In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2711
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DUANE L. O’MALLEY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 10‐cr‐20042‐002 — James E. Shadid, Chief Judge.
____________________
ARGUED MAY 19, 2016 — DECIDED AUGUST 17, 2016
____________________
Before WOOD, Chief Judge, and POSNER and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. Duane “Butch” O’Malley is
serving ten years in prison for violating the Clean Air Act by
improperly removing and disposing of insulation containing
regulated asbestos. See 42 U.S.C. § 7413(c)(1); 40 C.F.R.
§§ 61.145, 61.149, 61.150, 61.154. After we upheld his
convictions on direct appeal, United States v. O’Malley,
739 F.3d 1001 (7th Cir. 2014), O’Malley filed in the district
2 No. 14‐2711
court what he dubbed a motion under Federal Rule of
Criminal Procedure 33(b)(1) for a new trial based on newly
discovered evidence. That rule authorizes a district court to
grant a timely request for a new trial “if the interest of justice
so requires.” FED. R. CRIM. P. 33(a). The district court
concluded that O’Malley’s submission contains
constitutional theories that, the court reasoned, are
incompatible with Rule 33 and cognizable only under
28 U.S.C. § 2255. And the remainder of O’Malley’s motion
could not entitle him to relief under Rule 33, the court
added, because the new evidence is not material. We
conclude that the entirety of O’Malley’s submission falls
within the scope of Rule 33(b)(1) even if his theories overlap
with § 2255, and that the district court should have respected
his choice between these available means of relief. We thus
vacate the district court’s decision and remand for further
proceedings.
I. BACKGROUND
The facts of this case and the challenges O’Malley raised
on direct appeal are described fully in our earlier opinion,
O’Malley, 739 F.3d at 1003–06, but we provide a brief
summary as necessary to understand the current appeal.
Michael Pinski hired O’Malley’s company to replace the
sprinkler system in a building that Pinski knew to have
asbestos. O’Malley offered to remove the insulation for an
additional cost and, after Pinski’s warning that some of it
contained asbestos, assured Pinski that he would remove
and dispose of the insulation properly. One of O’Malley’s
employees, James Mikrut, cautioned O’Malley that the
building was “probably all asbestos” and another said that
O’Malley needed a license to remove asbestos. O’Malley
No. 14‐2711 3
eventually hired four people for the job, and they wore light
protective equipment while using a circular saw to strip dry
insulation off the pipes, producing large amounts of asbestos
dust. An asbestos‐abatement company refused to accept the
discarded asbestos insulation, so Mikrut and two other
employees dumped garbage bags full of insulation in an
abandoned farmhouse, a store dumpster, and a field near a
vacant house. Inspections by the Environmental Protection
Agency and its Illinois counterpart eventually led to
O’Malley’s confession that he had not halted the work even
after suspecting the material to be asbestos. Testing
confirmed the material to be a regulated type of asbestos at
high concentrations. O’Malley, Pinski, and Mikrut were
indicted in June 2010. Pinski and Mikrut pleaded guilty and
testified against O’Malley at his jury trial in September 2011.
On direct appeal O’Malley principally argued that, because
not all asbestos is regulated, the government had failed to
prove that he knew the building contained regulated
asbestos. We rejected that argument, concluding that
asbestos is so dangerous and the probability of regulation is
so great that anyone working with the material would be
presumed to know the applicable regulations. Id. at 1007
(citing United States v. Int’l Minerals & Chem. Corp., 402 U.S.
558, 565 (1971)).
