Petition for Writ of Certiorari — Duane L. O'Malley, Petitioner v. United States

Supreme Court briefAug 26, 2019

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

Duane O'Malley

— PETITIONER

(Your Name)

vs.

United States of America

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

z71SEVENTH CIRCUIT COURT OF APPEALS

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

DUANE O'MALLEY, P£6 Se

(Your Name)

Duluth Federal Prison Camp

P.0. Box 1000

(Address)

Reg. No. 15035-026

Duluth, MN 55814

(City, State, Zip Code)

(Phone Number)

QUESTIONS PRESENTED

DID THE SEVENTH CIRCUIT COURT OF APPEALS (CA7) VIOLATE CIRCUIT

OPERATING RULE 6(b) WHEN FAILING TO REASSIGN THE "SUCCESSIVE MOTION

APPEAL" PANEL ("C" - below) UNDElR 18-1617 TO THE "ORIGINAL MOTION APPEAL"

UNDER 14-2711 ("B"- below) AND, FAILURE TO ASSIGN THE "ORIGINAL

MOTION APPEAL" ("B"-below) UNDER 14-2711 TO THE "ORIGINAL DIRECT

APPEAL" PANEL UNDER 12-2771?

WAS THE "ORIGINAL DIRECT APPEAL" ("A"- below) UNDER 12-2771 DEPRIVED

OF THE [PIECES] OF NEWLY DISCOVERED EVIDENCE CONTAINED IN THE BONAFIDE

CRIMINAL RULE 33(b)(1)' MOTION FOR NEW TRIAL (DOC. 172), FILED AT A

"CRITICAL STAGE" OF THE "CRIMINAL" PROCEEDINGS "WHILE THE DIRECT APPEAL

REMAINED PENDING" AND GOVERNED UNDER THE CONTROLLING PROVISIONS OF

"CRIMINAL RULE 37", ONLY TO FACE THE IN TERROREM ULTIMATUM OF THE DISTRICT

COURT'S INVOKED "JUDGE-MADE RULE" RECHARACTERIZATION ORDER (DOC. 196)?

CAN A BONAFIDE CRIMINAL RULE 33(b)(1) MOTION FOR NEW TRIAL WITH NEWLY

DISCOVERED EVIDENCE BE RECHARACTERIZED AS THAT OF A "COLLATERAL" §2255

"WHILE THE DIRECT APPEAL REMAINED PENDING"?

DID THE "GENERAL REMAND" ORDER BY THE "ORIGINAL MOTION APPEAL"

("B"- below) PANEL UNDER 14-2711 "LIMIT" THE CLAIMS PETITIONER COULD

RAISE IN THE REMANDED RULE 33 MOTION FOR NEW TRIAL?

DID THE "SUCCESSIVE MOTION APPEAL" ("B"- below) PANEL UNDER 18-1617

ARBITRARILY GRANT REASSIGNED APPOINTED APPELLATE COUNSEL'S "ANDERS

BRIEF" WITHOUT ADDRESSING PETITIONER'S "PRO SE" CLAIM THAT SAID

COUNSEL STRAINED UNDER CONFLICT THROUGH DIAMETRICALLY OPPOSED POSITIONS?

II.

PREVIOUS APPEALS TAKEN

A. ORIGINAL DIRECT:. APPEAL: , 12^2771, 739 F(3D 1001 (1J-8—'14) , Affirmed

PANEL: Diatlfe P. Wddd, Chief Judge

Joel M. Flaum, Circuit Judge

John D. Tinder, Circuit Judge

(APPENDIX "M" )

NOTEWORTHY; "WHILE THE DIRECT APPEAL REMAINED PENDING", defendant filed a

bonafide Criminal Rule 33(b)(1) motion for new trial with

newly discovered evidence (Doc. 172). Whereas, in the criminal

context, criminal Rule 37 is used primarily if not exclusively

for newly discovered evidence motions under Criminal Rule 33

(b)(1). See Notes of Advisory Committee, See also, United States

v. Cronic, 466 U.S. 648, 667 n. 42 (1984). Thus, the underlying

issue.

(i)

B. ORIGINAL MOTION APPEAL: 14-2711, 833 F.3d 810 (8-17-16), Remanded

PANEL: Diane P. Wood, Chief Judge

Richard A. Posner, Circuit Judge

liana Diamond Rovner, Circuit Judge

(APPENDIX "I")

C. SUCCESSIVE MOTION APPEAL: 18-1617,

PANEL: Michael B. Brennan, Circuit Judge

Michael Y. Scudder, Circuit Judge

Amy J. St. Eve, Circuit Judge

(APPENDIX "B")

III.

LIST OF PARTIES

All parties do not appear in the caption of the case on the cover page. A list

of all parties to the proceeding in the court whose judgement is the subject of

this petition include: Michael J. Pinslci and, James Mikrut (codefendant's)

IV.

TABLE OF CONTENTS

I. QUESTIONS PRESENTED...

Page No.

(i)

II. PREVIOUS APPEALS TAKEN

(i)(ii)

III. LIST OF PARTIES.............

(ii)

IV. TABLE OF CONTENTS.........

(ii)

V. INDEX OF APPENDICES (Vol. 1); INDEX OF EXHIBITS (Vol 2); FOOTNOTES..(iii)(iv)(v)

VI. TABLE OF AUTHORITIES

(vi)(vii)

VII. OPINIONS BELOW

(viii)

VIII. JURISDICTION

(viii)

IX. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

(viii)-(xi)

X. STATEMENT OF THE CASE

1-5

A. Sequence of events................

B. Rule 33 Filings......................

C. Rule 37 Operation..................

6 - 12

13, 14

15 - 18

19 - 25

26 - 29

30 - 37

38, 39

"Castro Warning"........... ..

Abandonment...............................

Earlier/Later Enforcements

Judicial Estoppel..................

XI. REASONS FOR GRANTING THE PETITION.

XII. CONCLUSION..................................................

XIII. PROOF OF SERVICE.....................................

39, 40

(ii)

(Under Volume - One)

INDEX OF APPENDICES

Appendix "A": Seventh Circuit Court of Appeals (CA7),I Petition for Rehearing, filed

on 4-8-19 (27-pgs); Order of denial dated 4-30-19 (1—pg); Notice of

issuance of Mandate dated 5-8-19 (2—pgs).

Appendix

CA7 Court; "Successive Motion Appeal", No. 18-1617 , United States v. O'Malley,

754 Fed. Appx. 462; 2019 U.S. App. LEXIS 5899, 2-27-19 (3-pgs).

Appendix "C": CA7 Court, Motion for Panel Assignment pursuant Circuit Operating Rule

6(b), recieved on 4-8-19 and, Order dated 4-11-19 (3—pgs) .

Appendix "D": Defendant's supplemental response to appointed counsel's "Anders Brief",

received 2-1-19 (11—pgs).

Appendix "E": Defendant's response to appointed counsel's "Anders Brief", received

11-5-18 (48-pgs).

Appendix "F": Defendant's request to take Judicial Notice of adjudicated facts,

received 12-17-18. (22-pgs).

Appendix "G": District Court ruling re Criminal Rule 33 motipn for new trial under

United States v. Duane O'Malley, 2018 U.S. Dist. LEXIS 36098, 3-6-17,

(10-pgs)

Appendix "H": District Court, Certification of Interlocutory Appeal, United States

v. O'Malley, 2017 U.S. Dist. LEXIS 29212, 3-2-17 (4-pgs).

Appendix "I": CA7 Court "Original Motion Appeal" remand Order of Rule 33 motion for

new trial. United States v. O'Malley, 833 F.3d 810; 2016 U.S. App. LEXIS

15101, 5-19-16 argued, 8-17-16 decided (7-pgs).

Appendix "J": Supreme Court, Writ of Certiorari, O'Malley v. United States, 135 S.Ct.

411; 190 L.Ed.2d 298; 2014 U.S. LEXIS 7064; 83 U.S.L.W. 3234, No. 14-5993,

decided 10-20-14 (1-pg).

Appendix "K": District Court motion pursuant Rule 51/52(b) filed on 6-20-14 (Doc. 218)

( 23—pgs); District Court "Text Only Order" dated June 24, 2014 (2—pgs )

issued by Successive Chief Judge James E. Shadid.

