222 U.S. 395 (1912)
ARAN
v.
ZURRINACH.
No. 146.
Supreme Court of United States.
Submitted December 22, 1911.
Decided January 9, 1912.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF PORTO RICO.
Mr. Francis H. Dexter for plaintiffs in error.
Mr. Frederick L. Cornwell and Mr. N.B.K. Pettingill for defendant in error.
*397 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Zurrinach sued Aran and Dexter, the one as principal and the other as surety, on a written contract and recovered judgment, the court having instructed a verdict for the amount claimed, viz., $1,565.72.
When our jurisdiction to review the court below depends upon amount, five thousand dollars is the criterion. We have hence no jurisdiction on this writ unless there be some basis for it other than the amount involved. Act of April 12, 1900, 31 Stat. 77, 85, c. 191. The basis relied upon to establish that we have jurisdiction is the action of the court upon certain motions concerning the qualifications of the jury commissioners and an alleged failure of such commissioners, in making up the panel, to comply with the law of the United States. The proceedings thus relied on are as follows: At the opening of the trial the defendants thus moved:
"Defendants move the Court to quash the panel of the Jury drawn for service at this term for the reason that the said panel was not drawn from a box containing the names of three hundred qualified jurors; and for the further reason that the present panel was not drawn and the names of the jurors constituting the same were not placed therein as required by the Act of Congress,. . . *398 in this, to wit; the Clerk of this Court, John L. Gay, is a member of the Democratic party of the United States, but is not a member of any political party of Porto Rico or of the District, nor is he a registered voter in Porto Rico. The Jury Commissioner of this Court, who together with the said Clerk, placed the names of jurors in the jury box, is not a member of any political party of the United States and is not an American citizen, but is a member of the so-called Republican party of Porto Rico. The principal or majority party in this district is and was at the time the names of jurors were placed in the said box and drawn therefrom by the said Clerk and Jury Commissioner the so-called Unionist party. All to the prejudice of defendants."
On making this motion, the counsel stating that he desired to offer proof, the clerk of the court was called to the stand, but the court refused to hear his testimony and overruled the motion forthwith, stating "that it had personal knowledge of the mode and manner in which the jury was drawn and the law with reference to the manner and regards the same as having been strictly in accordance with the law and does not regard the question in Porto Rico of the politics of the parties as being applicable to the same extent as it would be in the States." The motion was "also denied on the ground that it was not filed within the time required by law and no five days' notice was given to the other party."
It is settled that the provisions of the thirty-fifth section of the act of April 12, 1900, previously referred to, which gives a right to bring to this court from the District Court of Porto Rico by writs of error or appeal all final decisions of such court in all cases where "an act of Congress is brought in question and the right claimed thereunder is denied" does not contemplate that the right to review thus conferred should be confined solely to cases where the validity of an act of Congress is called in question *399 or its interpretation is necessarily involved, but also gives power to review where a right under an act of Congress was asserted and denied in the court below. Crowley v. United States, 194 U.S. 461, 466; Rodriguez v. United States, 198 U.S. 156. In the Crowley case the accused, by a plea in abatement, questioned the competency of certain grand jurors, who participated in the finding of the indictment, on the ground that the grand jury had been selected without any reference to the qualifications prescribed by the local law, when, as the result of an act of Congress, the local law should have been respected and applied. The plea was specific, and set up accurately the particular persons whose qualifications were challenged. Without going into detail in the Rodriguez case, it is true also to say that the legality of both the grand and petty jury was drawn in question because of a failure to apply the law of the United States governing the same.
But neither the principle which the cases referred to maintain nor the reasoning by which they were controlled support the proposition that any and every mere question of irregularity in applying the law of the United States which arises in a case in the court below confers a right to review on this court which otherwise would not exist. Moreover, neither the rule announced in the cases nor the reasoning which controlled them gives support to the further assumption that the right to a review by this court of the whole case, which otherwise would not exist, can be brought about by raising in the court below questions concerning the application or methods of enforcement of the applicable laws of the United States when, from the manner in which they are raised  that is, their generality of statement and the absence of all specification to sustain them  the conclusion is justified that they are of a frivolous character.
Putting out of view the ruling of the court based on the delay in making the motion assailing the capacity of the *400 jury commissioners and the qualifications of the panel which, it is urged, establish the right to review by this court, we are of opinion that the questions raised in the motion, either inherently or because of the manner in which they were raised, come within the propositions just stated and therefore are not controlled by the ruling in the Crowley or Rodriguez case. In the first place, in so far as the motion was addressed to the qualifications of the jury commissioners, it was, on its face, so wanting in merit and wholly frivolous as to afford no support whatever to the contention that the court in overruling it denied a right claimed under an act of Congress. In the second place, that is, as far as the challenge to the panel is concerned, if it be that the concluding sentence of the motion referring to the alleged political opinions of some of the jurors selected by the commissioners was an enumeration of the disqualification relied upon as the basis of the motion to quash the panel, its frivolousness was equally manifest. If, on the other hand, this view be not taken, then the mere general statement in the motion to quash, without any specification whatever of the ground relied upon, renders a like conclusion inevitable.
As the amount involved is not adequate to give jurisdiction, and the alleged claims of right under the act of Congress relied upon for that purpose are inadequate to form the basis of the exertion of jurisdiction, because of their unsubstantial and wholly frivolous character, it results that our order will be,
Writ of error dismissed for want of jurisdiction.


