further proceedings. Moncrieffe’s motion to expedite this appeal is denied as moot.
. Moncrieffe filed two documents: a motion for an emergency hearing on his claim, and a motion setting forth its substance. Mon-crieffe previously filed a virtually identical § 2241 petition, which the District Court dismissed because it revealed on its face that Moncrieffe had failed to exhaust his administrative remedies. Moncrieffe filed a notice of appeal (C.A. No. 09-2930), but later withdrew it and filed the § 2241 petition at issue here. The Magistrate Judge in this case concluded that Moncrieffe "apparently” has now exhausted his administrative remedies, but we express no opinion on that issue.
. Moncrieffe's challenge to the CCC determination lies under § 2241, see Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243-44 (3d Cir.2005), so he does not require a certificate of appealability in order to appeal, see Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and we review the District Court's ruling de novo. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007). Summary dismissal of a habeas petition is appropriate "[i]f it plainly appears from the petition ... that the petitioner is not entitled to relief[.]” Rule 4 of the Rules Gov-eraing Section 2254 Cases in the United States District Courts, 28 U.S.C. foil. § 2254 (applicable in § 2241 cases by virtue of Rule 1(b)).
. After Woodall, § 3624(c) was amended to require expressly that the BOP make determinations of pre-release custody of the kind that Monerieffe seeks in accordance with § 3621(b) and "on an individualized basis.” See Demis v. Sniezek, 558 F.3d 508, 513-14 (6th Cir.2009) (noting post-amendment promulgation of BOP regulations).
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OPINION
PER CURIAM.
Richard Paul Zuckerman appeals from an order of the United States District Court for the District of New Jersey, which denied his petition for a writ of error coram nobis or audita querela. Because the appeal raises no substantial question, we will affirm the District Court’s order.
As we write primarily for the parties, we recount only those facts necessary to an understanding of this decision. Zucker-man was indicted in 1989, charged with mailing a threatening communication to a federal judge (sitting in New Jersey), in violation of 18 U.S.C. §§ 876 and 2. That indictment was eventually dismissed without prejudice to the United States. About one year later, the Federal Bureau of Investigation and the United States Attorney’s Office learned that Zuckerman was attempting to buy guns in Florida and return with them to New Jersey. The prosecutor returned to the grand jury and obtained a second indictment charging Zuckerman with the same offense charged by the first indictment. Zuckerman proceeded to trial and was found guilty. As the Court found that Zuckerman was in need of psychiatric care, Zuckerman was originally given a provisional sentence of hospitalization in a suitable facility pursuant to 18 U.S.C. § 4244.1 Zuckerman was unsuccessful on direct appeal.
Zuckerman filed a motion for relief pursuant to 28 U.S.C. § 2255 in 1992, raising claims concerning ineffective assistance of counsel. The motion was denied, and this Court affirmed. Zuckerman filed a second § 2255 motion in 1994, raising additional claims concerning ineffective assistance of counsel. The District Court denied relief and this Court affirmed.
Over a decade later, Zuckerman filed the petition at issue here. Zuckerman sought to raise the following issues: (A) in light of District of Columbia v. Heller, — U.S. -, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), his conviction violated the Due Process clause of the Fifth Amendment because the decision to prosecute the second indictment was based on his attempts to purchase firearms; (B) he should have been granted a change of venue; (C) he was entitled to an appellate panel from another circuit on direct appeal; (D) the appointed advisory defense attorney provided ineffective assistance of counsel; (E) the Third Circuit engaged in unlawful retaliation by entering a judgment order on direct appeal rather than hearing oral argument; (F) the trial court erred in failing to advise the jury that exaggeration is a defense to a mail threat charge; (G) the *293Speedy Trial Act was violated; (H) the court-appointed criminal defense attorney provided ineffective assistance in obtaining psychiatric evaluation; (I) the trial judge undermined his right to a jury trial by telling the jury that it was required to follow the trial court’s instructions; and (J) the court should liberally relitigate issues that had earlier been asserted and denied.
The District Court entered an order and opinion on October 21, 2008, denying with prejudice Zuckerman’s request to reliti-gate issues, and his already litigated claims (issues “G,” “H,” and “J”). The Court also denied claims “E” and “I” because they were without merit. The Court required Respondents to answer the remaining claims.
After considering the answer and Zuck-erman’s reply and supplemental replies, the District Court denied the remaining claims. Zuckerman appealed, and was informed that the Court would consider summary action. Zuckerman filed a brief in response.
Our review of the District Court’s legal conclusions is plenary, and we apply a clearly erroneous standard to its factual findings. Okereke v. United States, 307 F.3d 117, 119-20 (3d Cir.2002). We may affirm on grounds different than those used by the district court in reaching its decision. Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir.2001).
The writ of error coram nobis and the writ of audita querela are available in criminal cases to the extent they fill in gaps in the current system of post-conviction relief. Massey v. United States, 581 F.3d 172 (3d Cir.2009) (audita querela); United States v. Baptiste, 223 F.3d 188 (3d Cir.2000) (coram nobis). We recently reiterated that a motion filed pursuant to 28 U.S.C. § 2255 is the presumptive means of challenging a federal conviction, and in the rare instance where a § 2255 motion is “inadequate or ineffective,” a federal prisoner may resort to a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Massey, 581 F.3d at 174 n. 1. Here, however, because Zuckerman is no longer in custody, he could no longer file a § 2255 motion (even with this Court’s permission), nor could he file a § 2241 petition.2 We have noted, “[wjere no other avenue of judicial review available for a party who claims that s/he is factually or legally innocent as a result of a previously unavailable statutory interpretation, we would be faced with a thorny constitutional issue.” In re Dorsa-invil, 119 F.3d 245, 248 (3d Cir.1997).
Such is not the case here, however. Cf. United States v. Richter, 510 F.3d 103, 104 (2d Cir.2007) (finding writ of audita quere-la does not lie to raise claim under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Zuckerman cannot show that § 2255 is “inadequate or ineffective” to raise his claims lettered “B” through “J.” He pursued a direct appeal, and has had two post-conviction chances to raise challenges to his conviction and sentence. Massey, 581 F.3d at 174 (petitioner may not resort to audita querela simply because he cannot satisfy requirements of *294Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)); Baptiste, 223 F.3d at 189-90 (petitioner may not resort to coram nobis simply because he cannot satisfy requirements of AEDPA).
Zuckerman’s only claim that could not have been raised in an earlier motion or on direct appeal is his claim based on Heller, because Heller was not decided until 2008. We need not consider, however, whether Zuckerman could proceed by way of coram nobis or audita querela to pursue his Heller claim, because Zuckerman has not shown that such an extraordinary remedy is necessary; ie., that he was convicted for conduct that was not criminal, see Dorsainvil, 119 F.3d at 248; or that an error affects the very jurisdiction of the trial court, see United States v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989). Mailing a threatening communication is a crime, and Zuckerman makes no claim that the District Court lacked jurisdiction to try the case against him.3
For the foregoing reasons, we will af-fkm the District Court’s judgment.4
. After treatment, the Federal Correctional Institution at Butner decided that Zuckerman was no longer in need of treatment, and he was returned to the District Court for sentencing. On February 22, 1993, the District Court sentenced Zuckerman to time served, and placed him on supervised release for three years. Answer, Dist. Ct. dkt. # 6, at 5-6.
. Although Zuckerman is not "in custody," if we found that extraordinary relief pursuant to a writ of error coram nobis or a writ of audita querela were warranted, we assume Zucker-man could show continuing consequences from his conviction. See Torzala v. United States, 545 F.3d 517, 521 (7th Cir.2008) (holding that court had jurisdiction to consider appeal from unsuccessful § 2255 movant who had been released from custody because of his inability to possess firearms lawfully).
. Further, we agree with the District Court that Zuckerman's Due Process claim is without merit. Heller does not impugn the prosecutor’s motivation for seeking the second indictment against Zuckerman. See Heller, 128 S.Ct. at 2816-17 & n. 26; Dist. Ct. Op. at 5 (Jan. 28, 2009).
. Zuckerman's motion to expand the record is granted, as the documents he seeks this Court to review are part of the criminal record below.
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ORDER
PER CURIAM.
The judgment in this case is affirmed. With respect to the inequitable conduct claim, we uphold the district court’s ruling of no inequitable conduct based on the court’s finding that the inventors did not act with the intent to deceive the Patent and Trademark Office; we do not address the question whether the information that was not disclosed was material. With respect to the public use issue, we uphold the district court’s conclusion that the appellant Phenix failed to prove by clear and convincing evidence that the invention was in public use more than one year before the filing date for the patent; we do not address the question whether any alleged use of the invention during the period pri- or to the filing date of the patent fell within the experimental use exception to the public use doctrine.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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ORDER
Upon consideration of appellants’ motion for voluntary dismissal, and the response thereto, it is
ORDERED that the motion be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate.
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ORDER
Upon consideration of the stipulation for dismissal of this petition, it is
ORDERED that the Clerk note on the docket that this case is dismissed. No mandate will issue.
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*166
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplement thereto filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed October 26, 2009, be affirmed. The district court properly dismissed appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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ORDER
Upon consideration of appellant’s motion to withdraw the motion to withdraw counsel, and motion to withdraw appeal, it is
ORDERED that the motions be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate.
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SUMMARY ORDER
Plaintiff-appellant Moshe Cinque Canty argues that the jury’s verdict was unsupported by sufficient evidence. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Canty did not preserve his argument by filing a motion pursuant to Rule 50 of the Federal Rules of Civil Procedure. Accordingly, we may consider his challenge only: (1) if the district court indicated that a Rule 50 motion need not be filed, or (2) “to prevent a manifest injustice in cases where a jury’s verdict is wholly without legal support.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir.2004) (internal quotation marks and alteration omitted). Here, the district court did not relieve Canty of his obligation under Rule 50, and the officers’ testimony at trial constitutes sufficient evidence to sustain the jury’s verdict.
Finding no merit in Canty’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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OPINION
PER CURIAM.
Petitioner, Ingrid Tjan, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The government has moved for summary action. Because the appeal presents no substantial question, see Third Circuit LAR 27.4 and I.O.P. 10.6, we will grant the motion and deny Tjan’s petition.
I.
Tjan is a native and citizen of Indonesia. On June 1, 2006, she applied for asylum, withholding of removal, and relief under the Convention Against Torture claiming that she would be persecuted on account of her Chinese ethnicity and Buddhist religion if she were forced to return to Indonesia. Following a hearing, an Immigration Judge (“IJ”) denied her applications, but permitted her to voluntarily depart the United States. Tjan filed an administrative appeal.
On August 15, 2008, the BIA dismissed the appeal and ordered Tjan to leave the country within forty-three days of the date of that order. Tjan did not depart as ordered. Instead, on October 10, 2008, after the forty-three-day departure period had expired, she filed a motion to reopen her proceedings with the BIA so that she could pursue an application for adjustment of status based on her recent marriage to a United States citizen.
By order entered March 30, 2009, the BIA denied the motion on the ground that Tjan was ineligible to adjust her status because she had remained in the country beyond the voluntary departure period. See 8 U.S.C. § 1229c(d)(l)(B). Tjan then moved for reconsideration on the ground that her husband’s 1-130 petition had just been approved, but the BIA denied her request, reiterating that she was statutorily ineligible to adjust her status. See id. Tjan filed a timely petition for review of the BIA’s decision denying her motion for reconsideration.1 The government now moves for summary action.
II.
In its motion for summary action, the government argues that the BIA did not *286err in denying Tjan’s motion for reconsideration because Tjan’s failure to depart within the specified forty-three-day period renders her ineligible to adjust her status. See 8 U.S.C. § 1229c(d)(l)(B). We agree. In her motion for reconsideration, Tjan provided evidence that her husband’s I-130 petition had been approved on April 6, 2009. As the BIA explained, however, the fact that the visa petition had been approved did not affect its previous determination that she is statutorily ineligible to adjust her status under 8 U.S.C. § 1229c(d)(l)(B).
We have considered Tjan’s arguments in opposition to the government’s motion for summary action and conclude that they are without merit. First, Tjan argues that the BIA violated her due process rights, and its own decision in Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), by failing to consider the evidence she submitted in support of her motion for reconsideration' — ie., her husband’s approved 1-130 petition. Our review of the record, however, reveals that the BIA did indeed consider this evidence, only to determine that it did not provide a basis for reconsideration. Next, Tjan argues that the BIA failed to give proper weight to the “express public policy preferences” of Congress and the courts to keep families of United States citizens and immigrants united. While we do not disagree with this general policy statement, we believe that Congress has made its intent clear in 8 U.S.C. § 1229c(d)(l)(B) that an applicant like Tjan, who had been permitted to depart voluntarily but failed to do so within the specified period, is ineligible to adjust her status under 8 U.S.C. § 1229b. Finally, we have considered Tjan’s discussion of the Supreme Court’s decision in Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 2319, 171 L.Ed.2d 178 (2008), but conclude that her reliance on this case is misplaced, as Dada concerned a petitioner who — unlike Tjan — moved to reopen proceedings before the voluntary departure period had expired.2 See id.
For the foregoing reasons, we will grant the government’s motion and summarily deny the petition for review. See Third Cir. LAR 27.4; I.O.P. 10.6.
. We review the denial of a motion for reconsideration for an abuse of discretion. Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir.1986). Under this standard, we may revérse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002).
. Tjan also argues that her due process rights "were violated by the fact that the IJ and the Board, without any explanation, arbitrarily granted the Petitioner a 43 day period of voluntary departure following the conclusion of her hearing, rather than a 60 day voluntary departure period, which is the maximum period of time permitted by the statute.” (Opp. to Motion for Summary Disposition 10.) However, because Tjan did not petition for review of the BIA's order permitting her to voluntarily depart, we lack jurisdiction to review that order.
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OPINION
PER CURIAM.
Donovan A. Moncrieffe appeals pro se from the order of the District Court summarily denying a petition for a writ of habeas corpus that he filed under 28 U.S.C. § 2241. We will vacate and remand. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Moncrieffe is serving a sentence of 33 months of imprisonment in a federal facility in Pennsylvania. He alleges that he has a projected release date of September 12, 2010. Under the Second Chance Act of 2007, the Bureau of Prisons (“BOP”) “shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months) under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” 18 U.S.C. § 3624(c)(1).
This provision makes Moncrieffe eligible to spend some portion of the final twelve months of his sentence in a community correctional facility (“CCC”), commonly known as a halfway house. See id. In calculating the appropriate length and place of pre-release custody, the BOP is required to determine placement “on an individual basis” and “in a manner consistent with [18 U.S.C. § 3621(b) ],” which sets forth five factors that the BOP must consider in determining a prisoner’s place of imprisonment. 18 U.S.C. § 3624(c)(6)(A) & (B); 28 C.F.R. § 570.22.
Moncrieffe filed his § 2241 habeas petition in October 2009.1 He alleges that his *288Unit Team and Warden approved him to serve only the last 90 to 120 days of his sentence in a CCC, but that, for a variety of reasons, he requires a longer period in order to successfully reintegrate into the community before his release. In addition to arguing that the BOP incorrectly decided the duration of his pre-release custody, he asserts that the BOP imposed an “ordinary and customary” 90 to 120 day period without affording him an individualized determination or considering the factors set forth in 18 U.S.C. § 3621(b). (Mot. for Relief ¶¶ 4,10.)