Appendix "L": District court ruling regarding "Refiled" Rule 33 motion under (Doc. 209)

dated 3-31-14; district court Order under United States v. O'Malley, 2014

U.S. Dist. LEXIS 72680, dated 5-28-14 (5-pgs.).

Appendix "M": CA7 Court, "Original Direct Appeal", No. 12-2771 United States v. O'Malley,

739 F.3d 1001, 2014 U.S. App. LEXIS 380, 11-6-13 argued, 1-8-14 decided

(9-pgs).

Appendix "N": District court ruling regarding "original" Criminal Rule 33(b)(1) motion

under (Doc. 172), United States v. O'Malley, 2013 U.S. Dist. LEXIS 85895,

6-19-13 (Doc.i196)(5-pgs).

(iii)

(Under Volume - Two)

INDEX OF EXHIBITS

EXHIBIT

DATE

DOC. NO.

’A"

6-18-13

[37-2]

"B"

10-29-14

CA7 Order (2 pgs.)

!tpn

10-7-15

CA7 Order (2 pgs.)

’D"

11-9-15

[9]

2255 15-CV-2213 [9@ Pg.15] (1 pg.)

"E'

11-9-15

[9]

2255 15-CV-2213 [9 @ Pg.17]

"p"

2-23-16

16-1272

"G'

"IP

It jll

2-23-16

5-19-16

6-27-16

14-2711

[257]

Ruth's motion to stay (4 pgs.)

(1 Pg.)

CA7 order denying mandamus - consider "staying" (1 pg.)

Text Order "staying" 2255 - 15-CV-2213 (1 pg.)

Dicta transcripts (17 pgs.)

Motion for indicative ruling (2 pgs.)

"J'

6-28-16

'K"

8-17-16

"L'

9-26-16

’M"

9-29-16

[18]

15-CV-2213, 2255 "Judgment in civil case"

"N'

9-30-16

[262]

Expedited request to show cause

"O'

10-6-16

Text order holding [262] moot - Court "aware" (2 pgs.)

npti

10-21-16

Minute entry (2 pgs.)

"Q"

"R,

10-21-16

Teleconference transcript

1-3-17

Text order [172 et. al]

"S"

3-13-17

"T"

3-28=17

Counsel (Karl) letter "to file supplement" (2— pg.)

"U"

7-10-17

Counsel (Karl) letter ("Step-in")

"V"

12-18-17

Transcript

(18 pgs.)

’W"

1-25-18

Transcript

(21 pgs.)

"X'

8-26-13

10-0266-OOA - SDA Complaint

1Y''

2-1-11

(1-Pg)

Origin Fire Protection (OFP) License

"Z"

9-7-04

O'Malley "0SHA Certificate"

NO. 1

5-9-18

US EPA/SDA Letter to Terminate "Stay"

NO. 2

1-30-14

Petition for Panel Rehearing

No. 3

2-18-14 .

Denial of Petition for Rehearing

No. 4

9-8-14

(1-Pg)

Recall of Mandate of Direct (12-2771) (1-pg)

JO. 5

9-12-14

Denail of Recall of Mandate of Direct (12-2771)

NO. 6

2-15-17

Recall of Mandate of direct & R.33' (12-2771/14-2711) (3-pgs)

NO. 7

6-29-18

Text order [257] moot (2 pgs.)

CA7

Final judgment - 14-2711 - CA7 court (1 pg.)

Text order-dismiss 2255 w/o prejudice /// Court

reinstate [209] (1 pg.)

[294]

18-1617

6-page order

(1-pg)

(6 pgs . )

(25-pgs)

(1 Pg-)

(6 pgs.)

d Pg-)

(1-Pg)

(1-pg)

(2-pgs)

(16-pgs)

CA7 Order Granting Appointment of Counsel (2-pgs)

(iv)

(1-pg)

FOOTNOTES

Fn. No.

Description

Pg. No.

Castro v. United States, 540 U.S. 375 (2003)("Judge-Made Rule");

Zelaya v. Sec'y Florida, Dept of Corr. 798 F.3d 1360 (^purpose of

fCaStro warning' is to give defendant opportunity to contest the

recharacterization").........................................................................................

11,1551912$

28,32,33

People ex rel State of Illinois v. Dearborn Mgt. et (09-CH-475)...

Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018).

I.13.17,19,26

Wharton v. Furrer, 620 Fed. Appx. 546,548 (7th Cir.2015)

II,13,17*19,

26,28

United States v. Adams, 746 F.3d 734,744(7th Cir, 2013)....................

Rule 37, See Notes of Advisory Committee; United States v.CCronic,

466 U.S. 648, 667 n. 42 (1984)............................ .........................................

(ix),14

See Pinski Sentence transcript under Doc^O^at Exhibit "B"..............

6,38

VOID

Kitchen v. United States, 227 F.3d 1014, 1017(7th Cir. 2000)..........

10/

Garza v. Idaho, 139 S.Ct. 738;(2019); Roe v. Flores-Ortega, 528

U.S. 470 (2000).................................................................................................

(xi),12,13,17,

19,26,28,29

11/

People of State of Illinois, ex rel v. Stergenics, 2019 U.S. Dist.

LEXIS 38750 (7th Dist.;3vlIvl9)

12/

VOID

13/

Rehaif v. United States, 139 S.Ct. 914 (1-11-19); United States

v.Hayes, 219 U.S. App.cLEXIS 17554 (11th Cir. 6-12-19)..................

(ix),2,8

14/

NESHAP Regulation 40 CFR §61.145 et • 9 al

2,6-8,30,36

15/

See Appendix "K", Doc. 218 at Exhibit "B"

2v 6

16/

OSHA Regulation 29 CFR §1910.1001 et • ) al & 29 CFR §1926.1101,ety..

6.7.30.36.37

17/

OSHA §1926.1101 (k) (4-6) (VWarning Signs")............................................

9.37

18/

OSHA §1926.1101(k)(2)(i),(ii)(A) ("Contr. biddig on work")..........

9,37

19/

See Exhibit "H" at Volume Two at pg. 11................................................

20/

VOID

21/

VOID

22/

Johnson v. United States, 2013 U.S. Dist. LEXIS 56785 (7th Dist.

AUSASEugene Miller, 4-20-13).....................................................................

(x)(28)

Bell v. United States, 116 F.Supp. 3d 900, 905 (7th Dist. 2015);

Evitts v. Lucy, 469 U.S. 387, 399 (1985)..............................................

13,19,27,28

United States v. Quivez, 2019 WL 2273512 (8th Cir.5-29-19)..........

23/

24/

(v)

VI.

TABLE OF AUTHORITIES

PAGE NO:

CITE:

Passim

United States v. Cronic, 466 U.S. 648, 667 n. 42 (1984)...................................

Castro v. United States, 540 U.S. 375 (2003) ; .See also, Zelaya v. Sec1y.

Passim

Florida, Dept, of Corr., 798 F.3d 1360(

)

(xi)

Dunham v. United States, 486 F.3d 931,935 (6th Cir. 2007)......................

(xi)

United States v. Bravata, 305 F.R.D. 97 (E.D.Mich. 2015)........................

1,2

United States v. Hayes, 219 U.S. App. LEXIS 17554(llth Cir. 6-12-19)

United States v. Archer, 531 B.3d 1347, 1352(llth Cir. 2008)................

United States v. Fritts, 841 F.3d 937,942 (11th Cir. 2006)....................

Grissendaner v. Comm'r GA Dept, of Corr., 719 F.3d 1275 (11th Cir. 2015).... 1

People of Illinois v,IStergenics, 2109 U.S. Dist. LEXIS 38750 (7th Dist.

2,6

3-11-19)

(ix) ,2,8

Rehaif v. United States, 139 S.Ct. 914 (1-11-19)..................

United States v. Adams, 746 F.3d 734, 744 (7th Cir. 2013)

United States v. Whitlow, 740 F.3d 433, 438-40 (

)

United States v. White, 406 F.3d 827 (7th Cir. 2005)

United States v. Young, 66 F.3d 830, 835-37 (7th Cir. 1995)

United States v. Polland., 56 F.3d 776, 777-79 (

Messenger v. Anderson, 225 U.S. 436, 444 (1912)........................