                                                                                Opinions of the United
2005 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

5-25-2005

Knecht v. Shannon
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2330

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Recommended Citation
"Knecht v. Shannon" (2005). 2005 Decisions. Paper 1139.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1139

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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 01-2330

                            MARTIN LOUIS KNECHT,

                                                Appellant

                                          v.

     ROBERT D. SHANNON, SUPERINTENDENT, AT S.C.I. MAHANOY, THE
    DISTRICT ATTORNEY OF THE COUNTY OF CHESTER; THE ATTORNEY
               GENERAL OF THE STATE OF PENNSYLVANIA

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 00-cv-03463)
                   District Judge: Honorable Clarence C. Newcomer

                         Argued October 26, 2004
       Before: NYGAARD, AMBRO, and VAN ANTWERPEN, Circuit Judges.

                                 (Filed: May 25, 2005)

Marsha A. Sajer, Esq. (Argued)
David R. Fine, Esq. (Argued)
Robert A. Lawton, Esq.
Kirkpatrick & Lockhart
240 North Third Street
Payne-Shoemaker Building
Harrisburg, PA 17101
David S. Kwon, Esq.
Thomas C. Weisert, Esq.
Kirkpatrick & Lockhart
One Newark Center, 10 th Floor
Newark, NJ 07102

Eric Tunis, Esq.
Greenberg Traurig
200 Campus Drive
P.O. Box 677
Florham Park, NJ 07932

      Counsel for Appellants

Nicholas J. Casenta, Jr., Esq. (Argued)
Office of the District Attorney
17 North Church Street, Suite 218
Courthouse Annex, 2 nd Floor
West Chester, PA 19380
       Counsel for Appellees

                                            _____

                                 OPINION OF THE COURT

NYGAARD, Circuit Judge.

      Appellant Martin Louis Knecht challenges the District Court’s dismissal of his

habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 1291, and will affirm.

                                             I.

      Knecht was convicted of second degree murder, robbery, theft, and conspiracy in

the Court of Common Pleas of Chester County, Pennsylvania on July 2, 1977. The trial

court sentenced him to life imprisonment.

                                              2
       Having already filed a number of pro se petitions for relief from his conviction and

sentence in Pennsylvania courts, on July 10, 2000, Knecht filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the

Eastern District of Pennsylvania. In the petition, Knecht challenged his conviction on six

grounds. In response, the Chester County District Attorney argued that Knecht did not

fully exhaust these claims in state court and therefore had procedurally defaulted on them.

The District Attorney did not raise the statute of limitations contained in the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) as a defense.

       The reviewing Magistrate Judge recommended to the District Court that five of the

six grounds in Knecht’s petition be rejected as procedurally defaulted. As for the

remaining issue raised in Knecht’s petition, a claim that his confession should have been

suppressed, the Magistrate Judge found that claim to be without merit. In addition, the

Magistrate Judge found Knecht’s petition to be untimely as filed outside the allotted one-

year statute of limitations provided for by AEDPA. The District Court adopted the

Report and Recommendation of the Magistrate Judge and denied the petition. On appeal,

Knecht argues that the District Court erred by raising AEDPA’s statute of limitations sua

sponte, claiming the District Attorney had waived that defense. He also argues that

because he acted in self-defense, he is “actually innocent” of murder, and thus not only is

his procedural default excused, but AEDPA’s statute of limitations is equitably tolled,

making his petition timely.

                                              3
                                             II.

       Knecht’s argument that the District Court erred by raising AEDPA’s statute of

limitations sua sponte after the government failed to do so is precluded by this Court’s

recent decision in Long v. Wilson, 393 F.3d 390 (3d Cir. 2004). In Long, the Court held

that a magistrate judge (and presumably a district court judge by extension) may sua

sponte raise AEDPA’s statute of limitations in section 2254 cases even after the

government has failed to raise timeliness in its answer to the petition. Id. at 403. A

divided en banc panel of this Court recently reaffirmed Long and applied its holding to

section 2255 petitions as well. United States v. Bendolph, 01-2468 (3d Cir. filed May 16,

2005). The District Court, therefore, did not err by raising the statute of limitations sua

sponte.