A Magistrate Judge issued a Report and Recommendation recommending that the District Court summarily deny Mon-crieffe’s petition on the merits without requiring a response. In particular, the Magistrate Judge concluded that Mon-crieffe “offers nothing that would indicate the [BOP] abused its discretion in its decision,” and instead challenges merely the results of its decision on the basis of his “contrary evaluation of factors.” (R & R at 2.) Monerieffe timely objected on the grounds, inter alia, that he had indeed challenged the BOP’s decision making process. (Petr.’s Objections ¶¶ 3, 4(a), (d), (f)(g).) Nevertheless, by order entered November 5, 2009, the District Court adopted the Report and Recommendation and summarily denied Moncrieffe’s petition. Mon-erieffe appeals.2
II.
The District Court’s summary denial of Moncrieffe’s petition is inconsistent with our decision in Woodall. We held there that a federal prisoner’s challenge to the BOP’s decision regarding placement in a CCC is a challenge to the execution of a sentence cognizable under § 2241. See Woodall, 432 F.3d at 243-44. In that case, we invalidated a BOP regulation that restricted prisoners’ eligibility for placement in a CCC to the final ten percent of their sentences without regard to their individualized circumstances. See id. We did so because the regulation ran afoul of the Congressional requirement that the BOP consider the five factors set forth in § 3261(b) before making individual decisions regarding placement in a CCC. See id. at 245-46. As we explained, “[w]hile the BOP may exercise considerable discretion, it must do so using the factors that Congress has specifically enumerated.” Id. at 247.3
In this case, despite the District Court’s conclusion to the contrary, Monerieffe asserts that the BOP has failed to abide by the Congressional mandate we recognized in Woodall because it imposed an “ordinary and customary” period of 90 to 120 days of CCC placement without providing him with an individualized determination of the statutory factors. Thus, his petition states potential grounds for relief under *289§ 2241 and the District Court should not summarily have denied it. Instead, the. District Court should have required the respondents to file a response and conducted further proceedings. See, e.g.,' Fournier v. Zickefoose, 620 F.Supp.2d 313, 318 (D.Conn.2009) (considering response to similar claim).
We express no opinion on thé merits of' Moncrieffe’s claim, but we note the limited nature of his remedy if the District Court. ultimately determines that he is entitled to relief. Moncrieffe seeks an order directing the BOP to transfer him to a CCC, but that relief is not available. “That the BOP may assign a prisoner to a CCC does not mean that it must.” Woodall, 432 F.3d at 251. Instead, if Moncrieffe were to prevail, he would be entitled only to “an order requiring the BOP to consider — -in good faith — whether or not [he] should be transferred to a CCC” on an individualized basis in light of the statutory factors. Id.
One final issue requires discussion. Moncrieffe asserts that he became eligible for placement in a CCC in September 2009 and that he is scheduled for transfer to such placement beginning on May 12, 2010, at the earliest. Thus, because the CCC placement period he seeks “already would have started,” the District Court should proceed with expedition on remand. Id. (requiring the BOP to “immediately” reconsider CCC placement under this circumstance).
Accordingly, we will vacate and remand for further proceedings. Moncrieffe’s motion to expedite this appeal is denied as moot.
. Moncrieffe filed two documents: a motion for an emergency hearing on his claim, and a motion setting forth its substance. Mon-crieffe previously filed a virtually identical § 2241 petition, which the District Court dismissed because it revealed on its face that Moncrieffe had failed to exhaust his administrative remedies. Moncrieffe filed a notice of appeal (C.A. No. 09-2930), but later withdrew it and filed the § 2241 petition at issue here. The Magistrate Judge in this case concluded that Moncrieffe "apparently” has now exhausted his administrative remedies, but we express no opinion on that issue.
. Moncrieffe's challenge to the CCC determination lies under § 2241, see Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243-44 (3d Cir.2005), so he does not require a certificate of appealability in order to appeal, see Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and we review the District Court's ruling de novo. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007). Summary dismissal of a habeas petition is appropriate "[i]f it plainly appears from the petition ... that the petitioner is not entitled to relief[.]” Rule 4 of the Rules Gov-eraing Section 2254 Cases in the United States District Courts, 28 U.S.C. foil. § 2254 (applicable in § 2241 cases by virtue of Rule 1(b)).
. After Woodall, § 3624(c) was amended to require expressly that the BOP make determinations of pre-release custody of the kind that Monerieffe seeks in accordance with § 3621(b) and "on an individualized basis.” See Demis v. Sniezek, 558 F.3d 508, 513-14 (6th Cir.2009) (noting post-amendment promulgation of BOP regulations).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477878/
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*290OPINION
PER CURIAM.
Verlin Alexander appeals from the District Court’s order dismissing his civil rights action. We will summarily affirm.
I.
On June 11, 2009, Alexander filed a pro se civil rights action in the United States District Court for the District of Delaware against United States Marshal Orlando Fletcher and seventeen John Doe defendants, pursuant to 42 U.S.C. § 1983, claiming that the defendants violated his due process and equal protection rights in connection with his allegedly unlawful arrest, search and seizure, and extradition on October 27, 2006. On September 30, 2009, 2009 WL 3149753, pursuant to its screening authority under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l), the District Court dismissed the complaint as barred by the applicable limitation period for § 1983 claims. Alexander timely appealed.
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. Our review over a District Court’s sua sponte dismissal of a complaint for failure to state a claim is plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), we are required to “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We may take summary action if the appeal presents no substantial question. See 3d Cir. L.A.R. 24.7; I.O.P. 10.6.
III.
The District Court correctly dismissed Alexander’s claim under § 1915(e)(2)(B), as his claim lacked an arguable basis in law. Alexander’s § 1983 claims are governed by the personal injury statute of limitations in Pennsylvania, the state in which his cause of action accrued.1 See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir.2000). The statute of limitations for claims arising under § 1983 in Pennsylvania is two years. Id. Any claims filed outside this period are untimely.
A section 1983 cause of action accrues, and the applicable limitations period begins to run, when the plaintiff “knew or should have known of the injury upon which its action is based.” Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998). Alexander’s claims stem from his allegedly unlawful arrest, which took place on October 27, 2006. (Compl.6.) On that date, Alexander knew or should have known of the constitutional violations upon which his claims are based.2 Alexander did not file his com*291plaint until June 5, 2009, approximately seven months after the expiration of the two-year limitations period.3 We agree with the District Court’s conclusion that Alexander’s complaint was barred on its. face by the applicable statute of limitations.4 Accordingly, we -will summarily affirm.
. Alexander alleges that agents of the state of Delaware unlawfully arrested him in Pennsylvania. The District Court applied the Delaware statute of limitations to these claims; however, the result is the same as under Pennsylvania's statute of limitations, which is also two years for claims arising under § 1983. Compare 10 Del.Code Ann. § 8119, and 42 Pa.C.S.A. § 5524(7).
. To the extent, if any, that Alexander's claim can be characterized as one of false imprisonment, this claim is also time barred. The statute of limitations begins to run against an action for false imprisonment when the individual is released, or becomes held pursuant to legal process. See Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). We take judicial notice of the *291fact that Alexander was committed to the Department of Corrections in default of bail on October 27, 2006, and was arraigned on November 6, 2006. (See State of Delaware v. Verlin J. Alexander, Superior Court Criminal Docket). Alexander's false imprisonment claim thus accrued no later than November 6, 2008. See Wcdlace, 549 U.S. at 391, 127 S.Ct. 1091.
. The District Court found that the complaint was filed on the date it was signed, the earliest dale possible that it could have been delivered to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir.1998).
. Because Alexander was proceeding in forma pauperis, the District Court was entitled to reach the limitations question, which was obvious from the complaint and required no factual development. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006).
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OPINION
PER CURIAM.
Richard Paul Zuckerman appeals from an order of the United States District Court for the District of New Jersey, which denied his petition for a writ of error coram nobis or audita querela. Because the appeal raises no substantial question, we will affirm the District Court’s order.
As we write primarily for the parties, we recount only those facts necessary to an understanding of this decision. Zucker-man was indicted in 1989, charged with mailing a threatening communication to a federal judge (sitting in New Jersey), in violation of 18 U.S.C. §§ 876 and 2. That indictment was eventually dismissed without prejudice to the United States. About one year later, the Federal Bureau of Investigation and the United States Attorney’s Office learned that Zuckerman was attempting to buy guns in Florida and return with them to New Jersey. The prosecutor returned to the grand jury and obtained a second indictment charging Zuckerman with the same offense charged by the first indictment. Zuckerman proceeded to trial and was found guilty. As the Court found that Zuckerman was in need of psychiatric care, Zuckerman was originally given a provisional sentence of hospitalization in a suitable facility pursuant to 18 U.S.C. § 4244.1 Zuckerman was unsuccessful on direct appeal.
Zuckerman filed a motion for relief pursuant to 28 U.S.C. § 2255 in 1992, raising claims concerning ineffective assistance of counsel. The motion was denied, and this Court affirmed. Zuckerman filed a second § 2255 motion in 1994, raising additional claims concerning ineffective assistance of counsel. The District Court denied relief and this Court affirmed.
Over a decade later, Zuckerman filed the petition at issue here. Zuckerman sought to raise the following issues: (A) in light of District of Columbia v. Heller, — U.S. -, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), his conviction violated the Due Process clause of the Fifth Amendment because the decision to prosecute the second indictment was based on his attempts to purchase firearms; (B) he should have been granted a change of venue; (C) he was entitled to an appellate panel from another circuit on direct appeal; (D) the appointed advisory defense attorney provided ineffective assistance of counsel; (E) the Third Circuit engaged in unlawful retaliation by entering a judgment order on direct appeal rather than hearing oral argument; (F) the trial court erred in failing to advise the jury that exaggeration is a defense to a mail threat charge; (G) the *293Speedy Trial Act was violated; (H) the court-appointed criminal defense attorney provided ineffective assistance in obtaining psychiatric evaluation; (I) the trial judge undermined his right to a jury trial by telling the jury that it was required to follow the trial court’s instructions; and (J) the court should liberally relitigate issues that had earlier been asserted and denied.
The District Court entered an order and opinion on October 21, 2008, denying with prejudice Zuckerman’s request to reliti-gate issues, and his already litigated claims (issues “G,” “H,” and “J”). The Court also denied claims “E” and “I” because they were without merit. The Court required Respondents to answer the remaining claims.
After considering the answer and Zuck-erman’s reply and supplemental replies, the District Court denied the remaining claims. Zuckerman appealed, and was informed that the Court would consider summary action. Zuckerman filed a brief in response.
Our review of the District Court’s legal conclusions is plenary, and we apply a clearly erroneous standard to its factual findings. Okereke v. United States, 307 F.3d 117, 119-20 (3d Cir.2002). We may affirm on grounds different than those used by the district court in reaching its decision. Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir.2001).
The writ of error coram nobis and the writ of audita querela are available in criminal cases to the extent they fill in gaps in the current system of post-conviction relief. Massey v. United States, 581 F.3d 172 (3d Cir.2009) (audita querela); United States v. Baptiste, 223 F.3d 188 (3d Cir.2000) (coram nobis). We recently reiterated that a motion filed pursuant to 28 U.S.C. § 2255 is the presumptive means of challenging a federal conviction, and in the rare instance where a § 2255 motion is “inadequate or ineffective,” a federal prisoner may resort to a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Massey, 581 F.3d at 174 n. 1. Here, however, because Zuckerman is no longer in custody, he could no longer file a § 2255 motion (even with this Court’s permission), nor could he file a § 2241 petition.2 We have noted, “[wjere no other avenue of judicial review available for a party who claims that s/he is factually or legally innocent as a result of a previously unavailable statutory interpretation, we would be faced with a thorny constitutional issue.” In re Dorsa-invil, 119 F.3d 245, 248 (3d Cir.1997).
Such is not the case here, however. Cf. United States v. Richter, 510 F.3d 103, 104 (2d Cir.2007) (finding writ of audita quere-la does not lie to raise claim under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Zuckerman cannot show that § 2255 is “inadequate or ineffective” to raise his claims lettered “B” through “J.” He pursued a direct appeal, and has had two post-conviction chances to raise challenges to his conviction and sentence. Massey, 581 F.3d at 174 (petitioner may not resort to audita querela simply because he cannot satisfy requirements of *294Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)); Baptiste, 223 F.3d at 189-90 (petitioner may not resort to coram nobis simply because he cannot satisfy requirements of AEDPA).
Zuckerman’s only claim that could not have been raised in an earlier motion or on direct appeal is his claim based on Heller, because Heller was not decided until 2008. We need not consider, however, whether Zuckerman could proceed by way of coram nobis or audita querela to pursue his Heller claim, because Zuckerman has not shown that such an extraordinary remedy is necessary; ie., that he was convicted for conduct that was not criminal, see Dorsainvil, 119 F.3d at 248; or that an error affects the very jurisdiction of the trial court, see United States v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989). Mailing a threatening communication is a crime, and Zuckerman makes no claim that the District Court lacked jurisdiction to try the case against him.3
For the foregoing reasons, we will af-fkm the District Court’s judgment.4
. After treatment, the Federal Correctional Institution at Butner decided that Zuckerman was no longer in need of treatment, and he was returned to the District Court for sentencing. On February 22, 1993, the District Court sentenced Zuckerman to time served, and placed him on supervised release for three years. Answer, Dist. Ct. dkt. # 6, at 5-6.
. Although Zuckerman is not "in custody," if we found that extraordinary relief pursuant to a writ of error coram nobis or a writ of audita querela were warranted, we assume Zucker-man could show continuing consequences from his conviction. See Torzala v. United States, 545 F.3d 517, 521 (7th Cir.2008) (holding that court had jurisdiction to consider appeal from unsuccessful § 2255 movant who had been released from custody because of his inability to possess firearms lawfully).
. Further, we agree with the District Court that Zuckerman's Due Process claim is without merit. Heller does not impugn the prosecutor’s motivation for seeking the second indictment against Zuckerman. See Heller, 128 S.Ct. at 2816-17 & n. 26; Dist. Ct. Op. at 5 (Jan. 28, 2009).
. Zuckerman's motion to expand the record is granted, as the documents he seeks this Court to review are part of the criminal record below.
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OPINION
PER CURIAM.
In July 2009, Derrick Brown, a federal inmate housed in Pennsylvania, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania seeking to challenge a conviction and sentence imposed in 2008 in the United States District Court for the Western District of Tennessee. Noting that Brown had yet to seek collateral review under 28 U.S.C. § 2255, and that his time in which to do so had not yet expired, the District Court concluded that § 2255 is not “inadequate or ineffective” to test the legality of Brown’s detention, and thus it dismissed the § 2241 petition notwithstanding Brown’s various claims of “actual innocence.” Brown timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. Because this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10 .6, we will summarily affirm the District Court’s judgment.1
Section 2241 is unavailable to Brown to challenge his federal conviction and sentence unless a § 2255 motion would be “inadequate or ineffective.” Because Brown concedes that he had yet to pursue § 2255 relief at the time he filed his § 2241 petition,2 he plainly cannot show that § 2255 is inadequate or ineffective. Relief, if any, on Brown’s claims must first be sought under § 2255 in the sentencing court. Further, as the District Court fully explained, Brown’s assertions of “actual innocence” do not render § 2255 inadequate or ineffective. Brown simply is not in the “unusual position ... of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate[.]” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997).