Arizona. Vi.California, 103 S.Ct. 1382 (

)

Panama R. Co. v. Napier Shipp. Co, 166 U.S.280, 283-84 (1897).............

Hamilton-Brown Shoe Co. v. Wolf Bros.Co., 240 U.S. 251, 257-59(1916)

United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017)...........................

Passim

Garza v. Idaho, 139 S.Ct. 738 (2019)....................................................................

1,13,17,19,26

Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018)...........................

13,17,19,26,28

Wharton v. Furrer, 620 Fed. Appx. 546, 548 (7th Cir. 2015)....................

13 i 19,27,28

Bell v. United States, 116 F-. Supp. 3d 900, 905 (7th Cir. 2015).........

Evitts v. Lucy, 469 U.S. 387, 399 (1985)...........................................................

United States v. Patrick, 2016 U.S. Dist. LEXIS 59933 (7th Dist. 5-5-16).... 15,16

United States v. Spaulding, 802 F.3d 1110, 1125 n. 20 (10th Cir. 2015)

United States v. Strom, 611 Fed. Appx. 148, 149 (4th Cir. 2015)..............

United States v. Graciani, 61 F.3d 70, 78 (1st Cir. 1975)...........................

United States v. Collins, 898 F.2d 104 (7th Cir. 1990).................................

United States v. Lambert, 603 F.2d 808, 809 (10th Cir. 1979)....................

.16

United States v. Chaney, 538 Fed. Appx 728,729 (7th Cir. 1990)................

United States v. Lewis, 921 F.2d 563, 564 (5th Cir. 1991)...........................

Haines v. Kerner, 404 U.S. 519, 520 (1972)...........................................................

27,34

Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)..................................................

Smith v. Robbins, 528 U.S. 259, 286 (2000).............................. ............................

Penson v. Ohio, 488 U.S. 75, 88-89 (1988).............................................................

United States v. Baltazar, (No. 15-16115) (9th Cir. 7-30-19)....................

(x),28,33

Johnson v. United States, 2013 U.S. Dist. LEXIS 56785 (7th Dist. 2013)

United States v. Quivez, 2019 WL 2273512 (8th Cir. 5-29-19)......................

United States v. Kirklin, 727 F.3d 711, 716 (7th Cir. 2013)......................

Wells v. Cokker, 707 F.3d 756, 760 (7th Cir. 2013)............. ............................

___________

Janusz

v. City of Chicago, 832 F.3d 770, 776 (7th Cir. 2016)....................

Saecker v-. Thorie, 234 F.3d 1010,1014 (7th Cir. 2000)....................................

(vi)

VI.

TABLE OF AUTHORITIES

CITE:

PAGE NO: ,

42 U.S.CC 57413(c)(1)

.(viil),31,35

42 U.S.C. 57413(a)...

.7,31,32,37

42 U.S.C. 57413(a)(4)

,7,31,32,37

42 U.S.C. 7413(b)....

.7,31,32,37

40 C.F.R. 561.145...

(viii),2,6,7,8,30,32,36

40 C.F.R. 561.145(a)

9.32.35.36

' 29 C.F.R. 51910.1001 et. al..................

(ix),6,7,30,36,37

29 C.F.R. 51926.1101 et.,al..................

(ix),6,7,30,36,37

29 C.F.R. 51926.1101(k)(1)(i)..............

29 C.F.R. 51926.1101(k)(5)(i), (ii)..

29 C.F.RT 51926.1101(k)(4-6)................

7.9.32.37

29 C.F.R. 1926.110l(k)(2)(i), (ii)(A)

9.32.37

28 U.S.C. 52255

Passim

Criminal Rule 33(b)(1)........

Passim

Criminal Rule 37....................

Passim

Fed. R. App. P. 12.1(a)....

Circuit Operating Rule 6(b)

(x),(10)

5R1.1..........................................

12,31,35

Fifth Amendment of U.S. Constitution

Passim

Sixth Amendment of U.S. Constitution

Passim

(vxi)

VII.

OPINIONS BELOW

1. The following opinion of the lower court has not been published:

7th Circuit Court; February 27, 2019, 2019 U.S. App. LEXIS 5899, Appendix "B"

2. The following opinions of the lower courts have been published:

7th District Court; March 6, 2018, 2018 U.S. Dist. LEXIS 36098, Appendix "G"

7th District Court; March 2, 2017, 2017 U.S. Dist. LEXIS 29212, Appendix "H"

7th Circuit Court; August 17, 2016, 833 F.3d 810, Appendix "I"

U.S. Supreme Court; October 20, 2014, 135 S.Ct. 411, Appendix "j"

7th District Court; May 28, 2014, 2014 U.S. Dist. LEXIS 72680, Appendix "L"

7th Circuit Court; January 8, 2014, 739 F.3d 1001, Appendix "M"

7th District Court; June 19, 2013, 2013 U.S. Dist. LEXIS 85895, Appendix "N"

VIII.

JURISDICTION

' On 7-23-19, Petitioner sought leave to extend time to file his Petition for

Writ of Certiorari

On May 8, 2019, the Seventh Circuit Court of Appeals ("CA7") issued its "Notice

of Issuance of Mandate" (Appendix "A"). On April 30, 2019, the CA7 Court issued its

order denying defendant-appellant's "Petition for Rehearing en banc". (Appendix "A").

On February 27, 2019, the CA7 Court granted appointed appellate counsel's

"Anders Brief" and "Dismissed" the Appeal. (Appendix "B")

IX.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Statute of conviction under 42 U.S.C. §7413(c)(l) is Unconstitutionally

Vague, as Applied to petitioner in which none of the requisite elements were given to

the Jury or proven beyond a reasonable doubt. Whereas,

the government would conduct

a standardless sweep of the criminal statutory elements and thus, enforced the Statute

in a later inconsistent "Common Law" prosecution.

The predicate National Emission Standards of Hazardous Air Pollutants; "NESHAP —

Work Practice" regulations, 40 C.F.R. §61.145 et

(viii)

• 9

al., were arbitrarily enforced

upon petitioner without the relevant "Status" as an "Owner or Operator" of the

affected facility, nor a facility with an established "Status" of being "Renovated".

The government's success of conviction rested upon a redefined Jury Instruction,

concealed evidence, prosecutorial misconduct and, ineffective assistance of counsel.

The affected facility was in violation of several preempted "OSHA — Workplace"

regulations, 29 C.F.R. § 1910.1001 et

• 9

al, and 29 C.F.R. §1926.1101 et

• 9

al., which

13/

are "Commonly Known" to persons with petitioner's "Status".—

The government's earlier State Civil Statutory enforcement of the same Clean

Air Act ("CAA") offense would "Dismiss" petitioner, without his knowledge or Notice,

from the earlier enforcement knowing petitioner

did not meet the "Status" as either

a "Owner or Operator" of the facility and, that the facility did not establish a

"Renovation" and thus, the later inconsistent federal criminal enforcement Jury Inst

ruction No. 23 claiming petitioner to be a "Operator of a renovation Activity" had

duped the Jury.

In overt acts in furtherance, the government would "Invite Error" for the

..1/ to recharacterize a bonafide Criminal

district court to invoke a "Judge—Made Rule"—

Rule 33(b)(1) motion for a new trial with newly discovered evidence filed at a

critical stage of the criminal proceedings "while the direct appeal remained pending"

to be that of a "Collateral" §2255. The government knew this recharacterization

would

encroach and circumvent the controlling provisions of "Criminal Rule 37" which, in

the Criminal Context, Criminal Rule 37 is used primarily if not exclusively for

newly discovered evidence motion under Criminal Rule 33(b)(1).—^

Accordingly, petitioner's Fifth and Sixth Amendments of the U.S. Constitution

were violated; the criminal Statute of conviction under 42 U.S.C. §7413(c)(l) is

unconstitutionally vague, as applied to petitioner; the operation of Criminal Rule

33(b)(1) was defeated by a "Judge-Made Rule" rendering the controlling provisions

and legislative intent of "Criminal Rule 37" useless.

(ix)

CIRCUIT COURT RULE 6(b)

(a) Remands from the Supreme Court. A case remanded by the Supreme Court to this

court for further proceedings will ordinarily be reassigned to the same panel that heard the case

previously. If a member of that panel was a visiting judge and it is inconvenient for the visitor to

participate further, that judge may be replaced by designation or by lot, as the chief judge directs.