       Knecht does not argue that the District Court erred in its calculation of the statute

of limitations, and we hold that it did not.1 Thus, unless we accept Knecht’s argument

that he is “actually innocent,” and that equitable tolling is therefore warranted, we must

affirm the dismissal of his petition as untimely. Because Knecht cannot demonstrate

actual innocence, we do not accept his argument.2

       1
          Because we hold that Knecht’s petition was untimely, we need not address whether
his petition is also barred by procedural default.
       2
         This Court has not yet determined whether a showing of actual innocence is grounds
for equitable tolling of AEDPA’s statute of limitations. At least two other Courts of Appeal
to consider that question have held that it is. E.g. Souter v. Jones, 395 F.3d 577, 599 (6th
Cir. 2005) (“[E]quitable tolling of the one-year limitations period based on a credible
showing of actual innocence is appropriate.”); Gibson v. Klinger, 232 F.3d 799, 808 (10th

                                              4
       Knecht argues that, because he acted in self-defense, he is actually innocent of

murder. A habeas petitioner seeking to demonstrate actual innocence faces an “extremely

high burden.” Sweger v. Chesney, 294 F.3d 506, 523–24 (3d Cir. 2002). The petitioner

must come forward with “new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995) (emphasis in original). The

petitioner must then demonstrate that “in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.” Sweger,

294 F.3d at 522 (quotation omitted).

       Knecht cannot meet his burden. His claim of actual innocence lacks the threshold

requirement of “new” evidence. It is based on evidence available to him at trial: his own

testimony and that of his sister. Indeed, a “defendant’s own late-proffered testimony is

not ‘new’ because it was available to him at trial.” Hubbard v. Pinchak, 378 F.3d 333,

340 (3d Cir. 2004). Because he has no new evidence with which to demonstrate that no

reasonable jury would have found him guilty beyond a reasonable doubt, he cannot meet

the extremely high burden required for a showing of actual innocence. Thus, Knecht has

presented no grounds for equitable tolling of AEDPA’s statute of limitations, and we

accordingly find his petition to be untimely.

Cir. 2000) (“Equitable tolling would be appropriate, for example, when a prisoner is actually
innocent.”); contra David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003). As explained, we need
not reach that question here.

                                                5
                                              III.

       The District Court acted within its authority when it raised the timeliness of

Knecht’s habeas petition sua sponte. Because the petition was indeed untimely, and

because there are no grounds for equitable tolling of the statute of limitations, we affirm

the District Court’s dismissal of the petition.


                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1608
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                   John Paul Farias

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                          Submitted: December 17, 2019
                            Filed: December 20, 2019
                                  [Unpublished]
                                 ____________

Before BENTON, KELLY, and GRASZ, Circuit Judges.
                           ____________

PER CURIAM.

       John Farias appeals after he pled guilty to a drug conspiracy offense, and the
district court1 sentenced him to a prison term below the advisory range under the

      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
United States Sentencing Guidelines Manual (“Guidelines”). His counsel has filed
a brief under Anders v. California, 386 U.S. 738 (1967), arguing the district court
erred in applying an enhancement for Farias’s role in the offense.

       We conclude the district court did not clearly err in applying a role
enhancement, as the undisputed facts in the presentence report (“PSR”) established
Farias was a manager or supervisor of the drug conspiracy. See United States v.
Turner, 781 F.3d 374, 393 (8th Cir. 2015) (reviewing district court’s application of
the Guidelines de novo, and its findings of fact for clear error); United States v.
Menteer, 408 F.3d 445, 446 (8th Cir. 2005) (per curiam) (holding failure to object to
facts in PSR constitutes admission of those facts).

      Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm.
                      ______________________________