The District Court’s judgment will be affirmed.
. To the extent that Brown needs a certificate of appealability to pursue this appeal, it is denied. Reasonable jurists could not debate the District Court's decision to dismiss Brown's petition. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
. The record indicates that Brown's direct appeal proceedings remained pending at the time he filed the § 2241 petition.
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OPINION OF THE COURT
RUFE, District Judge.
Appellant North Hudson Regional Fire and Rescue (“Regional”) brings this matter as an interlocutory appeal of a preliminary injunction from the District of New Jersey. For the reasons that follow, we will sua sponte summarily remand the case to the District Court for further proceedings.2
/.
As we write for the parties, who are familiar with the facts and procedural history, we recount only those aspects of the case that are essential to our ruling.
The New Jersey Department of Personnel periodically administers a written and physical firefighter exam for all fire departments in the state of New Jersey. Applicants who take the written and physi*299cal exam are ranked on a Civil Service list based on their test scores. Candidates provide their residence codes, which are then used to determine which individuals will be listed as eligible candidates for municipalities that restrict hiring based on residence. Residency is determined as of the date of a candidate’s application.
Regional is a consolidated municipal fire department of 300 employees, providing services to the towns of Guttenberg, North Bergen, Union City, Weehawken, and West New York (the “Member Municipalities”), which are all located in the northern part of Hudson County, New Jersey. Regional restricts hiring to individuals residing in one of the five towns located in its Member Municipalities. Applicants must reside in the Member Municipality at the time of their exams in order to be placed on Regional’s residency-restricted candidacy list. When Regional needs to fill a vacancy, it hires the highest ranked individual(s) from its list. Once hired, Regional’s firefighters are free to live anywhere in the State of New Jersey.
On April 10, 2007, NAACP, the Newark Branch NAACP, the New Jersey State Conference NAACP, Allen Wallace, La-mara Wapples, and Altarik White (collectively referred to hereinafter as “NAACP”) filed a class action complaint against Regional alleging that Regional’s geography-based hiring plan caused discrimination against African Americans who reside in the southern part of Hudson County and neighboring Essex and Union counties, in violation of Title VII of the Civil Rights Action of 1964, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49.3 On December 23, 2008, NAACP filed a motion for preliminary injunction after receiving notice that Regional intended to hire new firefighters.4
On February 17, 2009, the District Court held oral argument on NAACP’s motion for preliminary injunction. After consideration of the arguments and the parties’ expert reports, the District Court granted NAACP’s motion and enjoined Regional from hiring candidates from its Member Municipalities list until it obtained a revised Civil Service list that expanded the residency requirement to include residents of south Hudson, Essex, and Union counties.5
Applying N. A. A. C.P. v. City of Bayonne, N.J., 134 F.3d 113 (3d Cir.1998), the District Court adopted NAACP’s expert’s conclusion, which was undisputed by Defendant’s expert, that the relevant labor market is the Tri-County area or the entire state of New Jersey. While the experts disagreed as to the “qualified population”, the District Court determined that both expert reports support a finding that the residency requirement creates a discriminatory disparate impact. The District Court further determined that His-panies’ employment prospects were not relevant as to whether Regional’s current hiring practices discriminate against African Americans because “[discriminatory hiring practices against one group may not be maintained to benefit another group, *300even if that other group is a protected class.”6
The District Court ultimately concluded that in light of the ratio between the racial composition of the at-issue jobs, which included two African Americans, and the racial composition of the qualified population in the relevant labor market, which included either 121 or 65 African Americans, depending on the definition of the relevant labor market, NAACP had proven a substantial likelihood of success on the merits of its Title VII class action claim. The District Court also concluded that Regional’s residency-restricted hiring plan discriminated against African Americans residing in neighboring counties, which justified its issuance of an injunction preventing Regional from hiring additional firefighters until it obtained a revised Civil Service list that expanded the residency requirements to include residents of southern Hudson, Essex, and Union counties.
Shortly thereafter, Regional filed the instant interlocutory appeal challenging the District Court’s decision. Intervenor-De-fendants Alex DeRojas, et al. (“Interve-nors”) joined in this litigation as six Hispanic firefighter candidates on Regional’s residency-restricted candidate list. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a).
II.
On the Court’s own motion, we believe it is necessary to summarily remand this matter for the District Court’s further consideration of what implications the recently decided United States Supreme Court decision in Ricci v. DeStefano, — U.S. -, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) may have on this case. As the District Court granted the preliminary injunction in February 2009, and Ricci was not decided until June 29, 2009, the District Court was not afforded an opportunity to consider the issue herein appealed, in light of Ricci, when it issued its ruling.
In Ricci, 118 firefighters in New Haven, Connecticut took examinations to qualify for promotion to the rank of lieutenant or captain. When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate. Some firefighters argued that the exams should be discarded because the results showed the exams to be discriminatory and threatened a lawsuit if the City of New Haven (“New Haven”) made promotions based on the exams. Other firefighters argued that the exams were neutral and fair and that they, too, would file a discrimination lawsuit if New Haven relied on the statistical racial disparity, ignored the exam results, and denied promotions to the candidates who had performed well. In the end, New Haven agreed with those who protested the exam results and threw out the examinations. As a result, certain Caucasian and Hispanic firefighters filed suit against New Haven, alleging that by discarding the exam results, New Haven discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. New Haven, in defense of its actions, argued that if it had certified the exam results, it would have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The district court granted summary judgment for New Haven and the Second Circuit Court of Appeals affirmed. The U.S. Supreme Court, however, reversed and remanded on the basis that “race-based action like [New Haven’s],. .is impermissible under Title VII unless the employer can demonstrate a strong basis in *301evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”7 The Supreme Court held,
under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.8
As Justice Kennedy states in his Opinion, the Supreme Court’s 5-4 decision in Ricci “clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions.”9 In Ricci, the Supreme Court set the new standard for Title VII disparate treatment and disparate impact cases. Consequently, we conclude that the age and posture of this case justify a summary remand to allow the District Court the opportunity to apply Ricci to its factual and legal analysis.
III.
For the foregoing reasons, we will summarily remand this matter to the District Court for consideration and analysis of Ricci and further proceedings consistent with this opinion pursuant to 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
. The District Court's underlying Memorandum Opinion ruled on three motions: NAACP's Motion for Class Certification, NAACP's Motion for Preliminary Injunction, and NAACP’s Motion for Bifurcation. The District Court granted NAACP’s motions for class certification and preliminary injunction and denied NAACP’s bifurcation motion. The only issue challenged on appeal is the District Court’s decision to grant preliminary injunction relief.
.In 2000, the population of the Member Municipalities was 69.6 percent Hispanic; 22.9 percent Caucasian; and 3.4 percent African American. As of July 2008, Regional had 323 full-time employees: 64 were Hispanic; 255 were Caucasian; 2 were African American; and 2 were identified as other races. See N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 255 F.R.D. 374, 380 (D.N.J.2009).
. The parties had previously agreed that Regional would not hire withoul providing notice to NAACP while the instant District Court case was pending.
. North Hudson Regional Fire & Rescue, 255 F.R.D. at 393.
. Id. at 391.
. Ricci, 129 S.Ct. at 2664.
. Id. at 2661.
.Id. at 2681.
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OPINION OF THE COURT
FISHER, Circuit Judge.
U.S. Horticultural Supply, Inc. (“USHS”) appeals from an order of the District Court of the Eastern District of Pennsylvania granting summary judgment as a matter of law to The Scotts Company (“Scotts”). See U.S. Horticultural Supply, Inc. v. Scotts Co., 2009 WL 89692 (E.D.Pa. Jan.13, 2009). USHS filed suit claiming damages from an unlawful conspiracy to restrain trade in violation of Section 1 of the Sherman Act. 15 U.S.C. § 1. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Scotts is a producer of consumer and professional horticulture products that are sold through a network of distributors to both nurseries and greenhouses. Among its various products, Scotts sells controlled release fertilizer (“CRF”). Griffin Greenhouse Supplies (“Griffin”) has been a distributor of Scotts products since at least 1993, and in the mid-1990s Griffin began to expand its operations into the eastern part of the United States. USHS was also a horticultural products distributor and sold its products nationwide.
In 1996, USHS and Scotts signed a Horticultural Products Distributor Agreement (“1996 Distributor Agreement”). The 1996 Distributor Agreement provided that Scotts would deliver its products to USHS’ warehouses and customers within a defined territory. This territory included North Carolina, Virginia, West Virginia, Pennsylvania, New Jersey, Maryland, Delaware and Connecticut, as well as the District of Columbia and several counties in New York. The Agreement also provided for product delivery to Texas and Louisiana if USHS established branches in those states.
The 1996 Distributor Agreement expired by its terms on December 23, 2000. Scotts, however, continued to provide product to USHS in the absence of an agreement until August 3, 2001. It was on that date that USHS and Scotts agreed to renew their distributorship agreement for a term ending September 30, 2002 (“2001 Distributor Agreement”). The new agreement amended the definition of territory and removed Scotts’ obligation to provide product to USHS if USHS expanded into Texas and Louisiana.
During the course of Scotts’ business relationship with USHS, Griffin complained on various occasions that USHS was selling CRF below market prices and was reducing the value of the Scotts brand.1 Scotts acknowledged USHS’ aggressive pricing scheme but was not concerned because Scotts believed that USHS *308could not maintain its low profit margins in the long-term. Griffin proposed that Scotts drop USHS as a distributor in 1999, but Scotts declined to end its business relationship with USHS at that time. Scotts did, however, choose not to renew the 2001 Distributor Agreement upon its expiration on September 30, 2002.
On March 19, 2002, prior to the expiration of the 2001 Distribution Agreement, Scotts and USHS entered into two additional distribution agreements for two other CRF varieties: Ficote and Grocote. The Ficote Agreement expired by its terms on September 20, 2003, and the Grocote Agreement expired by its terms on September 30, 2006.
On November 5, 2004, USHS brought a claim in district court against Scotts and Griffin alleging a conspiracy in restraint of trade, in violation of Section 1 of the Sherman Act.2 Specifically, USHS alleged that it was terminated as a distributor of Scotts’ products because USHS’ price-cutting interfered with an agreement between Scotts and Griffin to maintain above market price levels for the sale of CRF in the mid-Atlantic retail market. (Appellant’s Br. at 2.)
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a grant of summary judgment is plenary and all reasonable inferences are drawn in favor of the non-moving party. Harrison Aire, Inc. v. Aerostat Int’l, Inc., 423 F.3d 374, 380 (3d Cir.2005). In antitrust cases, “normal summary judgment principles apply.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004). A court should find for the moving party “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (quoting Fed.R.Civ.P. 56(c)).
III.
The District Court entered summary judgment for Scotts. On appeal, USHS claims the District Court erred in finding USHS’ theory of conspiracy implausible, that there was sufficient evidence of concerted action to defeat summary judgment, and there was sufficient evidence of anti-competitive effect. We find that the District Court was correct in its determination that USHS failed to provide evidence sufficient to survive summary judgment as to the definitions of the relevant product and geographic markets.3 As such, we affirm the District Court’s grant of summary judgment.
A.
The District Court was correct in applying a rule of reason analysis to this Section 1 Sherman Act claim.4 This analysis requires the plaintiff to demonstrate *309“adverse, anti-competitive effects within the relevant product and geographic markets.” Rossi v. Standard Roofing, Inc., 156 F.3d 452, 464 (3d Cir.1998). A plaintiff can establish this anticompetitive effect through a showing of facially anticompeti-tive restraints or reduced output, increased prices or reduced quality in goods or services. Gordon v. Lewistown Hosp., 423 F.3d 184, 210 (3d Cir.2005). In the alternative, this Court has also held that “because proof that the concerted action actually caused anticompetitive effects is often impossible to sustain, proof of the defendant’s market power will suffice.” Id. Market power, defined as the “ability to raise prices above those that would otherwise prevail in a competitive market, is essentially a surrogate for detrimental effects.” Id. Plaintiffs in Section 1 claims have the burden of establishing both the product and geographic markets which make up the relevant competitive market.5
i.
USHS has the burden of defining the relevant product market. See Pastore v. Bell Tele. Co. of Pa., 24 F.3d 508, 512 (3d Cir.1994). “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). “‘Interchangeability implies that one product is roughly equivalent to another for the use to which it is put; while there might be some degree of preference for the one over the other, either would work effectively.” Allen-Myland, Inc. v. Inti Bus. Machs. Corp., 33 F.3d 194, 206 (3d Cir.1994). When assessing reasonable interchangeability, “[fjactors to be considered include price, use and qualities.” Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 722 (3d Cir.1991). As we explained in Tunis Bros., “products in a relevant market [are] characterized by a cross-elasticity of demand, in other words, the rise in the price of a good within a relevant product market would tend to create a greater demand for other like goods in that market.” Id.6
*310Where the plaintiff fails to define its proposed relevant market with reference to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed relevant market that clearly does not encompass all interchangeable substitute products even when all factual inferences are granted in plaintiffs favor, the relevant market is legally insufficient.
Queen City Pizza, Inc., 124 F.3d at 436.
We have also stated that “a well-defined submarket may constitute a relevant product market” for antitrust purposes. Tunis Bros. Co., 952 F.2d at 723. In determining the interchangeability between different products within a sub-market, an antitrust plaintiff must still provide evidence of selling price, uses, and physical characteristics. See Am. Bearing Co., Inc. v. Litton Indus., Inc., 729 F.2d 943, 949 (3d Cir.1984); Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 962 (6th Cir.2004). But in determining “[t]he boundaries of such a submarket,” we can also consider “such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Brown Shoe Co., 370 U.S. at 325, 82 S.Ct. 1502.
USHS argues that there is a distinct market for CRF sold to nurseries and that it presented sufficient “practical indicia” evidence to establish this “submarket.”7 First, USHS offers an internal Scotts document that states that Scotts’ competition for manufacturing CRF was “national.” This established, according to USHS, a distinct group of CRF manufacturers who sold on a national level. Second, USHS’ expert testified that CRF had distinct and separate prices from other substitutes. Next, Scotts had a division devoted primarily to CRF sales to nurseries and that 85% of its CRF sales were in fact to nurseries. USHS also offers testimony from two former Scotts employees that “CRF was perceived by nurseries as having ‘peculiar characteristics and uses,’ because CRF was the only type of fertilizer they could apply to crops without fear of toxic runoffs that potentially would violate federal and state environmental regulations.” (Appellant Br. at 48.)
USHS further relies on a report from its liability expert, John L. Solow, to establish that CRF is a distinct product market. The report states that at the retail level, CRF and plant protection products (“PPP”) are sold to nurseries and water soluble fertilizer and PPP are sold to greenhouses. This demonstrates that these products are complements, rather than substitutes, so a distinct market exists for each.