(b) Successive Appeals. Briefs in a subsequent appeal in a case in which the court has heard

an earlier appeal will, be sent to the panel that heard the prior appeal. That panel will decide the

successive appeal on the merits unless there is no overlap in the issues presented. When the

subsequent appeal presorts different issues but involves the same essential, facts as the earlier

appeal, the panel will decide the subsequent appeal unless it concludes that considerations of

judicial economy do not support'retaining the case. If the panel elects not to decide the new

appeal, it will return the case for reassignment at random. If the original panel retains the

successive appeal, it will notify the circuit executive whether oral argument is necessary. If oral

argument is scheduled, any visiting judge will be replaced by a member of this court designated by

lot. Cases that have been heard by the court en banc are outside the scope of this procedure, and

successive appeals will be assigned at random unless the en banc court directs otherwise.

In O'Malley, there is an overlap in the issues presented consisting of a filed

Criminal Rule 33(b)(1) motion for new trial with newly discovered evidence (Doc. 172)

and that of a petition under a "Collateral" §2255. Thus, the former being filed at a

critical stage of the criminal proceedings "while the direct appeal remained pending"

and therefore, governed under the controlling provisions of

Criminal Rule 37

The

latter "collateral" §2255 was not an available remedy at that critical stage where a

22/

"collateral" §2255 cannot be used as a substitute for a direct appeal.—

The district court's

threat' of recharacterization via "Judge-Made Rule"—^ (Doc.

196), at the invitation of the government (Doc. 182), lacked disclosure of an oppor

tunity to "Contest the recharacterization".

(Castro at 384)

In Castro, the government argued that Castro's failure to appeal the 1994 rech

aracterization makes the recharacterization valid as a matter of "Law of the Case"

(as in O'Malley at bar). And, according to the government, since the 1994 recharacterization is valid, the 1997 §2255 motion is Castro s second, not his first. The

Supreme Court disagreed, finding that the point of a warning is to help the pro se

litigant understand not only (1) whether he should withdraw or amend his motion, but

also (2) whether he should "contest the recharacterization", say, on appeal. The lack

(x)

of warning prevents his making an informed judgement as to both. The failure to

appeal simply underscores the practical importance of providing the warning.

In O'Malley, the error is far more egregious as the recharacterization issued

at that critical stage prevented the expansion of the record by counsel's deficient

failure to "contest the recharacterization" and file

the "Notice of Appeal"—^ and,

to consolidate the motion and newly discovered evidence with that of the direct

appeal. Whereas, the [pieces] of new evidence was directly material to both the claims

raised on direct and, would likely change ,the issues on appeal significantly depend

ing on the Rule 33(b)(1) motion outcome. (See Exhibit "A" at 116)

RULE 33- NEW TRIAL

(a) Defendant’s Motion, Upon the defendant’s motion, the court may vacate any judgment

and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the

court may take additional testimony and enter a new judgment.

(b) Time to File.

(]) Newly Discovered. Evidence. Any motion foi a new trial grounded on newly

discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal

is pending, the court may not grant a motion for a new trial until the appellate court remands the

case.

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly

discovered evidence must be filed within 14 days after the verdict or finding of guilty.

LAW AND ANALYSIS REGARDING

CRIMINAL RULE 33(b)(1) AND CRIMINAL RULE 37

As a general rule, "a llmely appeal divests the district ceurt

until the case is remanded by the Court of Appeals." Dunham v. United States, 486 r.od J3 l JJo

until the case

^ ^ ^ R ^ p 33(b)(1} („|f an appea| is pending, the

(6th Cir. 2007) (citation omitted)

new trial until the appellate court remands the case."). Pursuant to

court may not grant a motion for a

the court has three options for resolving Defendant's motion:

Federal Rule of Criminal Procedure 37

(a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to

grant because of an appeal that has been docketed and is pending, the court may:

(1) defer considering the motion

(2) deny the motion, or

(3) slate either that It would grant the motion if the court of appeals remands for that purpose oi

that the motion raises a substantial issue.Fed. R. Crim. P. 37. See also United States v. Bravata,

305 F R D. 97 (E.D. Mich. 2015) ("In the criminal context, the Committee anticipates that

Criminal Rule 37 will be used primarily if not exclusively for newly discovered evidence motions

under Criminal Rule 33(b)(1) ").

(xi)

STATEMENT OF THE CASE

The "Original Motion Appeal" panel under 14-2711 issued a General Remand order

that ruled the district court was to allow O'Malley to proceed under Rule 33 and,

would express no opinion on the underlying merits of O'Malley's Motion.

(See Exhibit

"K"). The order did not "Limit" O'Malley's Rule 33 motion solely to the claims raised

under (Doc. 209). The logic of not limiting the claims was that if the Later Recharac

terization order under (Doc. 216) regarding (Doc. 209) was "Improper',' a fortiori

the Earlier recharacterization order under (Doc. 196) regarding (Doc. 172) under a

greater force of logic was "Prohibited" under the controlling provisions of "Criminal

Rule 37" during that "Critical Stage" of the "Criminal" proceedings "While the direct

appeal remained pending" and thus, "Plain Error".—

In United States v. Hayes, 219 U.S. App. LEXIS 17554 (11th Cir. 6-12-19), the

Circuit Court held that "Under the prior panel precedent rule, a prior panel's holding

is binding on all subsequent panels unless and until it is overruled or undermined to

the point of abrogation by the Supreme Court or by us sitting en banc." United States

v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). There is no exception to the prior

panel precedent rule for overlooked or misinterpretation precedent. United States v.

Fritts, 841 F.3d 937, 942 (11th Cir. 2006). Likewise, a grant of certiorari does not

change the law and is not a basis for relief, because we are required to apply our bind

ing precedent until the Supreme Court issues a decision that changes the law. Grissendaner v. Comm'r, GA. Dept, of Corr * 9 779 F.3d 1275, 1284 (11th Cir. 2015).

Accordingly, the prior panel precedent ruling

by the "Original Motion Appeal"

panel under 14-2711 was binding on the "Successive Motion Appeal" panel under 18—1617

and thus, the successive panel erred in granting re-appointed appellate counsel's

"Anders Brief" that would exclude the former claims under (Doc. 172).

In essence, the "Successive Motion Appeal" panel under 18—1617 was lawfully bound

to uphold the precedent of the prior ruling made by the "Original Motion Appeal" panel

under 14—2711 that allowed petitioner to proceed under Rule 33. Nowhere in the

-1-

"General Remand" order did the panel "Limit" the claims in which petitioner could

raise in the Rule 33. In fact, the district court on remand, would rule upon petit

ioner's request for clarification (Exhibit "N") claiming it was "Aware" of the Seventh

Circuit's remand order ("Exhibit "0") and allowed petitioner to. supplement the Rule 33

(See Exhibits "P", "Q ,

R" and "S")

Furthermore, it was the "Original Direct Appeal" under 12—2771 that would affirm

the "Common Law" conviction of the Clean Air Act (CAA) offense under the Later federal

criminal enforcement that was deprived of the newly discovered evidence (See Exhibit

"H" at. pg. 11) of the Earlier inconsistent

State Civil "Statutory" enforcement of the

,,15/

same offense that had "Dismissed"— petitioner without his knowledge or notice of being

a named defendant and thus, had this Earlier concealed enforcement been known to def

endant's defense at the Later criminal "Common Law" enforcement would have been

challenged as Judicial Estoppel.'