                                         -2-


668 F.3d 190 (2012)
UNITED STATES of America, Plaintiff-Appellant,
v.
Michael Angelo CAVAZOS, Defendant-Appellee.
No. 11-50094.
United States Court of Appeals, Fifth Circuit.
January 19, 2012.
*191 Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, Austin Maxwell Berry, Asst. U.S. Atty. (argued), Midland, TX, for Plaintiff-Appellant.
Dusty Gallivan (argued), (Court-Appointed), Odessa, TX, for Defendant-Appellee.
Before BENAVIDES and PRADO, Circuit Judges, and ALVAREZ, District Judge.[*]
BENAVIDES, Circuit Judge:
This interlocutory appeal is brought by Plaintiff-Appellant the United States of America (the "Government") to reverse the district court's order suppressing certain incriminating statements made by Defendant-Appellee Michael Angelo Cavazos ("Cavazos"). We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2010, between 5:30 a.m. and 6:00 a.m., Cavazos woke to banging on his door and the shining of flashlights through his window. U.S. Immigration and Custom Enforcement ("ICE") Agents, assisted by U.S. Marshals, Texas Department of Public Safety personnel, and Crane Sheriff's Department personnel, *192 were executing a search warrant on Cavazos's home. The warrant was issued on the belief that Cavazos had been texting sexually explicit material to a minor female. After Cavazos's wife answered the door, approximately fourteen law enforcement personnel entered Cavazos's residence.
Immediately upon entering, government agents ran into Cavazos's bedroom, identified him, and handcuffed him as he was stepping out of bed. Agents then let Cavazos put on pants before taking him to his kitchen. Cavazos's wife and children were taken to the living room. Cavazos remained handcuffed in the kitchen, away from his family, while the entry team cleared and secured the home. ICE Agents Le Andrew Mitchell and Eric Tarango then uncuffed Cavazos and sat with him in the kitchen for approximately five minutes while other officers secured the home.
Once the house was secured, agent Tarango asked Cavazos if there was a private room in which they could speak. Cavazos suggested his son's bedroom. In the bedroom, Cavazos sat on the bed while the two agents sat in two chairs facing him. The agents asked Cavazos if he wanted the door open, but Cavazos said to keep the door closed. Agents Mitchell and Tarango informed Cavazos that this was a "non-custodial interview," that he was free to get something to eat or drink during it, and that he was free to use the bathroom. The agents then began questioning Cavazos without reading him his Miranda rights.
About five minutes into the initial interrogation, Cavazos asked to use the restroom. Agents then searched the restroom for sharp objects and inculpatory evidence. Once cleared, they allowed Cavazos to use the bathroom, but one agent remained outside the door, which was left slightly open so the agent could observe Cavazos. Once finished, Cavazos, followed by an agent, went to the kitchen to wash his hands, as the restroom's sink was broken. Cavazos then returned to his son's bedroom, and the interrogation resumed.
After Cavazos returned to the bedroom, officers interrupted the interrogation several times to obtain clothing to dress Cavazos's children. The officer would ask Cavazos for an article of clothing, which Cavazos would retrieve from the drawers and hand to the officer. Agents Mitchell and Tarango would then continue the questioning.
At some point during the interrogation, Cavazos asked to speak with his brother, who was his supervisor at work. The agents brought Cavazos a phone and allowed him to make the call, instructing Cavazos to hold the phone so that the agents could hear the conversation. Cavazos told his brother that he would be late for work.
Finally, the agents asked Cavazos if he had been "sexting" the victim. Cavazos allegedly admitted that he had, and also described communications with other minor females. After the interrogation was over, Cavazos agreed to write a statement for the agents in his kitchen. While Cavazos began writing the statement, an agent stood in the doorway and watched him.
Cavazos wrote his statement for approximately five minutes before agents Mitchell and Tarango interrupted him. At that point the agents formally arrested Cavazos and read him his Miranda rights. From beginning to end, the interrogation of Cavazos lasted for more than one hour, and the agents' conduct was always amiable and non-threatening. Subsequently, Cavazos was indicted for coercion and enticement of a child, and for transferring obscene material to a minor.
*193 On November 2, 2010, Cavazos moved to suppress the statements he made before he was read his Miranda rights. On January 14, 2011, a suppression hearing was held. On January 19, 2011, Judge Robert A. Junell granted Cavazos's motion, and, on January 26, 2011, issued a memorandum stating the reasons for his order. Thereafter, pursuant to 18 U.S.C. § 3731, the Government filed this interlocutory appeal of the district court's order.

STANDARD OF REVIEW
In an appeal from a district court's ruling on a motion to suppress, this Court reviews factual findings in support of the ruling under the clearly erroneous standard and legal conclusions de novo. United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.1993). The evidence is viewed in the light most favorable to the party who prevailed in the district court. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993).