Even assuming that practical indicia evidence is sufficient by itself to establish the relevant product market under a rule of reason analysis, USHS still has the burden of presenting evidence demonstrating its pricing decisions are constrained. See Allen-Myland, 33 F.3d at 208 n. 16.
USHS’ evidence does not make “reference to the rule of reasonable interchangeability and cross-elasticity of demand” and is, therefore, legally insufficient. Queen *311City Pizza, Inc., 124 F.3d at 436. USHS’ evidence fails to discuss price and use implications within its proposed market, which is fatal to the analysis of interchangeable products under a rule of reason analysis in this case. Further, USHS’ expert report does not include specific information relating to price increases or price stability for substitute products in relation to a rise in the price of Scotts’ CRF. The report states only that CRF had distinct and separate prices from other substitutes, but fails to provide any economic analysis of these substitutes. The failure to present evidence that its pricing decisions are constrained cannot be overcome by the “practical indicia” evidence offered by USHS. As such, USHS failed to satisfy its evidentiary burden to define the relevant product market.
We find the District Court was correct in holding that USHS failed to present sufficient evidence to establish a genuine issue of fact as to the relevant product markets.
ii.
USHS also has the evidentiary burden of establishing the relevant geographic markets for CRF sold to nurseries. Pa. Dental Ass’n v. Med. Serv. Ass’n of Pa., 745 F.2d 248, 260 (3d Cir.1984). The District Court found that USHS failed to present evidence sufficient to survive summary judgment because the evidence offered to establish the relevant geographic market did not speak to buyer behavior. We agree.
“The relevant geographic market is the area in which a potential buyer may rationally look for the goods or services he or she seeks....” Id. (emphasis added). Consequently, the geographic market is not comprised of the region in which the seller attempts to sell its product, but, rather, is comprised of the area where customers would look to buy such a product. Tunis Bros. Co., 952 F.2d at 726. The evidence of the geographic market presented by the party claiming a Section 1 violation must therefore speak to buyer behavior.
USHS argues that the geographic markets for CRF are the United States at the manufacturing level and the mid-Atlantic and New England at the retail level.
First, in defining the manufacturing level market, USHS offers various internal Scotts documents that suggest that Scotts sold CRF on a nationwide basis and viewed the United States as its internal definition of “market.” USHS argues that these documents are evidence of industry perception and should be afforded the appropriate evidentiary weight. The legal standard under Tunis Bros., however, is not what Scotts believes the market is or where Scotts attempts to sell CRF, but rather where CRF distributors, like USHS and Griffin, look to purchase CRF. Id. The documents offered by USHS do not speak to this type of buyer behavior and, therefore, they do not provide legally sufficient support for geographic markets of CRF at the manufacturing level. Additionally, USHS’ expert report does not further discuss the geographic market for CRF at the manufacturing level.
Second, USHS argues that there are both mid-Atlantic and New England retail markets for CRF distributors. In support of this geographic market, USHS relies on industry publications and various internal Scotts documents. USHS also relies on the territorial restrictions contained in the 1996 Distributor Agreement.
Much like the evidence presented in support of the CRF market for manufacturers, the evidence offered by USHS for the retail geographic market does not speak to consumer preferences or behavior. The internal Scotts documents speak to where Scotts looked to sell its product, *312not where nurseries looked to purchase CRF. Next, the territorial restrictions included in the 1996 Distributor Agreement only speak to where Scotts would ship CRF, not where buyers look to purchase. USHS’ expert report also fails to offer analysis of buyer behavior. The report relies exclusively on the 1996 Distributor Agreement. Further, the report does not define the mid-Atlantic or New England markets. The strongest piece of evidence that speaks to consumer behavior is a comment by USHS’ CEO that nurseries and greenhouses have a strong preference for regional distributors. This statement, however, fails to define, even broadly, the regions in which nurseries would seek out CRF.
The District Court was correct in determining that USHS failed to provide sufficient evidence of buyer behavior to survive summary judgment with regard to its definition of the geographic markets for CRF sold to nurseries.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. The details of the various documents offered by USHS as evidence of the conspiracy between Scotts and Griffin are well known by the parties and will not be discussed in detail.
. USHS and Griffin reached a settlement as to the claims between those parties and they are not at issue in this case.
. This is not to say we disagree with the District Court’s application of Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), in holding that the allegations advanced by USHS were implausible. Nor do we express disagreement with the District Court's finding that USHS presented insufficient evidence of the alleged conspiracy to create a genuine issue of material fact that Scott entered into an illegal vertical conspiracy to maintain prices and remove USHS from the market. Rather, as a showing of anticom-petitive effect within the relevant markets is required to sustain a Section 1 Sherman Act claim, we need not address USHS' other arguments on appeal in order to affirm the District Court’s grant of summary judgment.
.One of the most frequently cited descriptions of the rule of reason analysis comes from Justice Brandéis in Chicago Board of *309Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918):
The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.
. As we conclude that USHS failed to provide sufficient evidence to survive summary judgment as to the relevant product and geographic markets, we need not evaluate the evidence offered as to anticompetitive effect.
. Cross-elasticity is a measure of reasonable interchangeability. As one treatise observes:
The economic tool most commonly referred to in determining what should be included in the market from which one then determines the defendant's market share is cross-elasticity of demand. Cross-elasticity of demand is a measure of the substitutability of products from the point of view of buyers. More technically, it measures the responsiveness of the demand for one product to changes in the price of a different product.
Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 438 n. 6 (3d Cir.1997) (quoting E. Thomas Sullivan and Jeffrey L. Harrison, Understanding Antitrust and its Economic Implications 217 (1994)).
. At oral argument, there was discussion whether the argument relying on practical indicia evidence was waived by not being raised in the District Court. While it is true that USHS never used the "practical indicia” language with the court below, iL did argue that CRF constituted its own submarket and cited to cases that utilized the practical indi-cia language. On appeal they greatly expand on the limited argument they made to the lower court. For these reasons, we do not find that USHS waived this argument.
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OPINION OF THE COURT
LOURIE, Circuit Judge.
Eddie Martinez appeals from the judgment of the United States District Court for the District of New Jersey sentencing him to 70 months in prison for drug trafficking and firearm offenses. We will affirm.
I. BACKGROUND
On August 6, 2007, Martinez pled guilty to one count of conspiracy to distribute and possess with intent to distribute over 500 grams of cocaine contrary to 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(ii) in violation of 21 U.S.C. § 846 and one count of possession of a firearm after previously being convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Martinez’s Pre-Sen-tencing Report calculated a combined offense level of 27 under the Sentencing Guidelines. Martinez’s plea agreement stipulated to an offense level of 25 based on (1) a downward adjustment of two levels for accepting personal responsibility pursuant to Guideline § 3El.l(a) and (2) a downward adjustment of one level for timely agreeing to enter a plea pursuant to § 3El.l(b). The District Court accepted the stipulated total offence level of 25 at Martinez’s sentencing hearing on November 20, 2007.
At the hearing, the District Court also calculated a criminal history category of three based on five criminal history points. In so doing, the Court rejected Martinez’s argument that a drug-related conviction in which he was sentenced under North Carolina’s Youthful Offender Act qualified as a juvenile rather than as an adult conviction. The Court thus assigned three criminal *314history points for that conviction under Sentencing Guideline § 4A1.2(d)(l).
Finally, the District Court denied Martinez’s motions for two further downward departures, one under Guideline § 5H1.6 for extraordinary family circumstances and another under § 5K2.0 for providing assistance to law enforcement. With regard to his family circumstances, the Court found that Martinez had made no more than a generic argument that his family will suffer hardship as a result of his incarceration. With regard to assisting law enforcement, the Court found that the assistance did not rise to such a level as to take it out of the heartland of the Guidelines for purposes of § 5K2.0 and that granting the motion would require the Court to substitute its judgment for that of the United States Attorney, who had declined in this case to file a motion in support of a departure for providing substantial assistance to authorities under § 5K1.1. The Court recognized its discretion to grant a departure but nevertheless, for both motions, declined to exercise that discretion, resulting in a final Guideline range of 70 to 87 months imprisonment.
The District Court sentenced Martinez to 70 months in prison and four years of supervised release. Martinez appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II. DISCUSSION
When reviewing a sentence, this Court must first “ensure[ ] that the district court committed no significant procedural error” and “then, at stage two, consider its substantive reasonableness.” United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Where a defendant challenges the calculation of the Guidelines’ range, this Court reviews a district court’s interpretation of the Sentencing Guidelines de novo and reviews any findings of fact used in the calculation for clear error. United States v. Wood, 526 F.3d 82, 85 (3d Cir.2008).
Martinez alleges three errors in the District Court’s sentencing decision. First, Martinez argues that the District Court incorrectly added three points to his criminal history by including a conviction in which he was sentenced as a Committed Youthful Offender under North Carolina law and served only two months. Second, Martinez alleges that the District Court abused its discretion in denying a motion for a downward departure under Sentencing Guideline § 5H1.6 based on his extraordinary family circumstances, and specifically his close relationship with and positive influence on his children. And finally, Martinez alleges that the Court abused its discretion in denying a motion for a downward departure for his cooperation with the government under Guideline § 5K2.0 despite the government’s refusal to submit a motion under § 5K1.1.
The government responds that the District Court correctly added three points to Martinez’s criminal history under Sentencing Guideline § 4A1.2(d)(l) because Martinez’s drug conviction at age 17 was an adult conviction under North Carolina law, for which he received an 18-month sentence. With regard to the District Court’s denial of downward departures under § 5H1.6 and § 5K2.0, the government argues that this Court does not have jurisdiction to review such discretionary denials.
We agree with the government that the District Court did not err in assigning three points to Martinez’s criminal history under § 4A1.2(d)(1) based on his drug-related conviction in North Carolina. The District Court committed no clear error in finding that Martinez’s North Carolina conviction was an adult conviction. See *315Wood, 526 F.3d at 85. Martinez acknowledged that he was over 16 years of age at the time he committed the offense, making him subject to prosecution as an adult under North Carolina law. N.C. Gen.Stat. § 7B-1604. Moreover, sentencing as a Committed Youthful Offender does not negate the effect of an adult conviction under the Guidelines. Finally, the fact that Martinez served only two months is irrelevant. The conviction imposed an 18-month sentence, meeting § 4A1.2(d)(l)’s requirement that the sentence imposed exceed one year and one month.
We also agree with the government that we do not have jurisdiction to review the District Court’s discretionary decision not to grant two further downward departures. See United States v. Vargas, 477 F.3d 94, 103 (3d Cir.2007). We do, however, have jurisdiction when a district court mistakenly believes that it lacked the discretion to grant a departure. Id. In this case, Judge Joel Pisano explicitly stated at the sentencing hearing that he recognized that he had, but would not exercise, the discretion to grant Martinez’s motions for downward departures under § 5H1.6 and § 5K2.0. As such, we lack jurisdiction to review the District Court’s denial of Martinez’s motions.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Comb’s sentencing judgment.
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OPINION OF THE COURT
PER CURIAM.
This is an appeal from the District Coürt’s dismissal of Kevin Patrick Flood’s *317pro se civil rights complaint. We will affirm in part and reverse in part and remand to the District Court for further proceedings.
Flood is currently an inmate at FCI-Fort Dix. He was recently arrested, tried, and convicted on federal narcotics and firearm charges. See United States v. Flood, 339 Fed.Appx. 210 (3d Cir.2009) (affirming Flood’s conviction and sentence). In April 2006, before his trial, Flood filed a civil suit against certain members of the Pennsylvania State Police who participated in his arrest and interrogation and against Keith Brubaker, a police informant. Flood alleged that the defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of the Constitution. Specifically, he alleged that state police illegally entered his home, destroyed his personal papers, and used improper and excessive interrogation techniques on him at the state police barracks. Flood also alleged that Brubaker planted drugs at Flood’s house and fed him narcotics to weaken his resistance during the police interrogation.
The District Court dismissed Flood’s lawsuit for failure to state a claim because the claims, if successful, would necessarily imply the invalidity of the criminal proceedings against him. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We vacated the District Court’s judgment and remanded for further proceedings because the District Court did not perform a claim-by-claim analysis of Flood’s claims as required by our Heck jurisprudence. Flood v. Schaefer, 240 Fed.Appx. 474, 476 (3d Cir.2007) (per curiam) (unpublished). On remand, Flood attempted to amend his complaint to assert that defendants tampered with, or falsely manufactured, the audio tapes made during the investigation of his criminal case. The District Court denied Flood’s motion, holding that the allegations, if true, would call the validity of his convictions into doubt, thus violating the rule in Heck. Flood filed an interlocutory appeal from that order, which we dismissed for Flood’s failure to pay the requisite fees. Flood v. Schaefer, C.A. No. 08-4659 (3d Cir.2008). Next, the District Court, adopting the Report and Recommendation of the Magistrate Judge, granted defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Flood filed a timely notice of appeal from that order. Flood has also filed a motion for sanctions and requesting appointment of a special master in this Court.
We exercise plenary review over the District Court’s decision to grant defendant’s motion to dismiss. Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d 342, 346 (3d Cir.2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when its factual content allows the court to draw a reasonable inference that the defendant(s) are liable for the alleged misconduct. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). We review the District Court’s decision denying Flood’s motion to amend his complaint for abuse of discretion. See Garvin v. City of Philadelphia, 354 F.3d 215, 219 (3d Cir.2003).
We agree with the District Court’s disposition of Flood’s two claims alleging that Appellees tampered with audio tapes the Government submitted in his criminal trial. If a judgment in favor of a plaintiff in a § 1983 civil suit would necessarily imply the invalidity of the plaintiffs prior criminal conviction, then the suit must be dismissed. Heck, 512 U.S. at 487, 114 S.Ct. 2364. Here, inasmuch as a finding *318that Appellees tampered with evidence which was presented to Flood’s criminal jury would require an invalidation of his criminal conviction, those claims are barred by Fleck. Therefore, the District Court did not abuse its discretion in denying Flood’s motion to amend his complaint to add claims challenging the validity of the audio tapes.
Flood’s remaining claims are partially barred by the doctrine of collateral estoppel, or issue preclusion. Issue preclusion prevents a party who litigated an issue previously from rearguing that particular issue in a subsequent proceeding. See Szehinskyj v. Att’y Gen., 432 F.3d 253, 255 (3d Cir.2005). “The prerequisites for the application of issue preclusion are satisfied when: 1) the issue sought to be precluded [is] the same as that involved in the prior action; 2) that issue [was] actually litigated; 3) it [was] determined by a final and valid judgment; and 4) the determination [was] essential to the prior judgment.” Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir.2007). A finding in a prior criminal proceeding may prevent an individual from litigating the same issue in a subsequent civil proceeding. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 95 L.Ed. 534 (1951).1
In his criminal trial, Flood’s attorney challenged the voluntariness of the statements Flood made to the police. The District Court, in ruling on the motion, made several factual findings regarding Flood’s interrogation — including that police gave Flood two opportunities to use the restroom and offered him food and drink during questioning. These findings now preclude Flood’s civil claims alleging that he was denied food and access to a bathroom during questioning. See Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit). Even if we did not find the claims precluded, we would agree with the District Court that the food and drink, as well as the two bathroom trips police provided Flood, complied with constitutional requirements.