Here, the Earlier State Civil Statutory enforcement

had enforced federal law through its approved State Implementation Plan (SIP) that

ehforces federal law throught its stricter standards and earlier detection of hazardous

air pollutants, which includes a "Permit Program". See United States v. Stergenics,

2019 U.S. Dist LEXIS 38750 (7th dist. 3-11-19).

Petitioner argues he was "Dismissed" from the Earlier State Six Count Complaint

13 /

(unbeknownst to him, and without Notice) , as his "Relevant Status"—under the predicate

National Emission Standards of Hazardous Air Pollutants, "NESHAP — Work Practice"-^^'

regulations, 40 C.F.R/ §61.145 was neither an "Owner or Operator"

of the affected

facility. Moreso, that the affected facility did not maintain the "Relevant Status"

of being "Renovated'! and, the facility "Owner and Operator", being codefendant, Michael

J. Pinski (Pinski) , who was the government's Key Witness and

the government was

"Aware" of Pinski's ongoing criminal activity with the Lacost family regarding Money

Laundering, Unlawful gambling machines (stored in the Pinski' owned and operated

facility), Conversion, and Tax evasion, which was also concealed from defense

counsel. For O'Malley's "Relevant Status',' See Rehaif v. United States, 139 S.Ct. 914

(1-11-19); United States v. Hayes, 219 U.S. App. LEXIS 17554 (11th Cir. 6-12-19).

-2-

GENERAL REMAND ORDER OF CONTROVERSY

On 8-17-16 under the Original Motion Appeal No. 14—2711 (,,B"-Above), the Seventh

Circuit Court of Appeals ("CA7") following Oral Argument on 5-19-16 (See Exhibit "V")

would ibsue a "General Remand" order (Exhibit "K") that is now the topic of contro■ versy regarding the underlying unadjudged claims brought under a bonafide Criminal

Rule 33(b)(1) motion for new trial under (Doc. 172). Here,: the order would direct the

district court to allow defenddnt to proceed under Rule 33 and, expressed no opinion

of the underlying claims of the motion. Pursuant the CA7 order of 10-7U15, the Court

had appoimtiffid counsel of Ms. Vanessa Eisenmann of the Biskupic & Jacobs Law Office.

(See Exhibit "C").

On remand, the district court would initially allow defendant to supplement his

Criminal Rule 33 motion (See Exhibits "0", "P", "Q", "R", and "S") with his previous

raised claims as well as additional claims pursuant the "General Remand" order.

Whereas

the remand orders standard of review lacked any limitation as to what claims

defendant could raise in his criminal rule 33 motion. However, the district court at

the eleventh hour would recant its position through an unexplained reason claiming it

"may have been inartful" (See Exhibit "V" at pg. 17) allowing defendant to supplement

his Rule 33 motion. This ruling ultimately resulted in the "Successive Motion Appeal"

under 18—1617, of which the different successive panel would reassign the same attorney,

Ms. Eisenmann, who defendant proclaimed rendered ineffective assistance during the

"Original Motion Appeal" under 14-2711. Whereas, but for counsel's deficient failure ■

to sort out the parameters of the bonafide Criminal Rule 33(b)(1) motion under (Doc.

172) and, "Law of the Case doctrine" regarding the "Original Direct Appeal" under

12-2771, the General Remand order would contain ambiguity resulting in the district

court's alleged "Inartful" ruling. Thus, affecting defendant's substantive rights;

seriously affecting the fairness, integrity,, and Public reputation of the Judicial

proceedings; and worked a

fundamental miscarriage of justice to a actually innocent

defendant to the "Statute" of conviction enforced under h(;"Common Ldw" conviction

at the Later federal criminal enforcement, of which the new evidence shows the govern-3-

ment "dismissing" defendant under the Earlier State Civil "Statutory" enforcement.

Accordingly, the "Successive Motion Appeal" Panel under 18-1617 would

appoint

counsel, Ms. Vanessa Eisenmann who had represented defendant under the

"Original Motion Appeal" under 14-2711.

Ultimately, counsel would file an "Anders

Brief" (over defendant's objection) and, the successive Paiiel would "Dismiss"

the

Appeal without consideration of defendant's invited Pro Se briefing on 2-2:7-19.

The Pro Se brief would cite appointed counsel ineffective for misleading the "Original

Motion Appeal" Panel (17-2711) on the Standard of Review creating ambiguity to the

"General Remand" order of 8-17-16 as evident by Honorable Chief Judge James E. Shadid's

recantation as being "inartful" in allowing defendant to supplement his Rule 33 as

the Remand order explicitly states to allow defendant to proceed under Rule 33.

As recognized in United States v. Adams

General Remand

746 F. 3d 734, 744 (7th Cir. 2013)^ "a

may leave the parties and the district court to sort out the param-

eters of mandamus and the law of the case doctrine. As a result, this Court has

faced several 'successive appeals' which focused mainly on the scope of the district

court's authority on remand. See e.g. United States v. Whitlow, 740 F.3d 433, at 43840; United States v. Simms, 721 F.3d 850, at 852; United States v. White, 406 F.3d

827 (7th Cir. 2005); United States v. Young, 66 F.3d 830, 835-37 (7th Cir.

1995) ;

United States v. Polland, 56 F.3d 776 at 777-79 ."—"These cases illustrate the waste

of judicial resources sometimes stemming from a General Remand".

Defendant-0'Malley's liberty restrictions).

(Not to mention

'And it is an unnecessary waste given that

Congress has authorized Appellate Court's, pursuant to 28 U.S.C. §2106, to

issue

general or limited remands to the district courts." Young at 66 F.3d at 835.

At bar, the "Original Motion Appeal" Panel under 14-2711 remand order of

g_ 17 — 16 did not explicate its rationale, for the "Law of the Case"

a court previously ' decide [d] upon a Rule of law

decided on by the district court

turns on whether

- which in the O'Malley case was

"Plain Error" recharacterization order (Doc. 196)

that had been "Invited Error" by the government under (Doc. 182).

-4-

Here, the "Law of the Case" would affirm the "Common Law" conviction under the "Original

Direct Appeal" under 12-2771.

The Law of the case doctrine "merely expresses the practice of courts generally

to refuse to reopen what has been decided, not a limit to their powers." Messenger

v. Anderson, 225 U.S. 436, 444 (1912)(citations omitted). A court has the power to

revisit prior decisions of its own or of a coordinate court in any circumstance,

although as -a rule courts should be loathe to do so in the absence of extraordinary

circumstances such as where the initial decision was "clearly erroneous and would

work a manifest injustice.'" Arizomv. California? 103 S.Ct. 1382 (citations omitted).

Thus, even if the Seventh Circuit's decision was law of the case, the Federal Circuit

did not exceed its power in revisiting the jurisdictional issue, and once it concluded

that the prior decision was "clearly wrong

it was obliged to decline jurisdiction.

Most importantly, law of the case cannot bind this Court in reviewing decisions below.

A petition for writ of certiorari can expose the entire case to review. Panama R. Co.

v. Napier Shipping Co-, 166 U.S. 280, 283-284 (1897). Just as a district court's

adherence to law of the case cannot insulate an issue from appellate review, a court

of appeals' adherence to the law of the case cannot insulate an issue from this Court's

review. See Messenger, supra, at 444; Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.,

240 U.S. 251, 257-259 (1916)

Only the En Banc Court or the United States Supreme Court may overrule the

decision of another Panel. United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017).

-5-

A. SEQUENCE OF EVENTS

This case involves the unlawful removal, handling, and disposing of "Regulated"

Asbestos Containing Materials" ("RACM") (heat pipe insulation). Here, the government

would play fast and loose by arbitrarily choosing to enforce the "NESHAF - Work

16/

Practice" regulations —4s opposed to the "OSHA - Workplace" regulations —

in the

Construction Industry as the predicate regulation of the Clean Air Act ("CAA") offense

under an Earlier State Civil "Statutory" theory through its approved State Implementation Plan ("SIP") and "Permit Program". The approved SIP enforces federal law

through its stricter standards and earlier detection of hazardous air pollutants.

See People of the State of Illinois ex rel v. Sterigenics, U.S. LLC, 2019 U.S. Dist.

11/

LEXIS 38750 (7th dist. 3-11-19).—

Unbeknown to petitioner and without any Notice, the State's Civil statutory

enforcement would "dismiss"-^^ petitioner on the eve (10-5-09) of filing the Six Count

complaint with the 21st Judicial Circuit, Kankakee, Illinois on 10-6-09 under Case

No. 09-CH-475. The "filed" complaint was entitled: The People of the State of Illinois

v. Dearborn Management, Inc and, State Bank of Herscher—'

Parties to the "filed" civil complaint under 09-CH-475 involved: Michael J. Pinski

("Pinski") as both "Owner and Operator” of the facility located at 197 S. West Street,

Kankakee, Illinois ("facility"). Here, Pinski Owned and Operated his closely held

company's entitled: Dearborn Management, Inc.

and, MJP Development, Inc.