ANALYSIS
The Government appeals the district court's finding that Cavazos was subjected to a custodial interrogation when he was interrogated by Agents Mitchell and Tarango. Except for some minor issues addressed below, the Government does not challenge the district court's factual findings. Rather, the Government argues that the district court improperly weighed the evidence in finding that Cavazos was subjected to a custodial-interrogation.
"Miranda warnings must be administered prior to `custodial interrogation.'" United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir.1988) (quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). "A suspect is . . . `in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Id. at 596. "Two discrete inquires are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave." J.D.B. v. N. Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). "The reasonable person through whom we view the situation must be neutral to the environment and to the purposes of the investigationthat is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances." Bengivenga, 845 F.2d at 596.
Custody for Miranda purposes requires a greater restraint on freedom than seizure under the Fourth Amendment. Bengivenga, 845 F.2d at 598 (noting "a Fourth Amendment seizure does not necessarily render a person in custody for purposes of Miranda"); see also Berkemer v. McCarty, 468 U.S. 420, 437-38, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (holding Miranda warnings not required during traffic stop; finding brevity, spontaneity, and public-nature of stop, and small number of officers involved, rendered atmosphere insufficiently "police dominated" to be coercive). A determination of whether a defendant is "in custody" for Miranda purposes depends on the "totality of circumstances." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). "[T]he subjective views harbored by either the interrogating officers or the person being questioned are irrelevant." J.D.B., 131 S.Ct. at 2402 (internal quotation marks omitted).
*194 Here, the totality of circumstances, drawn from the record as seen in the light most favorable to Cavazos, indicates Cavazos was in custody at the time he made his incriminating statements. Just after 5:30 a.m., Cavazos was awakened from his bed, identified and handcuffed, while more than a dozen officers entered and searched his home; he was separated from his family and interrogated by two federal agents for at least an hour[1]; he was informed he was free to use the bathroom or get a snack, but followed and monitored when he sought to do so; and he was allowed to make a phone call, but only when holding the phone so that the agents could overhear the conversation.[2] An interrogation under such circumstances, and those others discussed above, would lead a reasonable person to believe that he was not "at liberty to terminate the interrogation and leave," J.D.B., 131 S.Ct. at 2402, notwithstanding the fact that the interrogation occurred in his home and he was informed the interrogation was "non-custodial."
In arguing Miranda warnings were not necessary, the Government relies on the fact that Cavazos was interrogated in his own home, a fact which, taken alone, lessens the likelihood of coercion. See United States v. Fike, 82 F.3d 1315, 1325 (5th Cir.1996), overruled on other grounds by United States v. Brown, 161 F.3d 256 (5th Cir.1998). Miranda, however, does not allow for a simple in-home vs. out-of-home dichotomic analysis. Here, significant facts weigh against the presumption that an in-home interrogation is non-coercive: a large number of officers[3] entered Cavazos's home, without his consent, early in the morning, and Cavazos's subsequent movement about the home was continually monitored. See United States v. Craighead, 539 F.3d 1073, 1085 (9th Cir.2008) (suppressing statements made during inhome interrogation where home was "a police-dominated atmosphere"); United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir.2007) (finding in-home interrogation custodial where, inter alia, search conducted early in the morning by eight officers, and officers exercised physical control over defendant); cf. United States v. Hargrove, 625 F.3d 170, 181 (4th Cir.2010) (finding in-home interrogation non-custodial; noting "[the defendant] was permitted to move about his house"). Similarly, although Cavazos was allowed to speak to his brother on the phone, the agents had him position the phone in such a way that they could listen, indicating that they had sufficient control of Cavazos to require him to do so, and implying Cavazos enjoyed no privacy at that time. Also, Cavazos was immediately located and handcuffed at the start of the search, demonstrating that the agents sought out Cavazos and had physical dominion over him. See Bengivenga, 845 F.2d at 597 n. 16 ("The awareness of the person being questioned by an officer that he has become the `focal point' of the *195 investigation, or that the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom . . . ." (emphasis in original) (citation omitted)). While the handcuffs were removed prior to interrogation, the experience of being singled out and handcuffed would color a reasonable person's perception of the situation and create a reasonable fear that the handcuffs could be reapplied at any time. Cf. Hargrove, 625 F.3d at 179 (noting the defendant was "never placed in handcuffs").
The Government places significant emphasis on the fact that the agents informed Cavazos that the interview was "non-custodial." Such statements, while clearly relevant to a Miranda analysis, are not a "talismanic factor." See Hargrove, 625 F.3d at 180 (quoting Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir. 1985)). They must be analyzed for their effect on a reasonable person's perception, and weighed against opposing facts. Here, several facts act to weaken the agents' statement such that it does not tip the scales of the analysis. First, to a reasonable lay person, the statement that an interview is "non-custodial" is not the equivalent of an assurance that he could "terminate the interrogation and leave." See J.D.B., 131 S.Ct. at 2402; cf. United States v. Perrin, 659 F.3d 718, 721 (8th Cir.2011) (noting defendant informed he "did not have to answer questions"); Hargrove, 625 F.3d at 180 (noting defendant informed he was "free to leave"). Second, uttered in Cavazos's home, the statement would not have the same comforting effect as if the agents had offered to "leave at any time upon request." See Harrell, 894 F.2d at 125 (finding defendant was not in custody during in-home interrogation when, inter alia, he was informed police would leave on his request); see also, Craighead, 539 F.3d at 1082-83, 1088 (finding assurance defendant was "free to leave" had lessened effect when interrogation occurred in defendant's home).[4] This is not to say that a statement by police to a defendant that an interrogation is "non-custodial" does not inform our decision as to the necessity of a Miranda warning when an interrogation is conducted inside the home. Instead, we recognize the "totality of circumstances" Miranda commands, and we note that statements made in different circumstances will have different meanings and differently affect the coercive element against which Miranda seeks to protect.
In engaging in the inquiry required by Miranda, the Court is mindful that no single circumstance is determinative, and we make no categorical determinations. Reviewing, in totality, the unique circumstances presented in the record here, in the light most favorable to Cavazos, the party prevailing below, we find a reasonable person in Cavazos's position would not feel "he or she was at liberty to terminate the interrogation and leave." See J.D.B., 131 S.Ct. at 2402.

CONCLUSION
For the reasons stated above, the order of the district court is AFFIRMED.
NOTES
[*]  District Judge of the Southern District of Texas, sitting by designation.
[1]  "[A] detention of approximately an hour raises considerable suspicion" that an individual has been subjected to a custodial interrogation. United States v. Harrell, 894 F.2d 120, 124 n. 1 (5th Cir. 1990). The Government identifies no evidence in the record to support their contention that Cavazos's incriminating statements were made early in the interrogation.
[2]  The legality of such detention pending the execution of the search warrant, which Cavazos does not dispute here, does not change the Court's inquiry with respect to Miranda.
[3]  While only two officers interrogated Cavazos, the presence of other officers at the location is also relevant to the Court's inquiry. See Fike, 82 F.3d at 1325 (5th Cir.1996) (weighing presence of officers in home during search against fact only two officers interviewed defendant).
[4]  Although the Government asserts Cavazos was informed that "he was free to go," the record provides no clear support for such proposition. Rather, the district court found that the agents' only statement was that the interview was "non-custodial," and the Government fails to demonstrate clear error in such determination.


