1    IN THE UNITED STATES DISTRICT COURT    FOR THE DISTRICT OF MARYLAND   UNITED STATES OF AMERICA  *      *    Civil Action No.  CCB-20-2407  v.  *    Criminal Action No. CCB-11-0569    *  DANILO GARCIA  *  ***  MEMORANDUM    On October 13, 2015, Danilo Garcia was convicted by a jury of conspiracy to distribute a  kilogram or more of heroin and related charges. (ECF 780). His conviction was affirmed on  direct appeal to the Fourth Circuit and the mandate was issued on January 6, 2017. (ECF 861).  On August 20, 2020, more than three years after Garcia’s conviction became final, the court  received his motion to vacate conviction under 28 U.S.C. § 2255, alleging without proof that the  indictment was not properly returned by the grand jury in open court. (ECF 890). The  government has responded (ECF 895), and Garcia has filed a reply (ECF 897). For the reasons  stated below, the motion will be denied.    As thouroughly explained in the government’s response (ECF 895), the motion to vacate  was filed well past the one-year limitations deadline and therefore is untimely. See28 U.S.C. §  2255(f) (defendant has one year from the date when judgment of conviction becomes final to file  a motion to vacate). Further, the claim about the indictment could have been raised on direct  appeal, but was not, and therefore is procedurally defaulted. Garcia’s reply provided no basis for  equitable tolling or to excuse the procedural default. Finally, there is no merit to his claim. The  superseding indictment on which he was convicted, with the foreperson’s signature, is on the  court’s electronic docket. (SeeECF 314; ECF 315). There is no evidence of any irregularity.  Case 1:11-cr-00569-CCB Document 898 Filed 12/07/20 Page 1 of 2