United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge
matter is now before the Court on Defendant
O'Malley's Motion  for Certification of
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and
Fed. R. App. P. 5(a)(3). For the reasons set forth below,
Defendant's Motion  is DENIED.
September 26, 2011, a jury found Duane O'Malley guilty of
five counts of knowingly removing, transporting, and dumping
asbestos-containing insulation in violation of 42 U.S.C.
§ 7413(c)(1). Doc. 68. On July 21, 2012, O'Malley
was sentenced to 120 months of imprisonment, three years of
supervised release, a $15, 000 fine, and $47, 085.70 of
restitution to the EPA. Doc. 121. On appeal, O'Malley
argued that the Government was required to prove that the
Defendant knew the material was regulated
asbestos-containing material. The Seventh Circuit affirmed
the conviction and sentence, finding that the mens
rea standard for a knowing violation of the Clean Air
Act's federal asbestos regulations was satisfied where
the Government proved that O'Malley knowingly worked with
asbestos-containing material. United States v.
O'Malley, 739 F.3d 1001 (7th Cir. 2014), cert.
denied, 135 S.Ct. 411 (2014).
his direct appeal was pending, O'Malley filed a pro
se motion for a new trial under Fed. R. Crim. P. 33.
Doc. 172. His motion was based on three allegations: (1) the
United States bribed codefendant Pinski by secretly agreeing
that Pinski would not be liable for the $47, 000 restitution
to the EPA superfund, in violation of 18 U.S.C. §
201(c)(2); (2) the United States withheld information
regarding Pinski's testimony in a subsequent trial; and
(3) the United States “underhandedly worked in
collusion with O'Malley's retained appellate counsel
Roger Heaton to prevent disclosure of the prosecutorial
misconduct address in ‘Claims One and Two.'”
Doc. 172, at 10-15. On April 3, 2013, O'Malley
supplemented his motion to add a fourth allegation that the
United States failed to disclose Pinski's involvement in
the state civil proceedings related to his federal criminal
charges. Doc. 183. On April 8, 2013, O'Malley again
supplemented his motion, raising a sixth claim, that the
United States improperly rewarded Pinski for breaching his
cooperation agreement. Doc. 186; see also Docs. 188, 190.
17, 2013, O'Malley, with the assistance of counsel, filed
a motion to stay the proceedings on his Rule 33 motion while
counsel investigated whether new evidence existed that would
warrant a new trial. Doc. 195. On June 19, 2013, the Court
issued an opinion denying the motion to stay and advising
O'Malley that his Rule 33 motion would be treated as a
motion under 28 U.S.C. § 2255. Doc. 196. O'Malley
withdrew that motion, but after his counsel withdrew from the
case, he filed another pro se motion for new trial
under Rule 33 on March 31, 2014. Doc. 209. In an opinion
issued on May 28, 2014, the Court denied O'Malley's
motion as it related to his third claim and construed his
first and second claims as a motion under § 2255. Doc.
216. O'Malley appealed that decision and the subsequent
denial of his motion to reconsider on August 1, 2014. Doc.
September 22, 2016, the Seventh Circuit issued a mandate
vacating the Court's ruling and allowing O'Malley to
proceed under Rule 33. United States v.
O'Malley, No. 14-2711 (7th Cir. 2016). On October 6,
2016, the Court reopened O'Malley's Rule 33 motion,
allowed him to file a supplement to the motion, and scheduled
a motion hearing. On October 20, 2016, O'Malley filed a
“Supplemental Rule 33 Pleading Recognizing Structural
Error, Per Se.” Doc. 265. That pleading raised two more
issues: the Court's June 19, 2013 order was
“structural error” that warrants a new trial, and
newly discovered evidence shows that Defendant is actually
innocent. On October 21, 2016, the Court held a status
conference where O'Malley indicated that he had one
additional filing to supplement his Rule 33 pleading. The
Court directed O'Malley to file his supplement to
documents 172, 183, 185, 186, 190, and 265 within 21 days.