Dismissed and Memorandum Opinion filed February 15, 2007

Dismissed
and Memorandum Opinion filed February 15, 2007.

In The

Fourteenth Court of
Appeals
____________

NO. 14-06-00964-CV
____________

FARAH SHEIKH, Appellant

V.

ASIM A. QURESHI, Appellee

On Appeal from the
310th District Court
Harris County,
Texas
Trial Court Cause
No. 2005-81455

M E M O R A N D U M  O P I N I O N

This is
an appeal from a judgment signed September 26, 2006.  The notice of appeal was
filed on October 6, 2006.  To date, our records show that appellant has neither
established indigence nor paid the $125.00 appellate filing fee.  See Tex. R. App. P. 5 (requiring payment
of fees in civil cases unless indigent); Tex. R. App. P. 20.1
(listing
requirements for establishing indigence);  see also Order Regarding Fees
Charged in Civil Cases in the Supreme Court and the Courts of Appeals, Misc.
Docket No. 98-9120 (Tex. Jul. 21, 1998) (listing fees in court of appeals); Tex. Gov=t Code Ann. ' 51.207 (Vernon
2005) (same).  On
November 29, 20026, this court notified appellant that the filing fee was past
due.  No response was filed.
The
record before this court reflects that appellant is represented by retained
counsel, and she has paid for preparation of the reporter=s record, which was filed on February
5, 2007.  The clerk=s record was due on January 24, 2007, but it has not been
filed.
On January 11, 2007, this court ordered appellant to pay
the appellate filing fee on or before January 29, 2007.  This court=s order stated
that this appeal was subject to dismissal if the filing fee was not paid in
accordance with our order.  See Tex. R. App. P. 42.3(c) (allowing
involuntary dismissal of case for
failure to comply with court order).  Again, appellant did not respond.
Accordingly,
the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed
February 15, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler
and Edelman.


                                                                                NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT
                                        _____________

                                                 No. 10-2153
                                                _____________

                       JAMES COTTER; WILSON LAND REALTY, LLC,
                                                        Appellant

                                                         v.

                                  NEWARK HOUSING AUTHORITY
                                        _____________

                         On Appeal from the United States District Court
                                    For the District of New Jersey
                                       (Civ. No. 09-cv-02347)
                        District Judge: Honorable Joseph A. Greenaway, Jr.
                                           _____________

                             Submitted under Third Circuit L.A.R. 34.1(a)
                                          January 24, 2011

    BEFORE: FUENTES, CHAGARES, Circuit Judges, and POLLAK, District Judge*

                                       (Opinion Filed: April 6, 2011)
                                             _____________

                                        OPINION OF THE COURT
                                            _____________

*
  Honorable Louis H. Pollak, Judge of the United States District Court for the Eastern District of Pennsylvania,
sitting by designation.
FUENTES, Circuit Judge.

       James Cotter and his company, Wilson Land Realty, LLC, filed suit in District

Court alleging that the Newark Housing Authority ("NHA") is liable for breach of

contract, specific performance, promissory estoppel and equitable estoppel. The District

Court granted NHA's motion to dismiss on the grounds that (1) the allegations did not

show the existence of a valid contract; (2) specific performance is a remedy, not a claim;

(3) there was no allegation of the clear or definite promise necessary to successfully plead

promissory estoppel; and (4) there was no misrepresentation that would bestow contract

rights under a theory of equitable estoppel. Cotter and his company appeal each of these

rulings. For the reasons set forth below, we will affirm the District Court's order.

                                               I.

       We write exclusively for the parties and therefore recount only the facts necessary

to reach our decision.

       In a 2001 settlement between Cotter and his former business partner, Cotter

received a right of first refusal over 30 acres of land owned by NHA in Newark, New

Jersey. In a January 2001 letter, NHA asked Cotter to submit an offer for 22 of those 30

acres. That same letter sketched the outlines of a possible agreement: Cotter would have

to give up his right of first refusal over the other 8 acres, which were then being used to

store demolition materials, and he would have to commit to constructing a building on

the property.

       After an appraisal of the property, NHA sent Cotter a letter on March 15, 2001, in

which it stated that it was willing to sell him the 22 acres "as is" for the price of

                                               2
$2,486,000. That same letter repeated much of what was stated in the January 2001

letter: NHA would give Cotter a "reasonable time period" to conduct due diligence,

Cotter would have to commit to constructing a 40,000 square foot building on the

property, and Cotter "must execute the standard [United States Department of Housing

and Urban Development ("HUD")] Disposition Agreement." (J.A. 22.) The letter also

requested that Cotter give up his right of first refusal over the 8 acres, which were then

leased to a demolition and recycling company.

       In a June 1, 2001 letter, Cotter's counsel responded by providing a written

summary of his understanding of the agreement that had been reached between Cotter

and the NHA: Cotter would have the right to enter the property for testing and surveying

for at least 6 months, he would purchase the property for the appraised price, he would

construct a 40,000 square-foot building, and he would waive his rights over the eight

acres. NHA wrote back on June 4 that it would enter into a contract with Cotter subject

to approval by its Board of Commissioners. The June 4 letter agreed on the price, the

time for diligence, and the building. It also stated that, as a condition to any agreement,

Cotter would have to give up his right of first refusal over the eight acres. In the last

paragraph, the letter asserted that the parties would execute the standard HUD contract

according to HUD regulations.