Two months after our decision, O’Malley (proceeding
pro se) filed what he labeled as a motion under Rule 33
seeking a new trial based on newly discovered evidence.1
This submission was O’Malley’s third denominated as a Rule 33
1
motion. His first, filed the day after his trial ended and denied two
months later, claimed legal errors not relevant here. The second, filed
while O’Malley’s direct appeal was pending, also rested on what he
described as newly discovered evidence—some of it included in his
4 No. 14‐2711
O’Malley asserted that, through a posttrial demand under
the Freedom of Information Act and other “investigative
work,” he had obtained new evidence that discredited
Pinski, who was critical to establishing O’Malley’s
knowledge of the asbestos. O’Malley separated the new
evidence into three groups: (1) information withheld from
him at the time of trial about Pinski’s ongoing cooperation
with federal authorities investigating Pinski’s involvement
in organized crime; (2) correspondence and agreements
between Pinski and the Illinois EPA, which, O’Malley says,
demonstrate that Pinski steered him to violate the Clean Air
Act unintentionally; and (3) an appraisal of Pinski’s property
done after the asbestos removal that, O’Malley asserts,
contradicts Pinski’s trial testimony.
The district court first addressed O’Malley’s motion in
May 2014. The court, following O’Malley’s lead, separated
the evidence into the same three groups and then denied
“claim three” (the property appraisal) under Rule 33. The
court reasoned that the appraisal, even if previously
unavailable to O’Malley, would have been “merely
impeaching or cumulative” and unlikely to lead to acquittal.
As for the other two “claims,” however, the district court
concluded that O’Malley could proceed only under § 2255.
The court determined that Rule 33 motions based on newly
discovered evidence are limited to situations in which (1) the
present submission—but was withdrawn after the district court warned
O’Malley that his motion would be construed as one under 28 U.S.C.
§ 2255. Rule 33 does not limit the number of motions for new trial
grounded on newly discovered evidence, so long as the motions are filed
within three years of the verdict. FED. R. CRIM. P. 33(b)(1). O’Malley’s
trial was in September 2011, and he filed his current submission within
three years, in March 2014.
No. 14‐2711 5
new evidence establishes actual innocence and (2) the
manner in which the new evidence came to light after trial
does not suggest a constitutional violation. Although it was
only for the first category of evidence that O’Malley had
invoked Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972), the district court concluded
that Brady and Giglio applied to the second category as well
and that O’Malley was relegated to raising both in a motion
to vacate his sentence under § 2255 rather than a motion
under Rule 33. The court gave O’Malley a deadline either to
withdraw the motion or, if he preferred, amend it to include
any other available § 2255 claims. See Castro v. United States,
540 U.S. 375, 383 (2003).
O’Malley moved for reconsideration, insisting that his
submission, in its entirety, is a bona fide Rule 33 motion. He
also asserted that he is innocent and that the new evidence
establishes that he did not “knowingly” deal with regulated
asbestos. He pressed for a new trial or at least an evidentiary
hearing, under Rule 33, on all three of his assertions of
newly discovered evidence. In the alternative, O’Malley
requested more time to amend his submission if the district
court was inflexible about construing part of it as a § 2255
motion. In June 2014 the district court entered a “text order”
denying all relief and noting that the first and second
“claims” would be deemed withdrawn “without prejudice
to bringing them, and any other applicable collateral claims,
as a properly filed [§] 2255 motion within the applicable
limitations period.”2
After the Supreme Court of the United States denied certiorari from our
2
decision upholding O’Malley’s convictions, 135 S. Ct. 411 (Oct. 20, 2014),
6 No. 14‐2711
II. ANALYSIS
O’Malley argues that the district court erred in
concluding that his postjudgment motion is not a legitimate
Rule 33 motion, and instead must be a § 2255 motion, to the
extent that it relies on Brady and Giglio.3 Although Rule 33
decisions typically are reviewed for abuse of discretion,
see United States v. Berg, 714 F.3d 490, 500–01 (7th Cir. 2013);
United States v. Palivos, 486 F.3d 250, 255 (7th Cir. 2007), we
review de novo the legal issue whether a claim is cognizable
in a Rule 33 motion, see United States v. Lawson, 810 F.3d
1032, 1042 (7th Cir. 2016); United States v. Knope, 655 F.3d 647,
660 (7th Cir. 2011).