Flood’s claim that the police used excessive force during his questioning is a different matter, however. Flood argues that his ten-hour detention, when he was handcuffed to a metal folding chair in an unheated room without a blanket, was unreasonable in light of his known “serious back injury.” In the criminal trial, the District Court did not address the temperature of the room or the tightness of the handcuffs in its order resolving Flood’s suppression motion. Appellees argue that the District Court, in ruling on Flood’s suppression motion, was required to consider the totality of circumstances and would, therefore, have noted if the cold weather or the handcuffing influenced the voluntariness of his statement. (Appellees’ Br. at 11, citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). During the suppression hearing, however, Flood litigated only whether police administered proper Miranda warnings as required by the Fifth Amendment. In his suppression motion, Flood did not raise any excessive force claims arising under the Fourth Amendment, and, as a result, the District Court did not perform a totality of circumstances analysis. Therefore, the Fourth Amendment claims related to Flood’s ten-hour pre-trial detention were never litigated and are not barred by issue preclusion in his current civil case.
*319Our conclusion is not at odds with the Heck rule because it is analytically possible for Flood to claim that Appellees subjected him to unconstitutional conditions even if a statement he made during the same time period was voluntary. See, e.g., Gonzalez v. Entress, 133 F.3d 551, 553-54 (7th Cir.1998) (some Fourth Amendment violations are unrelated to a criminal conviction). Indeed, Flood argues that his excessive force claim is unrelated to the voluntariness of his confession. (Appellant’s Br. at 8-9.) While Flood asserts in the “factual allegations” section of his pleadings that police used improper methods to obtain his statement, (Amended Pleadings at 18-19.), he bases his claims in the “causes of action” section of his complaint on the Appellees’ deliberate indifference to his pain and suffering in violation of the Eighth and Fourteenth Amendments.2 (Id. at 25-26.) Moreover, Flood’s claims are not barred by preclusion principles since, as indicated above, Flood could not be expected to raise excessive force claims in his suppression hearing which were unrelated to the voluntariness of his confession.
Appellees also argue that Flood’s claims do not meet the pleading requirements under Fed.R.Civ.P. 12(b)(6). In order to plead a Fourth Amendment civil rights violation, Flood must show that a “ ‘seizure’ occurred and that it was unreasonable.” Curley v. Klem, 499 F.3d 199, 203 (3d Cir.2007) (citation and internal quotation marks omitted). It is unquestionable that Appellees seized Flood when they arrested him; thus, the only issue is whether officers acted unreasonably during his arrest. Id. (quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). While handcuffing an arrestee to a chair is not, by itself, unreasonable, we have held that an excessive force claim may arise from improper handcuffing during arrest. See Kopec v. Tate, 361 F.3d 772, 778 (3d Cir.2004). Arguably, if, as Flood alleges, police were aware that he had a severe back injury and handcuffed him in a manner that caused excessive pain and suffering, he could succeed in proving that the officers violated the Fourth Amendment. We conclude that Flood’s Fourth Amendment claim was sufficiently pleaded.3
We are not suggesting that Flood will ultimately be successful in this action, only that he has pleaded sufficient facts to allow the District Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Capogrosso v. The Sup.Ct. of N.J., 588 F.3d 180 (3d Cir.2009) (per curiam). Therefore, because the District Court erred in dismissing Flood’s claim arising from his handcuffing during questioning, we will remand for further proceedings on that claim only. *320The District Court’s order is affirmed in all other respects. Appellant’s motion for sanctions and requesting appointment of a special master is denied.
. Issue preclusion applies to issues decided in criminal proceedings. See Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
. Under the Eighth Amendment, the relevant question is “whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.2009) (citations and internal quotation marks omitted). We analyze Flood’s claims under the Fourth Amendment because the Eighth Amendment’s prohibition against cruel and unusual punishment does not apply until the State has complied with constitutional guarantees traditionally associated with criminal convictions. See Graham v. Connor, 490 U.S. 386, 398-99, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
. We agree with the District Court, however, that Flood’s chipped teeth, which he attributes to his teeth chattering due to the temperature of the interrogation room, cannot be attributed to excessive police force. Further, Flood's allegation, that he was held in an unheated room with an outside mean temperature of 38 degrees for ten hours while normally clothed, is not a sufficient deprivation of "the minimal civilized measure of life’s necessities” to constitute a violation of his Fourteenth Amendment Due Process rights. See Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir.1993).
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OPINION
PER CURIAM.
Pro se petitioner Gbeke Michael Awala was convicted in the United States District Court for the District of Delaware of one count of illegal re-entry into the United States following deportation based on his status as an aggravated felon. He has filed a document entitled “Petition for Writ of Habeas Corpus and Stay of Deportation, Petition for Declaratory Judgment and Permanent Injunction, Petition for Hearing on Immigration Judges Judicial Misconduct, Petition for Writ of Mandamus Compelling Federal Government to Make Payment ($1 Billion) in U.S. Currencies to Petitioner for Damages Under a Prima Facie Tort Claim.” For the reasons that follow, we will deny the petition.
Awala was convicted of illegal re-entry in January 2006. Following his sentencing in May 2006, he filed a notice of appeal in this Court, raising many of the same issues presented in the instant petition. On January 11, 2008, this Court affirmed Awala’s conviction and sentence. See United States v. Awala, 260 Fed.Appx. 469 (3d Cir.2008). Awala then filed a § 2255 motion which the District Court denied by opinion and order entered on January 4, 2010. On January 15, 2010, he filed a motion for reconsideration and an eviden-tiary hearing in the District Court which remains pending.
*321In the instant petition, Awala argues that he is a United States citizen by birth and therefore cannot be removed from this country. He demands the issuance of a United States passport, the return of the documents demonstrating his citizenship, and the payment of $1 billion in compensatory and punitive damages for intentional infliction of emotional distress, wrongful death, genocide, torture, economic loss and mental distress. Additionally, he seeks to challenge the constitutionality of his immigration proceedings, the conduct of his criminal trial by Judge Jordan, and the effectiveness of his attorney during that trial. While some of these claims may be cognizable in the context of a proper appeal from the District Court’s denial of his § 2255 motion, once his motion for reconsideration has been addressed, none of them is the proper subject of a mandamus petition.
The remedy of mandamus is reserved for the most extraordinary of circumstances, DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982), and may not be used as a substitute for the regular appeals process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006). A petitioner seeking a writ of mandamus must demonstrate that no other adequate means are available to obtain the desired relief and that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). This Court affirmed Awala’s conviction and sentence in 2008. Awala’s motion for reconsideration from the District Court’s denial of his § 2255 motion is currently pending in the District Court. If his motion is denied, Awala may appeal to this Court. None of the relief requested in the present motion is the proper subject of a mandamus petition and therefore, Awala cannot demonstrate that his right to issuance of the writ is “clear and indisputable.”
Based on the foregoing, we will deny the petition for a writ of mandamus.
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*327OPINION OF THE COURT
PRATTER, District Judge.
Blaine Claxton (“Claxton”) appeals from the District Court’s denial of his motion to dismiss an indictment on double jeopardy grounds. Claxton contends that the drug conspiracies alleged in the two separate indictments are essentially the same. Because we conclude that the two conspiracies are distinct, we will affirm the District Court’s decision.
I. Background
Claxton’s appeal involves the following two indictments.
A. The Marijuana Indictment — Criminal No.2006-31
The first indictment (the “Marijuana Indictment”), returned on October 17, 2006, charged Claxton and nine co-defendants— Richard Newman, Shusta Gumbs, Randy Simon, Karl Christian, Shermaine Peters, Valencia Thomas, Adila Magras, Charles Francis and Akeem Bloodman — with Conspiracy to Possess Marijuana with Intent to distribute, in violation of 21 U.S.C. §§ 841(a) and 846, as well as other drug related offenses. (Supplemental App. 1-15.) The indictment alleged that Claxton was the leader of a marijuana trafficking enterprise in St. Croix, Virgin Islands from September 1, 2005 to March 2006. In this capacity, Claxton utilized co-defendants Thomas and Francis, two United States Postal Service employees, to hold, track and secure marijuana sent to him by mail. They also were to help the conspirators avoid detection by law enforcement. Claxton also attempted to purchase marijuana from co-defendant Gumbs and received marijuana sent through the mail from the mainland United States by co-defendant Newman. Finally, Claxton used co-defendants Magras and Bloodman to distribute marijuana.
On June 1, 2007, Claxton pled guilty to the conspiracy charge of the Superseding Indictment and stipulated to the following factual basis for his guilty plea:
From September 1, 2005 to about November 18, 2005 in St. Croix, Defendant agreed with other co-defendants to distribute marijuana. Specifically, Defendant arranged for the receipt of approximately 3.8 kilograms of marijuana through the mail that was sent by co-defendant Richard Newman on or about September 29, 2005. Defendant also arranged for the receipt of approximately 895 grams of marijuana through the mails which was retrieved by co-defendant Charles Francis and hand delivered to Defendant. The amount of drugs involved in the conspiracy was between 2.5 kilograms and 5 kilograms of marijuana.
(Joint App. at 91-92.)
Claxton was sentenced to eight months incarceration.
B. The Cocaine Indictment — Criminal No.2006-30
The second indictment (the “Cocaine Indictment”), returned on May 19, 2009, charged Claxton and five co-defendants— Zacheaus Blake, Kalif Berry, St. Clair Li-burd, Karen Blake and Randy Simon— with Conspiracy to Possess Cocaine and Crack with Intent to Distribute, in violation of 21 U.S.C. §§ 841(a) and 846, along with other drug and firearm offenses. (Joint App. 67-89). The indictment alleged that Blake led a drug trafficking enterprise to distribute cocaine or convert cocaine to crack and distribute it from September 1, 2005 to February 2006 in St. Croix, Virgin Islands. In this conspiracy, Blake allegedly used the home of his sister and co-defendant Karen Blake to cook crack cocaine and store and hide cocaine powder and firearms. For his part, Clax-*328ton allegedly stored cocaine powder for co-defendant Berry and subsequently delivered the cocaine powder to Berry.
On May 8, 2007, Claxton and all but one of his co-defendants were convicted by a jury of these offenses.1 On December 15, 2008, the District Court granted Claxton’s motion for a new trial. On June 1, 2009, Claxton went to trial again, but the District Court granted his motion for a mistrial at the close of the Government’s case.2
Claxton then filed a motion to dismiss the Cocaine Indictment on double jeopardy grounds, contending that the conspiracy charged was the same as the conspiracy charged in Count I of the Marijuana Indictment. On July 17, 2009, the District Court denied Claxton’s motion. Claxton filed a timely notice of appeal.
II. Discussion3
The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Double jeopardy attaches when it is “shown that the two offenses charged are in law and in fact the same offense.” United States v. Felton, 753 F.2d 276, 278 (3d Cir.1985) (citing United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). The Double Jeopardy clause prevents the government from splitting one conspiracy into multiple prosecutions. See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942).
A defendant is entitled to a pre-trial evidentiary hearing if he makes a non-frivolous showing of double jeopardy. United States v. Liotard, 817 F.2d 1074, 1077 (3d Cir.1987). Once a defendant makes this showing, “the burden of persuasion shifts to the government to prove by a preponderance of the evidence that the two indictments charge the defendant with legally separate crimes.” Id. (citing Felton, 753 F.2d at 278).
To ensure that a defendant’s constitutional right against double jeopardy is protected in the context of successive conspiracy prosecutions, we apply a “totality of the circumstances” test in which we consider (1) the “locus criminis” (location) of the two alleged conspiracies; (2) the degree of temporal overlap between the conspiracies; (3) the overlap of personnel between the conspiracies, including unin-dicted co-conspirators; and (4) the similarity in the overt acts charged and the role played by the defendant in each indictment. United States v. Smith, 82 F.3d 1261, 1267 (3d Cir.1996) (citing Liotard, 817 F.2d at 1078). We do not apply these factors rigidly, id., but focus instead on the overarching inquiry of “whether two groups of conspirators alleged by the government to have entered separate agreements are actually all committed to *329the same set of objectives in a single conspiracy.” Id. at 1271.
Although both conspiracies here occurred in St. Croix, Virgin Islands during roughly the same time period, the conspiracies diverge in almost all other respects. Most obviously, the conspiracies had different objectives. The objective of the conspiracy alleged in the Cocaine Indictment was to obtain and distribute cocaine and crack. The objective of the conspiracy alleged in the Marijuana Indictment was to secure and distribute marijuana.
Claxton played a different role in each conspiracy and engaged in different overt acts. In the marijuana conspiracy, Clax-ton was the ring leader of a drug trafficking enterprise involving ten people. He used two post office employees to help track and secure marijuana sent to him via mail. He then used co-defendants Magras and Bloodman as couriers to distribute the marijuana. In contrast, in the cocaine conspiracy, Blake was the leader of the enterprise and Claxton was allegedly a role player, who assisted in the conspiracy by storing cocaine for co-defendant Berry.
In addition, for the most part, the two conspiracies involved different people. The cocaine conspiracy involved six defendants, while the marijuana conspiracy involved ten defendants. The only defendants charged in both indictments were Claxton and Randy Simon. Thus, the overlap in personnel was minimal. The overlap in their respective functions was even less.
Nevertheless, Claxton claims the Cocaine Indictment violates his rights under the double jeopardy clause because all the defendants in the two conspiracies were originally charged under one indictment with possessing and distributing both marijuana and cocaine, and both he and Randy Simon were charged in both conspiracies. Claxton also argues that, in both conspiracies, the government could only establish its case through recorded telephone conversations occurring at the same time and involving essentially the same co-defendants. However, merely separating charges in an original indictment into two separate subsequent indictments is not a per se violation of Double Jeopardy. Rather, Claxton must show that by dividing the original indictment, the government impermissibly divided a single conspiracy prosecution into multiple conspiracy prosecutions. Given the distinctions in the two conspiracies noted above, Claxton cannot make this showing. Nor does the similarity in the method of proof establish a single conspiracy, given the significant differences in the conspiracies already outlined in this opinion. Accordingly, Claxton has failed to make a non-frivolous showing of double jeopardy.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
. The Cocaine Indictment at issue in this appeal is the Second Superseding Indictment in the criminal case. The first Indictment was handed down on September 26, 2006. A Superseding Indictment was filed on October 17, 2006 upon which trial commenced on April 10, 2007.
. The reasons for granting the new trial and mistrial are not relevant for the purposes of deciding this appeal.
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OPINION
PER CURIAM.
Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny their petition for review.
I.
The petitionei's, wife and husband, are Chinese citizens. They married after arriving in the United States and later had two United States citizen children. Both petitioners concede removability, but they seek asylum, statutory withholding of removal, and relief under the Convention Against Torture (“CAT”) on the grounds that the birth of their second child will subject them to China’s coercive family-planning policies if returned. In particular, they fear that authorities will require one of them to be sterilized or impose a “social compensation fee” that they fear will rise to the level of persecution.
Only the wife testified before the Immigration Judge (“IJ”). She testified that Chinese law requires the sterilization of one member of any couple that has a second child and that she learned of this policy through television broadcasts and fliers. She also testified that she knows of *331at least three people who have been sterilized, but does not know of anyone who has been sterilized after returning to China with a second child born abroad. Petitioners also submitted documentary evidence, including a 2006 Congressional report, numerous news articles, and an affidavit from the wife’s sister. (A.R. 2570-2905.)