Bank of Herscher,

("Dearborn") who "Owned" the "facility"

("MJP") who "Operated" the "facility". The defendant, State

("Bank") held the mortgage of the "facility" where Vice-President

of the "Bank", David Rabideau, and Pinski held close relations in multiple business

***/ 7j

dealings .

***/ Newly discovered evidence shows Pinski's 1ater "Extraordinary Cooperation Agreement" pursuant 5k1.1

in the later federal criminal "Common Law" enforcement of the same CAA offense under 10-CR-200,t2

would allegedly lead to the arrest and conviction of David Rabideau for unlawful "Kick-Back" schemes

under Case No. 12-CR-20038 in the Central District of Illinois (See Pinski's Sentencing Transcripts

of 1-14-13 under Case No. 10-CR-20042)., Pi nski ' s extraordinary cooperation agreement pursuant 5k1 .1

would include Pinski's testimony before a federal grand jury on 12-1-09 against the Lacost family

regarding money laundering, unlawful gambling machines, conversion, and tax evasion, of which the

government was "Aware" of Pinski's involvement in same. (See Pinski Sentencing transcript)

-6-

The six count State Civil complaint would provide Pinski with "Notice" of

having violated or being m violation (past and present tense) of the requirements

oar prohibitions of an applicable implementation plan and "Permit Program" pursuant

42 U.S.C. 57413(a). And, the Administrator of the Illinois EPA ("IEPA") would prov

ide Pinski with an "Opportunity to Confer" with the Administrator of. the IEPA whd

is the delegated authority for the U.S. EPA (See Doc. 60, 60-1 under 10-CR-20042)

in accord with 42 U.S.C. 57413(a)(4). Moreso, the Administrator via Civil Injunction

provided Pinski with an "Order" having the status of law, to comply with the require

ments and prohibitions of an applicable implementation plan and "Permit Program"

pursuant 42 U.S.C. 57413(b). None of which petitioner had received. The State would

also arbitrarily choose to enforce the predicate NESHAP

OSHA

regulations as opposed to

regulations, which has stricter standards that would include the "Permit

Program" that Pinski was ultimately required - twice to obtain as both the "Owner

and Operator" of his affected facility under the State "Statutory" enforcement.

In the year 2005, Pinski and his closely held company of "MJP" hired the Geocon

Environment Survey Company ("Geocon") to conduct a "Thorough Inspection" of the

Pinski/Dearborn facility. Here, Pinski/MJP as the "Operator" of the facility was pro

vided a copy of the Geocon 50-plus page phase one environment report ("Report") that

disclosed the presence, location, and quantity of RACM in the Pinski/Dearborn "Work

place" facility components. Specifically, contained in the heat pipe insulation.

The "Report" would further provide Pinski with the appropriate "Permit Application

Forms" and, disclosed the applicable implementation plans to comply with, e.g. the

"OSHA - Workplace" regulations- —4nd, "NESHAP - Work Piactice" regulations —[ amongst

others. Although Pinski being armed with this hazardous information, Pinski as both

"Owner and Operator" deliberately failed to post "Warning Signs" in his affected

Workplace facility pursuant 29 C.F.R. 51926.1101(k)(4—6).

-7-

In the year 2009, on/about July, the Kankakee Fire Prevention Bureau, Captain

Michael Casagrande ("Casagrande") , had referred Pinski to O'Malley's owned and

..operated "Fire Sprinkler Contracting Business" in the "Construction Industry"

entitled: Origin Fire Protection, Inc ("OFP") to "bid" on the "converting" of the

facility's "Existing inoperable wet-style fire sprinkler system to that of a operable

dry-style system". This conversion merely required the installation of a dry-valve and

air compressor in the basement of the facility where the water supply enters the build

ing. As such, Capt. Casagrande dr the.Kankakee Fire Prevention Bureau did not require

either O'Malley or OFP to obtain a "Permit" where no "Renovation" was established as

that term is defined under the jurisdiction of Kankakee. More importantly, Pinski as

both "Owner" and "Operator" of the facility never established with the City of

•13/

Kankakee his facility "Status'1— of undergoing either a "Demolition or Renovation"

as those terms are defined under NESHAP—‘f

On July 23, 2009, O'Malley and his closely held company of OFP had entered into

express written contract with Pinski and his closely held company of "MJP" as the

"Operator" of the Pinski/Dearborn "Owned" facility for the "temporary conversion of

the existing inoperable wet-style fire sprinkler system to that of a operable dry-style

system" pursuant Kankakee Fire Code, violations.

During the previous "walk-through" of the facility with Pinski and his employed

supervisor, James Shultz ("Shultz") and, O'Malley and O'Malley/OFP"employed fire alarm

supervisor, James Mikrut ("Mikrut"), Pinski would "Solicit" O'Malley for some cheaper

laborers to remove the heat pipe

'.'Insulation" so Pinski could determine which of the

heat pipes required removal and replacement so as to get the heating system operating.

As such, the very reasoning for Pinski's hiring of O'Malley/OFP for the "conversion of

the existing inoperable wet-style fire sprinkler system to be that of a operable

dry-style system", was because the facility's heating system was inoperable where

Pinksi/MJP had shut off the water supply to the facility's existing fire sprinkler

system to prevent the static water in the system from freezing in the cold months.

-8-

This shut down of the existing fire sprinkler system

was in violation of N.F.P.A

fire Codes as well as Kankakee Fire Code ordinances that requires occupied facilities

and those facility's containing storage shall maintain an "operable" fire sprinkler

system.

At no time during the previous walk through or, at time O'Malley/OFP entering

into express

written contract as a "Contractor bidding on work" in the "Construction

Industry" with Pinski/MJP as the facility "Operator", was there any posted "Warning

Signs"—^in the Pinslci "Owned" Dearborn facility

and, neither Pinski/MJP or Pinski/

Dearborn as both "Owner" and "Operator" of the facility never disclosed or provided

18/

0O'Malley/OFP as a "Contractor bidding on work"— the Geocon Environmental "Report'.'

The State in an Earlier "Statutory" Civil enforcement of the Clean Air Act ("CAA")

offense under an approved State Implementation Plan '("SIP") and "Permit Program" would:

(1) allow Pinski to stipulate under Count-Two of having failed to conduct a "thorough

inspection" of his facility in violation of the predicate "NESHAP - Work Practice"

regulation under 40 C.F.R. 561.145(a) and, (2) falsely stipulate under Count-One that

Vpinski/Dearborn" as "Owner" of the facility hired O'Malley/OFP as a fire sprinler

contractor knowing "Pinski/MJP"i as the "Operator" hired O'Malley/OFP. This was intent

ionally designed to conceal the fact that Pinski was also the "Operator" of his

facility.and thus, both "Owner and Operator" of his facility who was required to

obtain a "Permit" prior to the commencement of a "Renovation" of his facility.

Pinski's first false stipulation was designed to play fast and loose with the

court(s) that would Later involve the federal criminal "Common Law" enforcement under

case no. 10-CR-20042, by perpetrating a fraud upon the court claiming Pinski had

failed to comply with the predicate NESHAP - Work Practice regulation that requires

"Owners or Operators" to conduct a "thorough inspection" of their facility prior to

-9-

the commencement of a renovation, of which the State's stricter standards under the

approved SIP requirements and "permit program" mandates of Pinski.

Accordingly, prior to the commencement of a renovation of an affected facilty

to undertake a "Work Practice governed under NESHAP", the building HOwnerH.under the

terms of "OSHA" - 29 C.F.R. §1926.1101(k) (1) (i), "often are the only and/or best

sources of informa't'idn concerning them." See also §1926.1101 (k) (5) (i),,

(ii) . Accord-

ingly, Pinski, as the facility "Owner and Operator" is required to maintain a safe

and healthy "workplace" under both the "OSHA" regulations and City of Kankakee Ordin

ances .

Pinski's second false stipulation would fraudulently conceal from the court the

fact that it was "Pinski/MJP" as the "Operator" of the affected facility .who had

hired O'Malley/OFP's licensed fire sprinkler contracting business and not that of

Pinski/Dearborn as the "Ojwn.er"-®f the affected facility. This false stipulation by

Pinski was to conceal the fact that Pinski was both the "Owner" and "Operator" of his

facility who possessed the Geocon environmental "Report".

