[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11435

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Southern District of Florida

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(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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