The IJ denied petitioners’ claims by written decision and order issued April 4, 2007. The IJ concluded that petitioners had a subjectively genuine fear of future persecution but not an objectively reasonable one. In particular, the IJ concluded that petitioners had shown neither that they would be singled out for sterilization nor that China has a pattern or practice of sterilizing a member of a couple that returns with two foreign-born children.
Petitioners appealed to the BIA. In addition to seeking review of the IJ’s ruling, they submitted some 2100 pages of additional documents and requested in the alternative that the BIA remand for the IJ to address their additional evidence.1 By order issued November 10, 2008, the BIA dismissed petitioners’ appeal. The IJ had not specifically discussed petitioners’ claim regarding the “social compensation fee,” but the BIA rejected it. The BIA also denied their request for a remand. Petitioners seek review.2
II.
Our review of the record confirms that the denial of petitioners’ claim for asylum is supported by substantial evidence. The IJ noted that petitioners had not established that their United States born children would “count” for purposes of China’s family planning policy. She also concluded that petitioners’ evidence showed only “isolated incidents” of forced sterilization and that the Chinese government relies primarily on “social compensation fees” to enforce its family planning laws. (IJ Dec. at 11) (citing Congressional report at A.R. 2585). Thus, she concluded that petitioners’ fear of sterilization was not objectively reasonable. The BIA added to this conclusion by relying on the 2005 Country Report and citing its prior decisions in In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), In re J-H-S-, 24 I. & N. Dec. 196 (BIA 2007), In re 24 I. & N. Dec. 185 (BIA 2007), and In re C-C-, 23 I. & N. Dec. 899 (BIA 2006), in which it previously considered almost all of the evidence that petitioners submitted in this case.3 We cannot say that the record compels a contrary conclusion.
*332Petitioners challenge the BIA’s conclusion that their fear of sterilization is not objectively reasonable primarily on two grounds. First, they claim that the IJ and BIA erred in not finding that their United States born children would “count” for Chinese family planning purposes. They argue that the IJ and BIA “ignored” prior BIA precedent holding that children born in the United States are treated no differently than children born in China. Inexplicably, however, the only authority they cite is In re J-W-S-, which, as explained above, holds just the opposite. See 24 I. & N. Dec. at 190-91. They also argue that one of their documents — a document issued by the United States Department of State entitled “Tips for Travelers to the People’s Republic of China” — compels the conclusion that their children will “count” for family planning purposes despite having been born in the United States. The document states that children born in the United States to Chinese citizens “are not recognized as U.S. citizens under Chinese nationality law.” (A.R. 3065.) The IJ, however, explained that it does not address China’s family planning policy, and we agree with her assessment. (IJ Dec. at 11.)
Second, petitioners challenge the BIA’s conclusion that they failed to establish a reasonable likelihood of forcible sterilization on return. They argue that the IJ did not give adequate weight to certain pieces of their evidence, in particular: (1) an affidavit from the female petitioner’s sister stating that family planning officials told her that a Chinese citizen returning with two children born abroad would have to be sterilized; (2) a 2005 report by the United Nations High Commission for Refugees; (3) New York Times articles regarding the prosecution of an anti-family planning advocate; and (4) various CNN.com and AsiaNews articles.4 The IJ expressly discussed many of these exhibits, however, and we cannot say that they compelled a ruling in petitioners’ favor. (IJ Dec. at 11.) The IJ also addressed the affidavit from the wife’s sister, but declined to give it “significant weight” because its author was a “sympathetic family member” and its contents were not corroborated by other objective evidence. (Id.) Petitioners assert that the IJ acted “improperly” in doing so, but cite no authority. We do not believe that the IJ was required to credit the affidavit. In sum, petitioners have not shown that the BIA erred in concluding that their fear of sterilization is not objectively reasonable.
Petitioners also challenge the BIA’s conclusion that they failed to prove that they face persecution in the form of a “social compensation fee.” Imposition of a “severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005). The BIA rejected petitioners’s argument that they have a well-founded fear that any fee would do so here because petitioners “pro*333vided no information regarding their financial status.” (BIA Dec. at 2.)
Petitioners do not claim otherwise, but they cite evidence in the record for the proposition that the fee sometimes exceeds by many factors an individual’s annual income. One of the reports they cite, however, states that “[t]here is wide variation in the amount of social compensation fees” and that any given fee is determined, in part, on the basis of a person’s actual income. (A.R. 869.) We also have explained that whether economic deprivation rises to the level of persecution depends, in part, on the petitioner’s own circumstances. See Li, 400 F.3d at 168 & n. 8. Thus, we cannot say that the record compelled the BIA to find that petitioners face persecution in this regard.
Finally, petitioners argue that the BIA abused its discretion in denying their motion to remand. There is no express statutory authorization for motions to remand, but petitioners’ request was in the nature of a motion to reopen and the BIA treated it as such. See In re Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). The BIA denied petitioners’ motion because they failed to satisfy the standard for reopening (they had not demonstrated that their new evidence was material or previously unavailable or undiscoverable, see 8 C.F.R. § 1003.2(c)(1)), and because their evidence did not establish piima facie eligibility for asylum. Each was a permissible basis to deny the motion. See Zheng v. Att’y Gen., 549 F.3d 260, 265-66 (3d Cir.2008).
As the BIA noted, the vast majority of petitioners’ evidence already had been submitted to the IJ or pre-dated their hearing, and petitioners do not claim that they could not have discovered it previously. Petitioners do not directly challenge that conclusion. Instead, they argue that the BIA’s consideration of this issue constituted improper fact finding on review. They cite no authority for that argument, however, and it is directly contradicted by the applicable regulation, which requires precisely that inquiry. See 8 C.F.R. § 1003.2(c)(1).
Petitioners also argue that remand is required because the BIA did not adequately consider their evidence. See Zheng, 549 F.3d at 271. We disagree. “Consideration of all evidence does not require comment on all evidence.” Thu v. Att’y Gen., 510 F.3d 405, 416 n. 16 (3d Cir.2007); cf. Zheng, 549 F.3d at 271 (BIA’s decision inadequate where if “fail[ed] to offer even a cursory review of the record”). In this case, the BIA expressly addressed much of petitioners’ purportedly new evidence, and it relied on the previous decisions cited above in which it already had considered still more of that evidence. Cf. Zheng, 549 F.3d at 270 n. 7 (reference to earlier decisions insufficient where different evidence was at issue). Its decision was thus not the kind of con-elusory decision we condemned in Zheng. On the contrary, it more closely resembles the decision that we later found sufficient in Liu v. Attorney General, 555 F.3d 145, 149-50 (3d Cir.2009).
The only new evidence cited by petitioners that the BIA did not address expressly and that does not appear to have been at issue in its prior decisions is an April 17, 2007 report by a Department of Homeland investigator stating the result of her investigation into the authenticity of certain documents.5 Petitioners rely on this report’s statement that Chinese parents will be “sanctioned” if they “conducted any birth acts in violation of the family plan*334ning regulations” while outside China. (A.R. 39,1273.) The report, however, does not suggest that the Chinese government has a policy of forcibly sterilizing such parents, or anyone else. To the contrary, it states elsewhere that “no forced IUD insertions and sterilization operations exist.” (Id. at 38, 1272.) Moreover, the report merely summarizes information received from the Chinese government — in this instance, an October 13, 2006 report that itself pre-dates petitioners’ hearing. Thus, the BIA did not abuse its discretion in not mentioning this document or otherwise abuse its discretion in denying petitioners’ motion to remand.
Accordingly, we will deny the petition for review.
. Petitioners submitted two duplicative sets of documents, one in support of the brief for each petitioner. (A.R. 28-1240, 1264-2466.) The only difference between the two sets is that the former contains exhibit tabs that the latter does not. Each set also includes all of the approximately 330 pages of documents that petitioners already had submitted to the IJ.
. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the decisions of both the IJ and the BIA because the BIA both agreed with the IJ's conclusions and provided its own analysis. See Hashmi v. Att'y Gen., 531 F.3d 256, 259 (3d Cir.2008). We review the Agency's factual findings for substantial evidence and must treat them as " ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008) (citations omitted). We review the BIA's denial of petitioners' motion for remand for abuse of discretion. See Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir.2008). Petitioners have not challenged the BIA's denial of their claims for withholding of removal or relief under CAT on review, so we do not consider them. See Wong, 539 F.3d at 237.
.The BIA previously concluded, on the basis of much of the evidence at issue here, that other applicants failed to establish that United States born children “count” for Chinese family planning purposes or that the Chinese government has a policy of forcibly sterilizing those who return to China with a second child bom abroad. See In re S-Y-G-, 24 I. & N. Dec. at 255; In re J-W-S-, 24 I. & N. Dec. at 190-91.
. Petitioners phrase their argument as one that the IJ "ignored” or "failed to acknowledge” certain pieces of this evidence. With the exception of the United Nations report, however, the IJ expressly discussed this evidence, and we thus understand petitioners to argue that the IJ and BIA gave it inadequate weight. To the extent that petitioners argue that the IJ overlooked this evidence, we agree with the Government that they failed to exhaust that argument by raising it before the BIA. (A.R. 9-27.) See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009). We note, however, that the United Nations report does nothing for petitioners' claims: it merely discusses asylum claims based on population control policies in general and does not even mention China. (A.R. 2595-2606.) We further note that, despite petitioners’ assertion that the IJ and BIA did not adequately consider the record in general, the Agency decisions provide adequate indicia that they did. See Abdulai v. Ashcroft, 239 F.3d 542, 549-50 (3d Cir.2001).
. The copies of this report that petitioners submitted appear to be incomplete. (A.R. 30-39, 1264-73.)
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OPINION OF THE COURT
DIAMOND, District Judge.
This case comes before us for the second time in the course of litigation spanning ten years and at least two continents. In Davis International, LLC v. New Start Group Corp. (Davis I), we upheld the District Court’s dismissal of Appellants’ amended complaint based on direct estop-*336pel. See 488 F.3d 597 (3d Cir.2007). We also held that the District Court had jurisdiction to enjoin Appellants from refiling the same claims in another domestic court, and remanded for consideration of whether to grant such injunctive relief. Id. The District Court granted the anti-suit injunction, and denied Appellants’ motion for supplemental briefing. Appellants now appeal those decisions. We will affirm.
I.
Because we write primarily for the Parties, we will recite only the facts necessary for our analysis.
In November 2004, Appellants Davis International, LLC, Holdex, LLC, Foston Management, Ltd., and Omni Trusthouse, Ltd. filed a complaint in the Delaware Court of Chancery, including claims of federal RICO and common-law conversion. Appellants alleged that they were the victims of an international conspiracy to seize control of Kachkanarsky GOK, Russia’s largest vanadium ore plant. Appellants charge that through a combination of physical threats, bribery, and sham financial transactions, their shares in GOK were transferred in August 2000 to Delaware shell companies owned by the conspirators.
Appellants filed separate lawsuits based on these allegations in Russia, England, Belgium, and New York. The Southern District of New York dismissed the New York action on forum non conveniens grounds, holding that Russia was the appropriate forum. See Base Metal Trading S.A. v. Russian Aluminum, 253 F.Supp.2d 681 (S.D.N.Y.2003), aff'd, 98 Fed.Appx. 47 (2d Cir.2004). Although Base Metal included claims and allegations in addition to those in the instant case, the GOK allegations were identical, and all of the Appellants and four of the Appellees here were parties. See Davis I, 488 F.3d at 602.
After Appellants filed their November 2004 Chancery Court complaint, Appellees New Start Group Corp., Venitom Corp., Pan-American Corp., MDM Bank, Ural-Gorno Metallurgical Co., Evraz Holding, Mikhail Chernoi, Oleg Deripaska, Arnold Kislin, Mikhail Nekrich, and Iskander Makmudov removed the action to the District Court. Appellees moved to dismiss and to permanently to enjoin Appellants from filing these same GOK-related claims in any court in the United States. The District Court stayed merits discovery while it considered Appellees’ motions. Displeased with the stay, on April 26, 2005, Appellants filed an amended federal complaint without their state law claims, and re-filed those state claims in a new Chancery Court action. Davis I, 488 F.3d at 605. The Chancery Court also stayed the case. When Appellants moved to lift the stay in August 2006, the Court denied the motion, stating that Appellants’ new action was “an abuse of the removal statute.” (App. 707.)
On March 29, 2006, the District Court dismissed Appellants’ claims, concluding that under the doctrine of direct estoppel, Appellants were bound by the Base Metal Court’s forum non conveniens determination. Davis Int’l v. New Start Group Corp., 2006 WL 839364, 2006 U.S. Dist. LEXIS 13990 (D.Del. Mar. 29, 2006). The District Court also ruled that it did not have the authority to grant the injunctive relief that Appellees had requested:
The court reaches its decision with some regret because it is convinced, as is the Chancery Court, that the plaintiffs are attempting to subvert the removal statute by splitting their claims. The court is also convinced that, absent an injunction, the plaintiffs will continue to file this action and take up the time and resources of another court.
Id. at *14 n. 16, 2006 U.S. Dist. LEXIS 13990, *47 n. 16.
*337In Davis I, we upheld the District Court’s dismissal, reasoning that because the allegations regarding GOK were identical to those in Base Metal, direct estoppel precluded relitigation of the forum non conveniens ruling. Davis I, 488 F.3d at 605. We also determined that the District Court had jurisdiction to issue the anti-suit injunction, and remanded so that the Court could determine if such an injunction was warranted. Id. at 606.
On remand, the District Court granted the anti-suit injunction pursuant to the All Writs Act. See Davis Int’l v. New Start Group, 2009 WL 1321900 at *3, 2009 U.S. Dist. LEXIS 40895 at *9 (D.Del. May 13, 2009); 28 U.S.C. § 1651(a). The District Court also denied Appellants’ request to file a supplemental brief because briefing on the injunction motion was already complete. Id. at *3 n. 4, 2009 U.S. Dist. LEXIS 40895, *10 n. 4.
II.
The District Court had jurisdiction pursuant to the All Writs Act. 28 U.S.C. § 1651(a). We have jurisdiction under 28 U.S.C. § 1291.
III.
We “review[ ] the terms of an injunction for an abuse of discretion, underlying questions of law receive de novo review, and factual determinations are reviewed for clear error.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 363 (3d Cir.2001).
A district court’s decision to deny a motion to supplement or amend a pleading is reviewed for an abuse of discretion. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984).
IV.
A.
Appellants devote the bulk of their brief to argument that the Anti-Injunction Act barred the District Court from granting the anti-suit injunction. 28 U.S.C. § 2283. Although acknowledging the Davis I holding that the District Court had jurisdiction to grant an anti-suit injunction, Appellants nonetheless contend that the Court did not have the authority to issue injunctive relief. This distinction without a difference appears to be little more than an attempt to re-argue Davis I.