       Cotter gave up his rights over the eight acres and, in February 2004 NHA's Board

of Commissioners passed a resolution authorizing the sale of the 22 acres to Cotter for

the agreed-upon price. A March 17, 2004 letter from NHA informed Cotter of the

resolution. It also observed that "we had previously negotiated an agreement with

                                              3
[Cotter]." (J.A. 26). The letter enclosed a formal contract of sale and stated that Cotter

must close by May 1, 2004. In an April 13 letter, Cotter stated that he would be ready to

close on that date, but objected to provisions of the formal contract. The closing did not

take place in May 2004. In letters sent in 2005, Cotter complained to NHA that the

debris on the property prevented an environmental assessment. Cotter sent letters to

NHA in 2008 about proceeding to closing. NHA responded that the debris on the

property, and environmental concerns, continued to be problems.

       Cotter filed suit against NHA in 2009. NHA moved to dismiss his Amended

Complaint, and the District Court granted the motion. According to the District Court,

the June 2001, March 2001, March 2004, and April 2004 letters were merely indications

of the parties' bargaining positions, not an agreement. Relying on Morton v. 4 Orchard

Land Trust, 849 A.2d 164 (N.J. 2004), the District Court concluded that the allegations in

the Amended Complaint did not sufficiently allege the existence of an agreement. It then

observed that Cotter's claim for specific performance is not an independent claim, but an

equitable remedy. As to promissory estoppel, the District Court ruled that there were no

allegations of a clear or definite promise, and hence no plausible claim. Finally, the

District Court decided that the Amended Complaint's claim of equitable estoppel was

insufficient because the letters described in the Amended Complaint did not bestow any

contract rights and there was no agreement over the sale.

                                             4
         Cotter filed a timely appeal.1 The District Court had jurisdiction pursuant to 28

U.S.C. § 1332 and we have jurisdiction over the District Court's final order pursuant to

28 U.S.C. § 1291.

                                                         II.

         To plead a breach of contract in New Jersey, a plaintiff must allege that (1) there

was a contract, (2) that contract was breached, (3) the breach resulted in damages, and (4)

the person suing for breach performed his own contractual duties. Nat'l Reprographics,

Inc. v. Strom, 621 F. Supp. 2d 204, 222 (D.N.J. 2009) (interpreting and applying New

Jersey law). The issue framed in this appeal concerns the first element of the claim.

When do negotiations turn into a contract?2

         The answer is only when there is a valid offer and acceptance. Fletcher-Harlee

Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 250 (3d Cir. 2007); 4 Orchard,

849 A.2d at 170. Here there was neither. In its January 2001 letter, NHA stated "we

request that Cotter give us an offer to purchase." (J.A. 22, 45). This was not an offer, but

merely a request for an offer. Id. Similarly, the March 2001 letter from NHA said that

the Authority was "willing" to convey the 22 acres for $2,486,000, yet another signal that

NHA was ready to negotiate. (J.A. 22, 48.). Paragraph 23 of the Amended Complaint
1
  We exercise plenary review over the District Court's order granting the NHA's motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). United States Dep't of Transp. ex rel. Arnold v. CMC
Engineering, 564 F.3d 673, 676 (3d Cir. 2009). This means that we accept the allegations in the Amended
Complaint as true and construe the allegations in the light most favorable to Cotter. Phillips v. County of Allegheny,
515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted). To survive a motion to dismiss, the allegations
must state a claim to relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
2
 As the District Court observed, when documents are integral to a complaint or explicitly relied upon, those
documents can be considered in determining whether the complaint states a plausible claim. In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The letters referenced in the Amended Complaint are such
documents, and, as such, are considered as part of the Court's analysis.

                                                          5
references the June 1 letter Cotter sent to NHA, which states that an agreement had been

reached between the parties. But if this is an allegation that an agreement had been

reached, it is a legal assertion, not a factual one, which the District Court properly

ignored. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). The June 4, 2001 letter from NHA to Cotter stated

that "subject to final approval by the Authority's Board of Commissioners, the Authority

will enter into a contract" that will have certain features. (J.A. 24, 54.) The use of the

future tense makes it clear that, once again, NHA was simply setting the stage for the an

actual agreement. Nowhere does this letter allege an offer or acceptance.

       The March 17, 2004 letter states that the parties had "previously negotiated an

agreement" but, once again, any allegation that an agreement had been reached is a legal

conclusion, not a factual one. (J.A. 9, 65). Later in the letter (and the allegation of the

Amended Complaint incorporating the letter), NHA pitched the following:

       At this time, the NHA is requiring that if your client has a continued
       interest in this property, it must close on or before May 1, 2004. Please
       advise me before the close of business on April 15, 2004 if your client
       desires to acquire this property in its current condition based upon the terms
       and conditions of our proposed agreement.

