           Case: 15-11435    Date Filed: 09/18/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11435
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:10-cr-20186-JLK-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

LYNVAL DWYER,
a.k.a. Richie,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 18, 2015)

Before TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Lynval Dwyer appeals pro se the denial of his belated motions for a new

trial and for discovery. See Fed. R. Crim. P. 33. Dwyer moved for a new trial on

the ground of prosecutorial misconduct and for discovery related to the alleged

misconduct. We affirm.

      On November 18, 2010, a jury found Dwyer guilty of conspiring to import

500 grams or more of cocaine into the United States, 21 U.S.C. § 963, and of

conspiring to possess and of attempting to possess with intent to distribute 500

grams or more of cocaine, id. § 846; 18 U.S.C. § 2. The district court sentenced

Dwyer to 72 months of imprisonment. Dwyer appealed and challenged the denial

of his motions to testify about coercive statements allegedly made by a drug

supplier and by a confidential informant, Lloyd Garrick, and to have a related jury

instruction about duress. We affirmed on the basis that Dwyer’s proffer of

evidence failed to prove that he acted under an immediate threat of harm or that he

was unable to inform the police of the alleged coercion before his arrest. United

States v. Taylor, 457 Fed. App’x 835, 837 (11th Cir. 2012).

      In February 2013, Dwyer moved to vacate his convictions on the ground that

his trial counsel was ineffective for failing to argue that Dwyer was entrapped by

Garrick. See 28 U.S.C. § 2255. In support of his motion, Dwyer submitted

evidence that, before his trial, he received a transcript of a trial in which Garrick

testified as an informant for the government and admitted that he had been


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convicted of a felony in 1991. The district court denied the motion on the ground

that trial counsel made a strategical decision not to pursue an entrapment defense

because Dwyer admitted to importing drugs to aid Garrick. Dwyer did not appeal.

      On June 30, 2014, Dwyer moved for a new trial, see Fed. R. Crim. P. 33(a),

and for production of his grand jury proceedings, see Fed. R. Crim. P. 6(e). Later,

Dwyer moved for discovery related to Garrick’s criminal proceedings. Dwyer

alleged that the government had withheld information about Garrick’s prior

convictions, Garrick’s contract with the government, and recordings of telephone

calls in 2008 between Garrick and Dwyer that would have proved Garrick induced

or entrapped Dwyer to import cocaine in 2010, see Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194 (1963), and that the government misrepresented Dwyer’s role in

the conspiracy, Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). The

district court denied Dwyer’s motion for a new trial as untimely and, in the

alternative, lacking merit. The district court also denied Dwyer’s motions for

discovery.

      The district court did not abuse its discretion when it denied as untimely

Dwyer’s postconviction motion for a new trial. To obtain a new trial, a defendant

must file a motion “grounded on newly discovered evidence . . . within 3 years

after the verdict,” Fed. R. Crim. P. 33(b)(1), and for “any other reason . . . within

14 days after the verdict,” Fed. R. Crim. P. 33(b)(2). Dwyer waited more than


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seven months after the three-year deadline expired to file his motion.

      Dwyer argues that his filing deadline should have been extended, but the

district court did not abuse its discretion in denying this request. Dwyer failed to

establish that the delay in filing his motion was attributable to “excusable neglect.”

See Fed. R. Crim. P. 45(b)(1). The district court was entitled to find, after “tak[ing]

account of all relevant circumstances,” that Dwyer was dilatory in acting on

information he obtained before trial about Garrick’s work as a government

informant and his criminal history. See Advanced Estimating Sys., Inc. v. Riney, 77

F.3d 1322, 1325 (11th Cir. 1996).

      The district court was not required to conduct an evidentiary hearing when

Dwyer’s motion was untimely and a cursory review revealed that his allegations of

prosecutorial misconduct lacked merit. See United States v. Massey, 89 F.3d 1433,

1443 (11th Cir. 1996). Dwyer could not prove that the government violated Brady

when Dwyer possessed or with reasonable diligence could have obtained the

information about Garrick’s background; the information could not be used for

impeachment because Garrick did not testify; and the telephone conversations in

which Dwyer discussed importing drugs with Garrick would have been unhelpful

in portraying Dwyer as a victim of duress or entrapment. See Brady, 373 U.S. at

87, 83 S. Ct. at 1196–97; United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir.

2001).The evidence about Garrick also could not cast doubt on the evidence about


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Dwyer’s role when Dwyer testified that Garrick was “not involved” in the

conspiracy. See Giglio, 405 U.S. at 153, 92 S. Ct. at 766.

      The district court also did not abuse its discretion when it denied Dwyer’s

motions to conduct discovery and to obtain records of grand jury proceedings.

Dwyer was not entitled to discovery that was not intended to unearth evidence to

justify a new trial. See United States v. Espinosa-Hernandez, 918 F.2d 911, 913–14

(11th Cir. 1990). Evidence regarding Garrick’s background was irrelevant to

Dwyer’s guilt and was unnecessary to dispose of his motion for a new trial. Dwyer

also failed to establish he had a “compelling and particularized need” to breach the

secrecy traditionally afforded to grand jury proceedings. See United States v.

Aisenberg, 358 F.3d 1327, 1348 (11th Cir. 2004). Dwyer’s allegations that

disclosure “may reveal” grounds to challenge his indictment or convictions, as the

district court stated, exemplify “the kind of fishing expedition that cannot justify

disclosure.”

      Dwyer argues that his trial counsel was ineffective and his indictment should

be dismissed, but these arguments fail. We decline to consider issues that Dwyer

failed to raise in his motion for a new trial. See Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998). Moreover, Dwyer may not challenge the

competence or reliability of the evidence on which the grand jury based its finding

of probable cause. See Kaley v. United States, 571 U.S. ____, 134 S. Ct. 1090,


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1097–98 (2014). And Dwyer is barred from relitigating the effectiveness of trial

counsel. See United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005).

      We AFFIRM the denial of Dwyer’s motions for a new trial and for

discovery.




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