The All Writs Act provides a district court with the jurisdiction — and thus, the authority — to enjoin state court proceedings where “necessary or appropriate in aid of [its] jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C. § 1657. The Act is intended to work in concert with the Anti-Injunction Act, which provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283; see also In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133,143 (3d Cir.1998). Accordingly, a district court may not issue an injunction pursuant to the All Writs Act unless one of these three exceptions applies.
In Davis I, we noted that one of these exceptions could well apply: “[e]ourts considering the question have unanimously held that a plaintiffs fraudulent attempt to subvert the removal statute implicates the expressly authorized exception to the Anti-Injunction Act and may warrant the granting of an anti-suit injunction.” 488 F.3d at 605 (citing Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir.1997); Kan. Pub. Employees Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1070-71 (8th Cir.1996); Frith v. Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir.1975)). In light of the findings by *338the District and Chancery Courts — that Appellants’ re-filed state court action was intended to subvert the removal statute— we held that the District Court could grant an anti-suit injunction and remanded for the District Court to consider whether it should grant the injunction. Davis I, 488 F.3d at 606. In these circumstances, we have already rejected Appellants’ instant assertion that the District Court was without “authority” to issue the anti-suit injunction. We will not revisit that ruling.
Appellants vigorously protest the finding that they had attempted to subvert the removal statute. They argue that they had “every right to delete the non-federal claims by amending their Complaint and filing them in state court in the hope of beginning merits discovery which had been stayed in federal courts for four years.” (Appellants’ Br. at 28-29.) They suggest that they did not improperly seek to re-initiate state court litigation in an action removed to federal court; but, rather, had simply begun a second state court case from which they omitted the RICO claim that had been the basis for removal. (Id. at 27-28.)
This is yet another distinction without a difference. Both the District Court and the Chancery Court found that “the [Appellants’] claims filed in the [re-filed] Chancery Court derive from the same set of facts as the [Appellants’] RICO claims.” Davis Int’l, 2009 WL 1321900 at *3, 2009 U.S. Dist. LEXIS 40895 at *9-10. Appellants candidly admit that they re-filed the Chancery Court action “in the hope of beginning merits discovery which had been stayed in federal courts for four years.” This is exactly the kind of abusive tactic that courts have condemned as an attempt to subvert the removal statute. See Kan. Pub. Employees Ret. Sys., 77 F.3d at 1070-71 (plaintiffs subverted removal statute when they re-filed some of their claims in a second state court suit because they were displeased with federal court’s ruling on statute of limitations issue); Frith, 512 F.2d at 901 (plaintiff subverted removal statute when district court denied a motion to remand tort claims and plaintiff re-filed claims in a second state court suit).
In these circumstances, the District Court correctly concluded that Appellants had attempted to subvert the removal statute and so properly enjoined them under the Anti-Injunction Act’s expressly authorized exception.
B.
Appellants also argue that the District Court erroneously denied their motion to submit a supplemental brief on the injunction issue. Again, we do not agree.
After our remand, the District Court set out the following briefing schedule on the injunction issue: Appellees’ opening brief was due on August 13, 2007, Appellants’ answering brief was due September 13, 2007, and Appellees’ reply brief was due September 28, 2007. On October 27, 2008, Appellants moved to submit a supplemental brief summarizing an English Court’s recent findings on the inadequacy of Russia’s legal system. Because “briefing was complete” and the District Court believed it had all the materials it needed to rule on Appellees’ injunction request, it denied Appellants’ motion. Davis Int’l, 2009 WL 1321900 at *3 n. 4, 2009 U.S. Dist. LEXIS 40895 at *10 n. 4. We will not disturb that decision, which was certainly well within the District Court’s discretion. See Murray v. Commercial Union Ins. Co., 782 F.2d 432, 435 (3d Cir.1986); Boileau, 730 F.2d at 938. Cf. Pfeil v. Rogers, 757 F.2d 850, 858 (7 Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986) (“The decision to disregard all material submitted after a reasonable filing deadline is certainly not an abuse of discretion ...”).
*339v.
We will affirm the orders of the District Court enjoining Appellants from pursuing any further litigation on their claims in the United States and denying their motion to file a supplemental brief.
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OPINION
PER CURIAM.
Manjinder Singh petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
*340Because the background of this case is familiar to the parties, we discuss it only briefly here. In November 2000, Singh, a native and citizen of India, entered the United States without valid entry documents. In October 2005, the Department of Homeland Security initiated removal proceedings against him. He conceded re-movability and, in February 2006, applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In support of his application, he argued that he feared returning to India because of persecution he had received on account of his membership in India’s Congress Party.
In July 2006, Singh testified before an Immigration Judge (“IJ”). The IJ concluded that Singh’s testimony lacked credibility, identifying several inconsistencies between the testimony and documents in the record. In light of these inconsistencies, the IJ required corroboration for Singh’s claims. Singh, however, failed to provide any such corroboration.1 As a result, the IJ rejected his claim of past persecution. As for Singh’s claims of future persecution and torture, the IJ stated that even if there was any truth to Singh’s testimony, he could safely return to India because the Congress Party was currently in power. Accordingly, the IJ denied Singh’s application.
In November 2008, the BIA adopted and affirmed the IJ’s decision. The BIA held that the IJ had “considered the ‘totality of the circumstances’ in finding [Singh] not credible.” (Decision of BIA at 1.) The BIA highlighted some of the inconsistencies cited in the IJ’s decision, and noted that the IJ had discussed the various corroborating documentation that Singh had “failed to provide without adequate explanation.” (Id.) The BIA concluded that because the IJ’s “adverse credibility determination was supported by specific, cogent reasons for which [Singh] provided no reasonable explanations, we do not find it to be clearly erroneous.” (Id.) Additionally, the BIA held that the IJ’s “adverse credibility finding also compels denial of his application under the [CAT], since that application is based on identical facts.” (Id.) Singh now seeks review of the BIA’s decision.
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). Where “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
Singh argues that IJ and BIA did not provide “specific, cogent reasons” in support of the adverse credibility determination. This argument is baseless. The IJ’s decision clearly identified and discussed several important inconsistencies between Singh’s testimony and documents in the record. Moreover, in adopting and affirming the IJ’s decision, the BIA reiterated some of these inconsistencies.
Singh next claims that the IJ failed to afford him an opportunity to explain why he did not submit corroborating documentation. This claim is belied by the record. At the hearing before the IJ, Singh’s own attorney asked whether Singh “eonsider[ed] trying to obtain affidavits from witnesses or a letter from the Congress Party, for example.” (Admin. Rec. at 124.) *341Singh responded by conceding, “No, I didn’t. No, I didn’t get it, I wasn’t thinking of it.” (Id.)
Finally, Singh contends that the BIA failed to consider his CAT claim apart from his claims for asylum and withholding of removal. We disagree. In its decision, the BIA specifically addressed Singh’s CAT claim and reasoned that, because that claim relied on the same evidence as his other claims — evidence that lacked credibility — Singh could not prevail on his CAT claim. We find no error in the BIA’s analysis.
In light of the above, we will deny Singh’s petition for review.
. Although Singh was, at the time, living in New Jersey with his sister (who allegedly lived with him in India during the relevant time period), he did not produce her at the hearing or submit an affidavit from her. Moreover, Singh did not submit an affidavit from his father, whom the IJ described as “a very important person in this case.” (Decision of IJ at 13.) Finally, Singh did not provide any documentation from the Congress Party indicating that he was, in fact, a member.
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PER CURIAM.
Anthony Alongi appeals the district court’s denial of the habeas petition he filed pursuant to 28 U.S.C. § 2254. In his petition, Alongi argued that the government failed to fulfill its obligations to disclose exculpatory evidence, that the evidence was not sufficient to support his convictions for murder or felony murder, that the trial court unconstitutionally denied his request to represent himself at trial, and that his trial counsel was constitutionally ineffective. For the reasons that follow, we conclude that the trial court violated Alongi’s Sixth Amendment right by improperly denying his request to represent himself at trial. We will therefore remand this case to the district court with instructions to grant a conditional writ forthwith ordering Alongi’s release unless the State of New Jersey retries him within 90 days of the date of the accompanying order.1
Before we discuss why relief is appropriate here, we think it important to note that the district court did not grant a COA on the issue of whether Alongi had been unconstitutionally denied the right to represent himself. However, after Alongi filed his pro se appeal in this court, we appointed Amicus counsel. The order appointing Amicus provided: “In addition to any other issues amicus curiae wishes to raise, amicus curiae should address the following issue: whether Alongi’s right to self-representation under the Sixth Amendment was violated by the trial court. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Buhl v. Cooksey, 233 F.3d 783 (3d Cir.2000).” Because we specifically requested briefing on this issue, we now nostra sponte broaden the COA to include it.2
*343I. Background
Inasmuch as we are wilting primarily for the parties who are familiar with the history of this case, we need only briefly set forth the factual and procedural history of this appeal.
In 1987, a New Jersey grand jury indicted Joseph Marsieno, Paul Kamienski, and Anthony Alongi for the 1983 murders of Henry (“Nick”) and Barbara DeTournay, a married couple from whom Marsieno and Alongi had arranged to purchase a large amount of cocaine. At trial, the government introduced evidence that Marsieno killed the DeTournays rather than pay for the cocaine. The government also introduced evidence in support of its theory that Kamienski and Alongi acted as Mar-sieno’s accomplices in committing these murders. All three defendants were subsequently convicted of first degree murder, felony murder, and conspiracy to possess cocaine with the intent to distribute.
At trial, Alongi was represented by Jack Russell, a privately-retained attorney. Prior to retaining Russell, Alongi had applied for representation by a public defender. However, the public defender’s office found Alongi ineligible for its services. App. 309. Alongi then arranged for Russell to represent him at trial, although Alongi apparently paid Russell for only a small portion of his services. App. 330-31.
Before jury selection, Alongi changed his mind about wanting Russell as his counsel and so informed Russell. Thereafter, Russell told the trial court: “[a]s a result of a conversation I had yesterday by telephone with Mr. Alongi, it is Mr. Alon-gi’s position and request that I be discharged and Mr. Alongi be permitted to represent himself.” App. 330. The court responded by asking Alongi for the basis of his request. Alongi answered:
For lack of interest in the case, Your Honor. And I have had many motions put in, and I never heard nothing. I don’t see the man. He don’t come — he come visit me, get this together, and mostly lack of interest.
And I can understand Mr. Russell’s lack of interest because of the money situation; but otherwise, I feel I’m the master of my own fate, Your Honor. I’m not going to make nobody else hurt me.
App. 330-31. The trial court next asked Alongi numerous questions about his ability to effectively represent himself. The judge inquired into whether Alongi was a member of the Bar, how far he went in school, what he did for a living, and whether he had previously represented himself in a trial. App. 331-32. Finally, the court asked Russell whether he was prepared to proceed with the trial as planned. App. 332.
After making these inquiries, the court denied Alongi’s request to represent himself. The court explained:
Application for substitution of Mr. Alon-gi as counsel pro se is addressed to the sound discretion of the Trial Court.... 3 I am to consider whether allowing the request could interfere with the orderly trial of the case, whether the defendant is competent to conduct his own defense and to assure himself of a fair trial, consider the gravity of the offense, the *344nature and seriousness of the charges, and whether, in the interest of justice, counsel’s representation is necessary, and whether there appear [to be] any other facts or circumstances which would interfere with a fair and orderly presentation of the case.
I have reviewed the nature of the charges.... They, of course, [are] first degree murder, among other charges. I have been afforded, through counsel, ... some access to the nature and circumstances of the proofs, which are complicated.
I have been given witness lists ... which are extensive and suggest a good deal of preparation is required.
I have had the opportunity to conference with counsel ... I am satisfied that in all respects, Mr. Russell is prepared, has prepared the case and is in a position to provide an effective defense for Mr. Alongi.
I am not satisfied that Mr. Alongi, by reason of his background, and given the nature and circumstances of these charges, is in a position adequately and effectively to assure himself a fair trial.
Under those circumstances, the application for substitution is denied.
App. 332-34.
Alongi argues that the trial court’s actions were a violation of his Sixth Amendment right to represent himself, and that we must therefore vacate his conviction. We agree.
II. The Right to Self-Representation at Trial
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that the Sixth Amendment right to counsel includes the right to proceed without counsel. Although “courts [must] indulge every reasonable presumption” against a waiver of counsel, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (internal citations and quotation marks omitted), once a defendant “clearly and unequivocally” declares her/his desire to proceed pro se, the trial court’s role is quite limited. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. The court must confirm that the accused “knowingly and intelligently” forgoes the substantial benefits of counsel, and it must make the defendant “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” See id. (internal citations and quotation marks omitted). Once it is clear that the defendant’s eyes are open, the court must permit the defendant to represent her/himself, and any additional inquiry into the defendant’s fitness to do so is as irrelevant as it is improper.
The right to proceed without counsel therefore operates quite differently than the right to proceed with counsel. The latter attaches automatically and may be waived only by an affirmative, knowing, and intelligent waiver. The former does not attach unless it is clearly asserted. Although the two rights are opposite sides of the same Sixth Amendment coin, they require very different inquiries.
Alongi argues that we must vacate his conviction because the trial court improperly denied him the right to represent himself. The state makes three arguments in response. The state argues that the claim is not properly before us because Alongi failed to exhaust the claim on direct appeal in the state courts of New Jersey,4 *345that Alongi did not “clearly and unequivocally” assert his right to represent himself, and that the trial court’s actions were not contrary to clearly established federal law. We reject each of these arguments.
A. Alongi Exhausted His Faretta claim
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State[.] ” 28 U.S.C. § 2254(b)(1) (emphasis added). In order for a claim to be exhausted, it must have been fairly presented to the state courts through “one complete round of the State’s established appellate review process.” Nara v. Frank, 488 F.3d 187, 197 (3d Cir.2007) (internal citations and quotation marks omitted). Exhaustion under AEDPA requires that state prisoners give state courts a “fair opportunity to act on their claims.” O’Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To do so, a petitioner need only “describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008) (internal citations and quotation marks omitted). Moreover, pro se submissions are held to less stringent standards than we expect of attorneys trained in the law and legal drafting. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
The state argues that Alongi failed to fairly present his Faretta claim to the New Jersey Appellate Division in the pro se brief he submitted on direct appeal. According to the state, Alongi’s argument in that brief that he was denied his Sixth Amendment right to counsel addressed only the more familiar Sixth Amendment claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and did not fairly present any claim under Faretta.
If Alongi’s pro se brief had discussed only Strickland, we would agree with the state’s argument; however, Alongi’s submission was not restricted to Strickland. Alongi entitled the first point of his pro se brief “Ineffective Assistance of Counsel Through Government Interference.” In this section, Alongi discussed numerous factors which he contended amounted to the denial of counsel under the Sixth Amendment. Alongi did argue that his trial counsel, Russell, was ineffective under the standard set forth by Strickland. *346However, Alongi also argued that the trial court violated his right to counsel by denying his request to proceed pro se. Alongi stated: “[i]n evaluating actual, and or constructive [denial of the right to counsel]. We simply look at the first day of trial. See this appendix, transcript of October 18, 1988, pages 7 through 11. When appellant was denied to travel pro-se, and Mr. Russell was forced on him.” App. 237 (emphasis added). Alongi noted at various other places in his brief that Russell had been forced upon him. He also cited to those pages of the trial transcript in which his request to represent himself was denied, and copies of those pages were attached to his brief.