We conclude that a postjudgment motion based on newly
discovered evidence which happens to invoke a
constitutional theory can be brought under Rule 33(b)(1) or
§ 2255, and thus O’Malley should have been allowed to
choose the procedural vehicle. First, nothing in the text of
Rule 33 excludes claims of newly discovered evidence that
rely on a constitutional theory, such as the rule of Brady and
Giglio. Rather a district court may “grant a new trial if the
he separately filed a timely § 2255 motion claiming actual innocence, No.
15‐cv‐2213 (C.D. Ill. Sept. 24, 2015).
3 O’Malley appealed in August 2014, seeking to challenge both the initial,
written decision from May 2014 and the text order from June 2014. The
district court granted him an extension of time to appeal, purporting to
limit that extension to the June text order denying the motion to
reconsider. But the district court did not fully dispose of O’Malley’s
motion for a new trial until entering the text order, and O’Malley filed
his notice of appeal within the deadline (as extended by the district
court) measured from that order. Thus his notice of appeal is sufficient
for us to review the district court’s May 2014 written decision as well.
No. 14‐2711 7
interest of justice so requires.” FED. R. CRIM. P. 33(a);
see United States v. Peterson, 823 F.3d 1113, 1122 (7th Cir.
2016). A time constraint is the only textual limit in the rule,
and O’Malley’s motion resting on newly discovered
evidence was timely filed within three years of his trial. See
FED. R. CRIM. P. 33(b)(1). We have explained that, under
Rule 33(b)(1), the “interest of justice” requires a new trial if
additional evidence (1) was discovered after trial, (2) could
not have been discovered sooner through the exercise of due
diligence, (3) is material and not merely impeaching or
cumulative, and (4) probably would have led to acquittal.
See United States v. Westmoreland, 712 F.3d 1066, 1072 (7th Cir.
2013); United States v. Hagler, 700 F.3d 1091, 1101 (7th Cir.
2012); United States v. Reyes, 542 F.3d 588, 595 (7th Cir. 2008).
And, like our sister circuits, we routinely evaluate Brady,
Giglio, and other constitutional claims that were raised in
postjudgment Rule 33(b)(1) motions. See, e.g., United States v.
Salem, 578 F.3d 682, 685–90 (7th Cir. 2009) (Brady claim);
United States v. L.E. Myers Co., 562 F.3d 845, 852, 856 (7th Cir.
2009) (Brady claim); United States v. Ervin, 540 F.3d 623, 630–
32 (7th Cir. 2008) (Brady claim); United States v. Calderon,
No. 15‐1652, 2016 WL 3854228, at *4 (1st Cir. July 15, 2016)
(Brady and Giglio claim); United States v. Rafidi, No. 15‐4095,
2016 WL 3670273, at *6 (6th Cir. July 11, 2016) (Brady claim);
United States v. Schneider, 801 F.3d 186, 201–02 (3d Cir. 2015)
(Brady claim); United States v. Bowen, 799 F.3d 336, 351–52
(5th Cir. 2015) (claim of prosecutorial misconduct);
United States v. Parse, 789 F.3d 83, 108–110 (2d Cir. 2015)
(claim of juror bias); United States v. Flores‐Rivera, 787 F.3d 1,
15–16 (1st Cir. 2015) (Brady claim); United States v. Isaacson,
752 F.3d 1291, 1309 (11th Cir. 2014) (Brady claim);
United States v. Hoyle, 751 F.3d 1167, 1171 (10th Cir. 2014)
8 No. 14‐2711
(Brady claim); United States v. Battles, 745 F.3d 436, 446–47
(10th Cir. 2014) (Brady claim); United States v. Sessa, 711 F.3d
316, 321 (2d Cir. 2013) (Brady claim); United States v. Moore,
709 F.3d 287, 292–93 (4th Cir. 2013) (Brady claim);
United States v. Rubashkin, 655 F.3d 849, 857–58 (8th Cir. 2011)
(claim of judicial bias); United States v. Robinson, 627 F.3d 941,
948–52 (4th Cir. 2010) (Brady claim and claim of police
misconduct).