After granting two prior extensions of time for O'Malley
to file the supplement, the Court granted O'Malley a
third extension of time on January 3, 2017. That order noted
that O'Malley had filed 6 other motions seeking to
compel, enjoin, requesting discovery, and requesting release,
and informed O'Malley that it would not consider those
motions until he submitted his supplemental filing and the
January 17, 2017, O'Malley filed his fourth motion for
extension of time. Doc. 277. The Court denied
O'Malley's request, noting that he had used the
previous extensions of time to file various other motions.
See Jan. 17, 2017 Text Order (“In sum, [Defendant] has
had almost 90 days to file his Supplement, which was simply
to consolidate all the addenda to his Rule 33 Motion into one
document. Accordingly the Court finds that no future
extensions are warranted and Orders the Government to Respond
to Defendant's Rule 33 Motion  and supporting
Addenda  [185     within 21 days of
this Order.”). On January 31, 2017, while the United
States was preparing its response to the Rule 33 motion,
O'Malley filed a “Motion for Leave to File Belated
Consolidated Rule 33 Motion and Request to Extend Time to Add
Necessary Documents, ” “Defendant's
Supplement to his Pre-Appeal Ruling Rule 33(b)(1) Motion for
New Trial Under # 172, 183, 185, 186, 188, 190, and 265,
” and five “books.” Docs. 278-84. The Court
directed the United States to respond to O'Malley's
motion for leave to file, and the response was docketed on
February 7, 2017. Doc. 285. In its response, the United
States opposed O'Malley's request for leave to file.
Id. (“The petitioner's repeated filings
failed to comply with this Court's previously imposed
time deadlines and many issues raised therein are far outside
the scope of the remand to consider defendant's
previously filed motion for a new trial under Rule 33 of the
Federal Rules of Criminal Procedure.”). The Court
denied O'Malley's motion and ordered the Government
to file its response to the Rule 33 motion by February 15,
2017. On February 15, 2017, the Government filed its response
(Doc. 287) and O'Malley filed a “Motion for
Certification of Interlocutory Appeal Pursuant to 28 U.S.C.
§ 1292(b) and Fed. R. App. P. 5(a)(3).” Doc. 286.
appellate jurisdiction generally depends on the existence of
a decision by the District Court that ‘ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment.'” Coopers &
Lybrand v. Livesay, 437 U.S. 463 (1978); 28 U.S.C.
§ 1291. However, an exception to this general rule
exists when a preliminary or interim disposition qualifies as
a “collateral order, ” i.e., when it “(1)
“conclusively determine[s] the disputed question,
” (2) “resolve[s] an important issue completely
separate from the merits of the action, ” and (3) is
“effectively unreviewable on appeal from a final
judgment.” Sell v. United States, 539 U.S.
166, 176 (2003) (citing Coopers, 437 U.S. at 468).
Federal Rules of Appellate Procedure set forth the procedure
for petitioning for permission to appeal. See Fed. R. App. P.
5. When an appeal is within the court of appeals'
discretion, a party must file a petition for permission to
appeal. Fed. R. App. P. 5(a). In instances where a party may
not petition for appeal unless a district court first enters
an order granting permission to do so, the district court
may, when appropriate, amend its order to include the
required permission. Fed. R. App. P. 5(a)(3).
O'Malley's “Motion for Certification of
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and
Fed. R. App. P. 5(a)(3)” requests that this Court
certify an interlocutory appeal of the Court's text order
of February 8, 2017. See Doc. 286. As recited above, that
order denied O'Malley's request for “Leave to
File Belated Consolidated Rule 33 Motion and Request to
Extend Time to Add Necessary Documents, ” which itself
related to the Court's January 17, 2017 denial of
O'Malley's fourth motion for extension of time to
file his supplement to his Rule 33 Motion. See Doc. 277, 278.
The instant Motion asserts that the Court abused its
discretion in denying O'Malley's motion for leave to
file. O'Malley argues that he should be granted
permission to appeal because the Court's denial of his
motion for leave to file prevents him from introducing newly