We therefore conclude that Alongi exhausted his Faretta claim. Alongi presented the operative facts of his claim to the Appellate Division by citing to and providing it with the relevant pages of the trial transcript, and Alongi presented the claim’s legal basis to the Appellate Division by stating that he was denied the right to “travel pro-se” and referencing the Sixth Amendment. We know of no case that would support the proposition that Alon-gi’s efforts, especially in light of his pro se status, were not sufficient to inform the Appellate Division that he was raising a Faretta claim.
B. Alongi Clearly and Unequivocally Asserted His Right
The state secondly argues that Alongi never clearly and unequivocally expressed a desire to represent himself at trial. As noted above, the right to proceed without counsel only attaches when it has been clearly and unequivocally expressed. However, the record of the proceedings before the trial court establishes that Al-ongi did clearly and unequivocally express his desire to proceed pro se.
The thrust of the state’s argument to the contrary is two-fold. It argues that Alongi’s request cannot be read as clear and unequivocal both because Alongi had previously asked to be represented by counsel, and because Alongi’s request was motivated by his dissatisfaction with Russell, his retained counsel. Neither of these arguments are convincing.
First, we do not think that, under these circumstances, the fact that Alongi once desired counsel made his ultimate request to proceed pro se unclear or equivocal. Alongi consistently requested counsel; however, he did not request Russell. Rather, he requested representation by the public defender’s office. That office denied his request, and only then did Alongi retain Russell. After observing Russell’s performance in pre-trial matters, Alongi decided that he would rather represent himself than proceed with Russell as his attorney. Alongi’s desire to do so was then clearly and unequivocally communicated to the court by both Russell and Alongi. Alongi’s request does not become less clear and unequivocal simply because he had previously accepted representation by counsel, or requested it of the public defender’s office. That background is certainly relevant to our analysis but it is not conclusive.
Additionally, the fact that Alongi was motivated to proceed pro se because he was dissatisfied with retained counsel is of only passing consequence, at most, under Faretta. In Buhl v. Cooksey, 233 F.3d 783 (3d Cir.2000), we explained that almost all requests for pro se representation will arise from dissatisfaction with trial counsel. “It is the rare defendant who will ask to proceed pro se even though he/she is thoroughly delighted with counsel’s representation, ability, and preparation.” Id. at 794. Thus, that a defendant wishes to proceed without representation because s/he is dissatisfied with that representation is not usually relevant to whether that *347defendant’s request is clear and unequivocal. In fact, Faretta was also motivated by his concerns about the quality of his representation. Faretta stated that “he did not want to be represented by the public defender because he believed that that office was very loaded down with a heavy case load.” Faretta, 422 U.S. at 807, 95 S.Ct. 2525 (internal quotation marks and punctuation omitted).
This record establishes that here, as in Faretta, Alongfs dissatisfaction with defense counsel did not diminish the fact that he clearly asserted that he wanted to represent himself at trial, rather than proceed with counsel. Alongi’s request, though inartful, was sufficient to convey that desire to the trial judge, and the judge clearly understood that Alongi was asking to forego counsel and proceed pro se. As we stated in Buhl, a “defendant need not recite some talismanic formula hoping to open the eyes and ears of the court to his request to invoke his/her Sixth Amendment rights under Faretta.” 233 F.3d at 792 (internal citations and quotations marks omitted). We accordingly conclude that Alongi did assert his Sixth Amendment right to self-representation.
C. The Trial Court’s Faretta Colloquy Was Contrary to Clearly Established Federal Law
Finally, the state argues that even if Alongi clearly and unequivocally asserted his right to represent himself, the trial court’s actions in denying that request were not contrary to or an unreasonable application of clearly established federal law under AEDPA.5
The state argues that the trial court’s Faretta colloquy was not contrary to or an unreasonable application of clearly established federal law on self-representation. According to the state, the trial court properly assessed in its colloquy the “background, experience, and conduct” of Alongi, factors that a court is required to consider by Johnson. The state maintains that the trial court’s inquiry was not about whether Alongi had the “legal technical knowledge” to represent himself, but rather, whether “his background and experience in consideration of all the circumstances leading up to October 18, 2009 would justify a waiver of counsel.” Appel-lee’s Br. 26. The state argues that the trial court’s decision, in light of these factors, to deny Alongi’s request cannot be contrary to or an unreasonable application of clearly established federal law.
The state’s argument is simply untenable. The trial court’s handling of Alongi’s request to represent himself was woefully inadequate under Faretta. The trial court entirely misstated the applicable standard, and incorrectly asserted that the decision to permit a defendant to proceed pro se fell within the court’s discretion. In deny*348ing Alongi’s request, the trial court never once mentioned Faretta or its sole requirement that the waiver of the right to counsel be knowing and voluntary. In addition, the court did nothing to appraise Alongi of the risks of self representation.
The state is correct that Johnson directs courts to consider a defendant’s “background, experience, and conduct” in their colloquies. 304 U.S. at 464, 58 S.Ct. 1019. Inquiry into these factors, however, must be directed towards determining whether the defendant’s waiver is knowing and voluntary, not towards whether the defendant has “justified” his request, or is capable of representing her/himself. Here, the trial court focused solely on whether Alongi would be a skillful advocate. That is directly contrary to Faretta’s explanation that a defendant’s “technical legal knowledge” is simply not relevant to “an assessment of his knowing exercise of the right to defend himself.” 422 U.S. at 836, 95 S.Ct. 2525.
We are not oblivious to the concerns that motivated the trial court to deny Al-ongi’s request. The trial court’s concern that Alongi receive a fair trial is understandable and would otherwise be commendable. Nevertheless, as Faretta explains, a defendant’s request to waive the right to counsel and proceed pro se cannot be denied because the court believes that the defendant’s choice is ill-advised. Such a choice is almost always ill-advised. Nevertheless, as the Court explained in Faret-ta: “although [a defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law.” 422 U.S. at 834, 95 S.Ct. 2525 (internal citations and quotation marks omitted).
We therefore conclude that the trial court’s failure to conduct an appropriate Faretta colloquy was contrary to clearly established federal law.
III. Conclusion
For reasons we have discussed, the trial court’s denial of Alongi’s Sixth Amendment right to represent himself does not survive scrutiny even under AEDPA’s deferential standard. We will therefore remand this case to the district court with instructions to grant a conditional writ ordering Alongi’s release unless the State of New Jersey retries him within 90 days of the date of the accompanying order.
. Because we grant Alongi’s petition on the basis of the trial court's denial of Alongi’s right to self-representation, we do not consider the other grounds Alongi asserts for relief. In particular, we do not consider his claim of insufficiency of the evidence. That claim has as its predicate our decision last year, setting aside the murder and felony murder convictions of Alongi's co-defendant, Paul Kamien-ski, as based on insufficient evidence. Kamienski v. Hendricks, 332 Fed.Appx. 740 (3d Cir.2009). It necessarily follows, so Alongi contends, that his convictions for the same crimes are, for the same reason, flawed. It is possible that Alongi is correct, but we would note that, in considering Kamienski’s habeas petition, we did not perceive Kamienski’s and Alongi's cases as totally congruent. In Kam-ienski v. Hendricks we observed that "[tjhere was more testimony at trial regarding evidence linking Alongi ... to the crimes.” Id. at 744. However, that observation is not enti-tied to any weight in addressing Alongi’s petition, since, as we noted in Kamienski v. Hendricks, "only Kamienski's appeal is before us.” Id. at 744 n. 9. (In confining our attention to Alongi's Sixth Amendment claim, we are, of course, aware that a reversal based on trial error has consequences differing from the consequences of a reversal based on insufficiency of the evidence. See Vogel v. Pennsylvania, 790 F.2d 368 (3d Cir.1986) (a new trial may follow if the conviction is vacated for trial error, but is barred by double jeopardy if the evidence is found to be insufficient).)
. See Third Circuit L.A.R. 22.1(b) "If the district court grants a certificate of appealability as to only some issues, the court of appeals will not consider uncertified issues unless appellant first seeks, and the court of appeals grants, certification of additional issues.... Notwithstanding the above, the merits panel may expand the certificate of appealability as required in the circumstances of a particular case.” See also Villot v. Varner, 373 F.3d 327, 337 (3d Cir.2004) ("We may not consider *343issues on appeal that are not within the scope of the certificate of appealability.... However, the merits panel may expand the scope of the COA beyond the scope announced by the motions panel.... [T]he merits panel may expand the COA sua sponte.' ”).
. It appears that the trial court confused the abuse of discretion standard which would normally govern a request to substitute counsel, with the standard governing invocation of the constitutional right to proceed pro se, which, as explained below, is not subject to the court's discretion.
. The state also argues that Alongi failed to raise this claim in his habeas petition. This is not an issue of "exhaustion” as the district court is obviously not a state court. Nonetheless, if Alongi did not raise this claim in his petition, we certainly could not consider it. We think it clear, however, that Alongi did raise this claim in his habeas petition.
*345Alongi's habeas petition plainly states that Alongi requests relief based on the denial of his “right to proceed pro se.” App. 70. It continues: "Petitioner asked for counsel to be relieved and for permission to represent himself. Permission was denied.” Id. Although the counsel Alongi retained to draft the brief in support of his habeas petition at the district court level failed to argue this point, Alongi submitted to the district court a lengthy supplemental pro se brief, clarifying that he was also asserting a claim based on the trial court's denial of his right to proceed pro se. App. 184-95. Alongi specifically referred to Faretta at least four times in this supplemental brief, and objected to the denial of his right to proceed pro se at least as many times. Id.
The district court noted in its opinion that it had considered the arguments Alongi made in his supplemental submissions. The district court failed to discern from these submissions, however, that in addition to his claim of ineffective assistance of counsel, Alongi was also raising a claim under Faretta. The district court’s failure to recognize the Faretta claim does not alter the fact that the claim was before the court.
, Under AEDPA, "an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to" clearly established federal law if "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision unreasonably applies clearly established federal law if it correctly identifies the "governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407, 120 S.Ct. 1495.
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OPINION
PER CURIAM.
James Mulvenna, proceeding pro se, appeals from the District Court’s June 10, 2009 order entering default judgment against him in the amount of $256,062.03. For the reasons that follow, we will affirm the District Court’s order.
I.
On February 19, 2009, the United States filed a complaint against Mulvenna seeking to reduce to judgment federal tax assessments. See 26 U.S.C. § 7401. On March 9, 2009, the District Court entered an order, which was mailed to Mulvenna, referring the case to a Magistrate Judge to schedule and conduct a settlement conference.
On April 2nd, upon a motion by the United States, the District Court reissued the summons that was originally issued on February 19th. On April 16th, the summons and complaint were personally served on Mulvenna. The summons directed him to answer the complaint within twenty days of service, and stated that if he failed to do so, “judgment by default will be taken against you for the relief remanded in the complaint.”
Mulvenna’s answer was thus due on May 6, 2009. He did not, however, answer the complaint. Rather, on May 11, 2009, the District Court received a letter from him stating, in its entirety: “I am writing to ask that a Default Judgment not be done in the case 09-CV-00750.” Although Mul-venna sent the United States an identical letter on April 29th, he did not serve it with the letter that he mailed to the District Court.1
On May 26th, twenty days after the pleading deadline had expired, the United States requested that the clerk enter a default against Mulvenna based on his failure to plead or otherwise defend. See Fed.R.Civ.P. 55(a). The United States served the request on Mulvenna via mail. On May 27th, the District Court clerk made an entry on the case docket that Mulvenna was in default for “failure to appear, plead, or otherwise defend.”
Mulvenna did not respond to the United States’ request for default or file a motion *350to set aside the default pursuant to Federal Rule of Civil Procedure 55(c). And on June 10th, the United States filed a request for entry of default judgment for $256,062.08, which it served on Mulvenna via mail. On the same day that the request was filed, the District Court clerk entered default judgment against Mulven-na under Rule 55(b)(1).
Mulvenna now appeals from the June 10th order.
II.
We have jurisdiction under 28 U.S.C. § 1291 and review the entry of default judgment for abuse of discretion. United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir.1984).2 This Court does not favor entry of defaults or default judgments, and we “require doubtful cases to be resolved in favor of the party moving to set aside the default judgment so that cases may be decided on their merits.” Id. (internal quotation and citation omitted).
Federal Rule of Civil Procedure 55(a) provides that “the clerk must enter default” when a defendant has “failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Once the default has occurred, Rule 55(b)(1) allows the clerk to enter default judgment if the plaintiffs claim is for a sum certain and the defendant has failed to appear and is not an infant or an incompetent person. The time between the entry of default and the entry of default judgment provides the defendant with an opportunity to move, pursuant to Rule 55(c), to vacate the default. American Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir.1996). Additionally, if the defendant has appeared in the action Rule 55(b)(2) requires that, among other things, the defendant be provided written notice of the application.
It is clear that Mulvenna was in default as he did not file an answer or otherwise respond to the complaint that was filed against him. He provides no explanation for his lack of responsiveness, claiming only that he “responded within the time limit.” As support for this contention, he points to the letter that he sent to the District Court and has attached a receipt showing that it was mailed on May 8, 2009. Even if this letter was construed as an answer, it was untimely, as his response to the complaint was due on May 6th.
Accordingly, the central question is whether Mulvenna’s letter requesting that “default judgment not be entered” constitutes an “appearance” so as to fall under the ambit of Rule 55(b)(2). We hold that it is not. “Normally, appearance in an action involves some presentation or submission to the court.” Port-Wide Container Co., Inc. v. Interstate Maint. Corp., 440 F.2d 1195, 1196 (3d Cir.1971). However, “not every act by a party that is addressed to the court or relates to the litigation will be deemed an appearance,” and, at the very least, the defendant must show an intent to defend to avoid default. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2686 (3d ed.). Mulvenna’s one-line letter requesting that default not be entered does not indicate an such an intent and thus does not constitute an appearance that triggers Rule 55(b)(2)’s notice requirements. See Bermudez v. Reid, 733 F.2d 18, 22 n. 7 (2d Cir.1984) (“We agree that the single letter ... asking for an extension did not constitute an appearance.”) *351(citing Rutland Transit Co. v. Chicago Tunnel Terminal Co., 233 F.2d 655 (7th Cir.1956)). Further, Mulvenna took no action after receiving notice that default had been entered against him, thereby signaling that he was not going to take the requisite steps to defend the litigation.
Thus, as the United States’ claim was for a sum certain that was detailed in a declaration accompanying the request for default judgment, the clerk properly entered default judgment against Mulvenna under Rule 55(b)(1). We also note that while pro se litigants are afforded various procedural protections, they are not entitled to a general dispensation from the rules of procedure or court-imposed deadlines. Accordingly, the facts here demonstrate that the District Court did not abuse its discretion in entering default judgment against Mulvenna.
For the foregoing reasons, we will affirm the District Court’s June 10, 2009 order.
. The District Court did not enter the May 11th letter on the docket until after this appeal was filed.
. Because Mulvenna does nol appeal from an order refusing to lift or vacate a default, we do not employ the factors articulated in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984). See Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 177 n. 9 (3d Cir.1990).
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