(Exh."A" of Appendix "K") .

That not one of the government witnesses knew factually the heat pipe insulation

contained "Regulated" Asbestos-Containing Material (RACM) except for the government's

"Key Witness" and codefendant, Michael J. Pinski, (Pinski) who would not only enter

into a guilty plea agreement, but a guilty plea containing an "Extraordinary Cooperat

ion Agreement" pursuant to 5K1.1. Further, Pinski, as both Owner and Operator of his

affected facility containing the RACM, was the only person who possessed the 50-plus

page Phase One Environmental Survey Report (Report) that disclosed the Implementation

Plans and Permit programs the Owners or Operators were to follow and, disclosed the

presence, location, and quantity of RACM in his affected facility. And, the government's witnesses were coached by the prosecution who's circumstantial testimony was

to cover their own backsides and, defense counsel's cross examination was deficient

at best.

-10-

Here, the "Original Direct Appeal" panel under 12—2771 was prevented from the

expanded record of the [pieces] of newly discovered evidence brought under the

bonafide criminal Rule 33(b)(1) motion (Doc. 172) at a "critical stage" of the

"criminal" proceedings "while the direct appeal remained pending" and thus, controlled

under the provisions of "Criminal Rule 37". However, the government would "Invite Err—

.4/

or"-

,,1/ recharactby encouraging the district court to invoke a "Judge-Made Rule"—

erization by issuing a "Castro Warning" (Doc. 182), that would exclude the warning

of allowing the defendant to "contest the recharacterization" pursuant Castro at 384.

The district court's acceptance (Doc. 196) of the government's invitation (Doc.

182) would issue the Castro Warning providing defendant the in terrorem ultimatum

to either withdraw the motion within 21-days or it would be recharacterized as that

of a "Collateral" §2255 (See Doc. 196, also under Appendix "N"). Although the Castro

Warning failed to admonish defendant he could "Contest the Recharacterization" by

appealing the order, that defendant would have yet otherwise pursued as evident by

subsequent proceedings, retained counsel's (Doc. 194) deficient failure to file the

'Notice of Appeal" arises to

the "Presumption of Prejudice" to an ineffective assis

tance of counsel claim at that critical stage of the criminal proceedings that the

Supreme Court recently addressed under Garza v. Idaho, 139 S.Ct. 738 (2019); United

States v. Cronic, 466 U.S. 648, 45*H (1984).

Also, retained counsel's withdrawal of the motion (Doc. 197) was consistent with

the district court's recharacterization order (Doc. 196), that also arises to the

"Presumption of Prejudice" where counsel's deficient performance by forestalling

the criminal proceedings until the direct appeal under 12—2771 affirmed the "Common

Law" conviction of the Clean Air Act (CAA) on 1-8-14, only to "Abandon" defendant

and the Criminal Rule 33(b)(1) motion and its [pieces] of newly discovered evidence

by withdrawing counsel's appearance on 2-11-14 under (Doc. 206). As such, further

supports why Circuit Operating Rule 6(b) should have been followed by assigning the

"Original Motion Appeal" under 14-2711 to the "Original Direct Appeal" panel under

-11-

12-2771, where there was

an overlap in the issues presented involving the same

essential facts. And thus, the outcome of the direct would have been different and

the Common Law enforcement and conviction would not stand as the "Law of the Case".

The error would only manifest when the "Original Motion Appeal" panel under

14-2711 would issue a "General Remand" order containing ambiguity as to whether or

not the remand allowed O'Malley to proceed under a bonafide "Criminal" Rule 33 or

as that of a

"Collateral" Rule 33,

which petitioner argues is an oxymoron that

does not exist. The court's in terrorem ultimatum under (Doc. 196) failed to admonish

that defendant could contest the recharacterization, which defendant would have yet

otherwise pursued. Moreso, retained Rule 33 counsel (Doc. 194) knew or should have

known to contest the recharacterization at that critical stage of the criminal procee

dings by filing a "Notice of Appeal" and to consolidate with that of the direct appeal.

Thus, preserving the [pieces] of newly discovered evidence in the record and review

with that of the direct appeal. Like in Garza

the defendant is not required to show

he would prevail on the underlying issues where counsel's deficient failure to file

the "Notice of Appeal" arises to the "Presumption of Prejudice" to an ineffective

assistance of counsel claim during the critical stage of the criminal proceedings

"while the direct appeal remained pending". See United States v. Cronic, 466 U.S. 648

(1984). Also, counsel's deficient failure to file the "Notice of Appeal" is exacerbated

by counsel's "Abandonment" of the motion and defendant by forestalling the criminal

proceedings after withdrawing the motion under (Doc. 197) only to further withdraw her

appearance on 2-11-14 under (Doc. 206) immediately following the direct appeal (12-2771)

affirming the "Common Law" conviction at the "Law of the Case" on 1-8-14.

-12-

B. RULE 33 FILINGS

** 1. RULE 33 No. 1, filed by trial counsel on 9-27-11 under (Doc. 71) prior to filing

of "Notice of Appeal". On 11-7-11 under (Doc. 75) the court denied the motion. And,

on July 31, 2012 (Doc. 123) defendant filed his "Notice of Appeal" under Appeal No.

12-2771.

** 2. RULE 33(b)(1) No. 2, motion for new trial with newly discovered evidence, filed

Pro Se, on 2-19-13 under (Doc. 172) after filing the "Notice of Appeal" but, "while

the direct appeal remained pending" under 12-2771. Thus, a "critical stage" of the

"criminal" proceedings.

On 2-25-13, the district court deferred the motion for a government response

(See Criminal: Rule 37(a)(1)).

On 3-25-13 under (Doc. 182) the government filed its response encouraging the

„1/ and issue a "Castro Warning" to recharacterize

court to invoke a "Judge-Made Rule"—

the motion to be that of a "Collateral" §2255 arguing defendant's issues to be class

ical claims that could only be addressed under "collateral" §2255.

On 6-17-13, retained counsel filed appearance (Doc. 194) and motion to stay

(Doc. 195).

On 6-19-13 under (Doc. 196), the district court accepted the government's posit

ion and invoked the "Judge-Made Rule"

by issueing the "Castro Warning" that provided

defendant the in terrorem ultimatum to either withdraw the motion within

21-days or

the motion would be recharacterized as that of a "Collateral" §2255.

Over defendant adamant objection to counsel, counsel had withdrawn the motion

on 6-26-13 (Doc. 197) only to forestall the criminal proceedings until the direct

appeal (12—2771) affirmed the "Common Law" conviction as the "Law of the Case" on

1-8-14 and "Abandon" defendant and the criminal Rule 33(b)(1) motion on 2-11-14

under (Doc. 206). Here, counsel's deficient failure to file a "Notice of Appeal"—^

,3/ that was "invited Error"—^by the

contesting the recharacterization as "Plain Error"—

93 /

government and, counsel's ultimate "Abandonment-— of defendant and the Criminal Rule

33(b)(1) motion arises to the "Presumption of Prejudice" to an ineffective assistance

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of counsel claim — See also, United States v. Cronic, 466 U.S. 648 (1984).

'* 3. RULE 33 No. 3, filed on 3-31-14 under (Doc. 209) immediately following counsel's

(Doc. 194) withdrawal of appearance on 2“11-14 under (Doc. 206) where defendant

"refiled" the Rule 33 motion

and related back. Defendant would also attempt to

"Petition for Panel Rehearing or Rehearing En Banc" filed on 1-30-14 (Exhibit No. 2) ,

that the Seventh Circuit Court of Appeals ("CA7") would deny on 2-18-14 (Exhibit No.3)

and, on 9-8-14 attempted to "Recall the Mandate" (Exhibit No. 4), that the CA7 Court

would deny on 9-12-14 (Exhibit No. 5). And, following the remand under the "Original

Motion-Appeal" of 14—2711, defendant motioned the CA7 Court on 2-15-17 again request

ing the "Recall of the Mandate" of "Direct Appeal" (12-2771) ; 739 F.3d 1001 based on

the CA7 Court's recent remand order under Appeal No. 14—2711; 833 F.3d 810 where a

fraud was perpetrated upon the Court. (See Exhibit No. 6). Here, the CA7 Court would

return to defendant his motion with a copy of the former denial order dated 9-12-14

(See Exhibit No. 5) and never issue an order regarding the Motion to "Recall the

Mandate" filed on 2-15-17 (See Exhibit No. 6).