Here the district court held that O’Malley “is seeking
relief that he can only obtain through § 2255,” relying on our
decisions in United States v. Evans, 224 F.3d 670 (7th Cir.
2000), Ruth v. United States, 266 F.3d 658 (7th Cir. 2001), and
United States v. Rollins, 607 F.3d 500 (7th Cir. 2010), for the
proposition that Rule 33 does not authorize a postjudgment
motion based on newly discovered evidence except when
that evidence implies the defendant’s actual innocence and
came to light after trial in a manner not suggesting a
constitutional violation. That reliance is mistaken. Those
decisions, which analyze some of the interplay between
Rule 33 and § 2255, do not purport to define the outer limits
of claims that can be brought under Rule 33.
First, in Evans we concluded that a legitimate,
postjudgment claim of actual innocence based on newly
discovered evidence would fall within the scope of Rule 33
but not § 2255. 224 F.3d at 672–74. We reasoned that motions
to vacate under § 2255 are limited to claims that the
defendant’s conviction or sentence was obtained in violation
of the Constitution or a statute, and thus relief under § 2255
may not be available absent a constitutional or statutory
error even if new evidence shows a factual injustice. See id.
at 673–74; see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931–
No. 14‐2711 9
32 (2013) (explaining that, although the Supreme Court has
not yet recognized right to habeas relief based on standalone
innocence claim, actual innocence may excuse procedural
default of underlying claim); but see United States v. Berry,
624 F.3d 1031, 1040 n.5 (9th Cir. 2010) (noting that Ninth
Circuit recognizes freestanding innocence claim under
§ 2255). In Evans, though, we did not hold that an assertion
of actual innocence is essential to a Rule 33 motion. A theory
that newly discovered evidence establishes the defendant’s
innocence is one, not the only, theory that would support
relief under Rule 33, as the rule encompasses all claims
based on newly discovered evidence which likely would
lead to acquittal whether or not because of actual innocence.
See United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999)
(recognizing that Rule 33 would also be ground for retrial if
newly discovered evidence “would lead to the suppression
of critical evidence, and thus to the acquittal of a person who
actually committed the crime”); United States v. Jordan,
806 F.3d 1244, 1252 (10th Cir. 2015) (newly discovered
evidence under Rule 33 must be “of such a nature that in a
new trial it would probably produce an acquittal” (quoting
United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir.
2006)); Bowen, 799 F.3d at 349 (newly discovered evidence
under Rule 33 “may be relevant to any controlling issue of
law” and “need not relate only to guilt or innocence”);
Weaver v. United States, 793 F.3d 857, 863 (8th Cir. 2015)
(“When newly discovered evidence is the ground for a
§ 2255 motion, the district court should apply the same
substantive test which governs a motion for a new trial
under Fed. R. Crim. P. 33 premised upon the same ground.”
(quotation marks and citation omitted)); United States v.
Forbes, 790 F.3d 403, 406–07 (2d Cir. 2015) (newly discovered
10 No. 14‐2711
evidence under Rule 33 must be likely to result in acquittal);
United States v. McGee, 763 F.3d 304, 321 (3d Cir. 2015) (new
evidence must “probably produce an acquittal” (citation
omitted)); United States v. Scrushy, 721 F.3d 1288, 1304–05
(11th Cir. 2013) (newly discovered evidence “must be such
that it would probably produce an acquittal” but “need not
relate directly to the issue of guilt or innocence”).