(J.A. 9, 65). This is the first offer—a "manifestation of willingness to enter into a

bargain, so made as to justify another person in understanding that his assent to that

bargain is invited and will conclude it"— alleged in the Amended Complaint.

Restatement (Second) of Contracts § 24 (1981). Paragraph 34 of the Amended

Complaint then references an April letter in which Cotter stated that he was "ready to

close May 1, 2004" but then pointed to problems with the contract proposed in the March

                                              6
17 letter before drawing attention to a copy of the contract enclosed with "requisite

changes." (J.A. 10, 67). This was a counter-offer, which the next paragraph of the

Amended Complaint states was not executed by NHA. Fletcher-Harlee Corp., 482 F.3d

at 250; Restatement (Second) of Contracts § 59 ("A reply to an offer which purports to

accept it but is conditional on the offeror's assent to terms additional to or different from

those offered is not an acceptance but is a counter-offer.").

       With this factual and legal framework established, we agree with the District

Court that the Amended Complaint failed to state a plausible breach of contract claim

because the Amended Complaint nowhere alleged a valid offer and acceptance. As the

District Court concluded, this makes the instant case similar to 4 Orchard where there

was a course of dealing culminating in a "flurry of letters" but the context made it

apparent that the parties intended to be bound only by a written contract. 849 A.2d 164.

Here, the allegations are that no offer was made until March 17, 2004, that the offer

included a written contract, and that the offer was rejected in favor of a counter-offer.

"No offer and no acceptance means no contract." Fletcher-Harlee, 482 F.3d at 251. The

District Court properly dismissed Cotter's breach of contract claim because there was no

plausible entitlement to relief on such a claim, based on the allegations in the Amended

Complaint.

       The District Court was also correct to point out that, without a contract, there can

be no claim for specific performance, which is an equitable remedy for breach of

contract.

                                              7
       We also agree with the District Court's decision to dismiss the claim for

promissory estoppel. In New Jersey, the elements of that claim are "(1) a clear and

definite promise; (2) made with the expectation that the promisee will rely on it (3)

reasonable reliance; and (4) definite and substantial detriment." Toll Bros., Inc. v. Bd. Of

Chosen Freeholders of County of Burlington, 944 A.2d 1, 19 (N.J. 2008). The problem is

that the only promises alleged in the Amended Complaint are promises to eventually

enter into a contract and a promise in the form of a contract that was rejected. Any

detrimental reliance on such promises was unreasonable.

       Cotter's claim for equitable estoppel requires that he plead "a knowing and

intentional misrepresentation by the party sought to be estopped under circumstances in

which the misrepresentation will probably induce reliance, and reliance by the party

seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 537 A.2d 647,

651 (N.J. 1987) (citing Horsemen's Benevolent & Protective Ass'n v. Atlantic City Racing

Ass'n, 487 A.2d 707 (N.J. 1985)). But here, there is no allegation of a misrepresentation.

The Amended Complaint alleges that NHA would entertain an offer, which it did, that it

would authorize a formal contract, which it did, and that it would send Cotter a formal

contract, which it did.

       This case, like Fletcher-Harlee is a "cautionary tale" of offer and acceptance. 482

F.3d at 249. The appellant in Fletcher-Harlee, just like Cotter here, failed to sufficiently

plead a breach of contract claim and, also just like Cotter here, it asked for permission to

re-plead in a further amended complaint. Id. at 251. We said "no," reaffirming the long-

standing rule that "in ordinary civil litigation it is hardly error for a district court to enter

                                                8
final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff has not

properly requested leave to amend its complaint." Id. at 253. As the court stated in

Fletcher-Harlee, this rule does not impose an undue burden on civil plaintiffs, who have

a ten-day window under Rule 59(e) in which they can file a motion to reopen the

judgment and amend the complaint. Id. Because Cotter's case is not different from

Fletcher-Harlee's in this respect, we find that the District Court committed no error. We

decline his request for permission to re-plead.

                                                  III.

       We will affirm the ruling of the District Court. In short, the Amended Complaint

failed to allege the existence of a contract, a promise upon which reliance would have

been reasonable, or a misrepresentation. The District Court thus properly granted NHA's

motion to dismiss for failure to state a claim.

                                              9
POLLAK, District Judge, dissenting.

       The majority holds that documents exchanged between the parties do not plausibly

support the assertion that an agreement had been reached because whether “an agreement

had been reached . . . is a legal assertion, not a factual one, which the District Court

properly ignored.” Maj. Op. at 6 (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, Twombly and

Iqbal prohibit courts only from crediting a complaint’s “[t]hreadbare recital[] of the

elements of a cause of action, supported by mere conclusory statements.” Iqbal, 129 S.

Ct. at 1949 (citing Twombly, 550 U.S. at 570). Far from simply making a threadbare

recital of the elements of a breach of contract claim, the complaint here referenced

multiple documents in which both parties referred to an “agreement,” and it made factual

recitals of the actions that both parties took in reliance upon that agreement.

       Accordingly, I respectfully dissent.

                                              1