United States v. Curry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6960
DRAYTON CURRY, a/k/a Mr. C.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-91-272-A)
Submitted: February 27, 1997
Decided: March 14, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard B. Mazer, LAW OFFICES OF RICHARD B. MAZER, San
Francisco, California, for Appellant. Helen F. Fahey, United States
Attorney, Vincent L. Gambale, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Drayton Curry appeals the district court's denial of his
motion for a new trial under the Jury Selection Act ("the Act"), 28
U.S.C. §§ 1861-1878 (1994), wherein he alleged that African-
Americans were not adequately represented in the jury pool from
which his jury was selected. Curry was convicted of various drug traf-
ficking offenses and was sentenced to serve life in prison. However,
prior to trial, the district court denied Curry's motion to review the
master jury list. On appeal, we affirmed Curry's conviction and sen-
tence. See United States v. Curry, 993 F.2d 43 (4th Cir. 1993). We
reversed the denial of Curry's motion to review the grand jury list.
We held that Curry was entitled to review the jury list. If on remand
Curry filed a timely motion for a new trial demonstrating a violation
of the Act that prejudiced him, the district court was instructed to
grant his motion. Curry, 993 F.2d at 44-45.
A motion for relief challenging the jury selection process must be
made "within seven days after the defendant discovered or could have
discovered, by the exercise of diligence, the grounds therefor . . . ."
28 U.S.C. § 1867(a). Following remand, Curry did not request the
jury list from the Clerk of the Court until one year after the mandate
from this court had been issued. And he did not move for a new trial
for another two years.
Based on Curry's lack of diligence in both seeking review of the
jury list and in filing his motion for a new trial, we find that Curry's
§ 1867(a) motion for a new trial was not timely filed. See United
States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986) (challenge to jury
selection untimely when § 1867(a) motion not filed within seven
days). Accordingly, we affirm the district court's order denying
Curry's motion as time-barred.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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