Defendant further sought a Writ of Certiorari with the United States Supreme

Court. (See Appendix "j").

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C. CRIMINAL RULE 37 OPERATION

A similar Seventh District Court procedural ruling under United States v. Patrick,

2016 U.S. Dist

LEXIS 59933 (7th Dist. 5-5-16) pertains to a bonafide Criminal Rule 33

(b)(1) motion for new trial with newly discovered evidence -filed at a

critical stage

"While the direct appeal remained pending".

The court in Patrick, supra, stated:

"Any motion for a new trial grounded on newly discovered

evidence must be filed within 3 years after the verdict or

finding of guilty. If an appeal is pending, the court may

not grant a motion for new trial

until the appellate court

remands the case." See Fed. R. Crim. P. 33(b)(1).

Defendant-Patrick "therefore asks this (district) court to issue an 'indicative

ruling' on his motion". Here, the district court would cite to an "Appellate Rule"

under Fed. R. App. P. 12.1(a) as opposed to the district court's jurisdiction under

"Criminal Rule 37" for a "indicative ruling" which requires:

(a) Relief Pending Appeal. If a timely motion is made for relief

that the court lacks authority to grant because of an appeal

that has been docketed and is pending, the court may:

(1) defer fcbnsidering the motion;

(2) deny the motion; or

(3) state either that it would grant the motion if the

Court of Appeals remands for that purpose or that

the motion raises a substantive issue.

NOTE: It is the "Court's" function under §(a) to choose §(1)—(3) of which a

"Recharacterization" of the motion via "Judge-Made Rule " —^is not an available

provision of the Rule or intent of the Legislature. In O'Malley, the Criminal

Rule 33(b)(1) motion (Doc. 172) raised a "substantial 'Brady* issue" and thus

the [court] was required to comply with §(a)(3) and notify defendant so defen

dant could comply with Fed. R. App. P. 121.1(a) .

(b) Notice to the Court of Appeals. The "movant" must promptly

notify the circuit clerk under Federal Rule of Appellate

Procedure 12.1 [if] the district court

states that it would

grant the motion [or] that the motion raises a substantial

issue.

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The Notes of Advisory Committee states:

"In the criminal context, the committee anticipates that

criminal rule 37 will be used primarily if not exclusively

for newly discovered evidence motions under criminal rule

33(b)(1) (See United States v. Cronic, 466 U.S. 648, 667

n. 42 (1984))."

The Court in Patrick would confirm the government's position that "Rule 33 does

not apply to defendants who plead guilty rather than going to trial." Citing, e.g.

United States v. Spaulding, 802 F.3d 1110, 1125 n. 20 (10th Cir. 2015); United States

v. Strom, 611 Fed. Appx.

148, 149 (4th Cir. 2015); United States v. Graciani, 61 F.3d

70, 78 (1st Cir. 1995)(citing United States v. Collins, 898 F.2d 104, 104 (9th Cir.

1990); United States v. Lambert, 603 F.2d 808, 809 (10th Cir. 1979); Williams v. United

States, 290 F.2d 217,.218 (5th Cir. 1961)); see also United States v. Chaney, 538

Fed. Appx. 728, 729 (7th Cir. 1990)(citing United States v. Lewis, 921 F.2d 563, 564

(5th Cir. 1991)(explaining that Rule 33 is unavailable to defendants who plead guilty)).

Accordingly, the Court in Patrick, supra, in reliance upon the aforestated, held

that "By its terms, Rule 33 applies only to casesiln which a trial has occurred and

the Rule 33 remedy is unavailable; citing, e.g • ) Collins, 898 F.2d at 104. In a

footnote n. 1, defendant Patrick noted that "the Seventh Circuit has not addressed

this issue in a published decision." However, the court stated that "it appears that

every Circuit which has addressed the issue (plea v. trial) has concluded that Rule

33 may not be used by defendants who plead guilty. Here, O'Malley went to trial.

The point O'Malley submits is that the court's order of 5-5-16 states that

defendant Patrick asked the district court to issue a "indicative ruling" on his

motion pursuant Fed. R. App. P. 12.1(a). This, O'Malley argues, is incorrect as

"Criminal Rule 37" is used primarily if not exclusively for newly discovered evidence

motions under

Criminal Rule 33(b)(1). See Notes of Advisory Committee; United States

v. Cronic, 466 U.S. 648, 667 n. 42 (1984). Here, Criminal Rule 37 operation is for

the [oourt] to choose

one of the three provisions

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the Legislature enacted under

Criminal Rule 37; e.g. (1) defer the motion; (2) deny the motion (which allows for

an appeal and consolidation with the pending appeal); or (3) state either that it

would grant the motion if the court of appeals remands for that purpose [or] that

the motion raises a substantial issue.

Here, O'Malley

argues that because his Criminal Rule 33(b)(1) motion was filed

at a "Critical Stage" during the narrow window "while the direct appeal

pending",

remained

that the district court's invoked "Judge—Made Rule"—^ recharacterization

order had encroached and

circumvented the legislative intent of the provisions

outlined under Criminal Rule 37(a)(1-3) in violation of the Seperation of Powers

Clause that had: (1) affected defendant's substantive rights;

the fairness, integrity, and

(2) seriously affected

public reputation of the judicial proceedings and (3)

worked a fundamental miscarriage of justice to a yet otherwise "actually innocent"

person under the Statute of conviction.

Defendant stands on the proposition that the district court's

"Judge-Made Rule" under (Doc. 196) was a "Plain Error"

was

intentionally "Invited Error"

invocation of the

r e c h aract e r iz a t io n:o rder that

]sy fibre prosecution under (Doc. 182), who had pre

vailed on direct appeal (12-2771) by "depriving the newly discovered evidence of

19/

serving any function"—; and, securing a "Common Law" conviction as the "Law of the

Case" on direct.

As opposed to defense counsel (Doc. 194) filing a "Notice of Appeal,v~^^tnat defen

dant would yet otherwise have pursued, as evident from defendant's subsequent

filing, counsel's deficient failure to file a notice of appeal arises to the "Presump

tion of Prejudice" And is in contribution to the district court's "Plain Error"—^

order under (Doc. 196) that was "Invited Error " — under (Doc. 182). Here, counsel

would withdraw the motion (Doc. 197) only to forestall the "Criminal" proceedings under

the direct appeal (12-2771) affirmed the later inconsistent "Common Law" enforcement

and conviction as the "Law of the Case" on 1-8-14, 739 F.3d 1001, and then "Abandon"

both the defendant and the Criminal Rule 33(b)(1) motion on 2-11-14 under (Doc. 206).

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Based on the prosecutions Invited Error (Doc. 182) reasoning regarding defen

dant's Criminal Rule 33(b)(1) motion (Doc. 172) and district court's Plain Error

acceptance (Doc. 196), as well as defense counsel's "Abandonment" (Doc. 209); defen

dant, Pro Se, would reshape his claims and [pieces] of newly discovered

evidence and

"Refile" the Rule 33 motion (Doc. 209) and "relate back" to his initial Criminal

Rule 33(b)(1) motion (Doc. 172) only to;face the prosecution's successive invited

error under (Doc. 212) and the district court's successive invoked "Judge-Made Rule"

recharacterization order (Doc. 216). However, this time defendant filed a motion

pursuant Rule 51/52(b) that successive Chief Judge James E. Shadid would construe as

a reconsideration request, and in a June 24, 2014 text only order, affirm predecessor

Chief Judge Michael P. McCuskey's previous recharacterization order under (Doc. 216).

Defendant-0'Malley appealed under 14-2711 and the Court on 10-29-14 would "Limit" the

appeal to the purported "Reconsideration Motion" (i.e. Doc. 218) (See Exhibit "B").

However, on 10-7-15, the Seventh Circuit Court of Appeals ("CA7") would, inter alia,

vacate the 10-29-14 order and "All Prior Decisions" (See Exhibit "C").

Appendix "K".

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