Nor did we hold in Evans that a theory of constitutional
or statutory error established through newly discovered
evidence could never be brought under Rule 33. To the extent
that some language in our decisions in Ruth and Rollins may
imply such a holding in Evans, we disavow that
interpretation. In Ruth, the defendant contended that he had
received new evidence (through a request under the
Freedom of Information Act) which bolstered his claim of
innocence, and we concluded this theory was properly
brought under Rule 33. See 266 F.3d at 660–61. But, relying
on Evans, we added in dicta that if the defendant had
included a Brady claim it would have fallen only under
§ 2255, see id. at 661, although Evans does not command that
conclusion. Then, in Rollins, the bulk of our decision
considers the jurisdictional implications of a motion to
reconsider the denial of a motion for a new trial based on
newly discovered evidence. See 607 F.3d at 501–04. After
acknowledging that the district court had determined that
the evidence relied on by the defendant was not newly
discovered, we stated that he should have brought his action
under § 2255 instead of Rule 33 because he had asserted
constitutional errors. See id. at 504. But, consistent with other
circuits, we have assessed constitutional theories in the
context of postjudgment Rule 33(b)(1) motions based on
newly discovered evidence since Evans was decided. We
No. 14‐2711 11
now clarify that a motion for a new trial based on newly
discovered evidence that demonstrates constitutional or
statutory error may indeed be brought under Rule 33 and
should be granted “if the interest of justice so requires.” FED.
R. CRIM. P. 33(a).
Here, O’Malley asserted that he possesses newly
discovered evidence which, he insists, would lead to his
acquittal. Some of that evidence, he says, was withheld by
the government in violation of the rule of Brady and Giglio,
which presents a constitutional claim cognizable under
§ 2255. But when overlapping remedies are available, a
prisoner is permitted to choose which to invoke.
See United States v. Boyd, 591 F.3d 953, 956–57 (7th Cir. 2010)
(expressly contrasting Evans and allowing defendant’s
Rule 35(a) motion to proceed even though claim also could
have been brought under § 2255); Collins v. Holinka, 510 F.3d
666, 667 (7th Cir. 2007) (“Persons who initiate independent
litigation are entitled to have it resolved under the grant of
authority they choose to invoke.”). And here O’Malley chose
to use Rule 33. There was no need to recast his submission as
one under § 2255 because there was no need to prevent him
from “circumventing” the requirement of the Antiterrorism
and Effective Death Penalty Act of 1996 that our permission
be obtained before filing a second or successive § 2255
motion. See 28 U.S.C. § 2244(b)(3); Poe v. United States,
468 F.3d 473, 476 (7th Cir. 2006). The Supreme Court has said
only that a district court must warn a prisoner and provide
an opportunity to withdraw or amend the motion if the
court chooses to recharacterize that filing as a § 2255 motion.
See Castro, 540 U.S. at 383; see also Figuereo‐Sanchez v.
United States, 678 F.3d 1203, 1206–07 (11th Cir. 2012);
United States v. Blackstock, 513 F.3d 128, 134 (4th Cir. 2008);
12 No. 14‐2711
In re Wagner, 421 F.3d 275, 278 (3d Cir. 2005). In Castro, the
Court did not require that district courts recharacterize a
motion as one under § 2255. See Henderson v. United States,
264 F.3d 709, 711 (7th Cir. 2001) (“Nothing in AEDPA says
that a motion not labeled as a section 2255 motion shall
nevertheless be deemed one if it could have been so labeled
accurately. This is a purely judge‐made rule, and so its
contours are up to the judges to draw.”); Zelaya v. Sec’y, Fla.
Dep’t of Corr., 798 F.3d 1360, 1366–67 (11th Cir. 2015)
(allowing a prisoner to proceed, albeit unsuccessfully, under
§ 2241 instead of § 2255 since he emphatically had insisted
that was his choice). One reason that district courts should
warn about the consequences of recasting a submission is to
help the prisoner decide “whether he should contest the
recharacterization.” Castro, 540 U.S. at 384. The sequence of
events in O’Malley’s case allowed him the option of filing a
timely Rule 33 motion or a timely § 2255 motion, and he
several times said that he wanted to use Rule 33 instead of
§ 2255.
III. CONCLUSION
Because the district court improperly required O’Malley
to bring pieces of his evidence in a separate action, we vacate
the ruling and direct the district court to allow him to
proceed under Rule 33. We express no opinion on the
underlying merits of O’Malley’s motion.