Chikerema v. United States

          ORDER DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

         For the reasons explained in this Entry, the motion of Martin Chikerema for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. The § 2255 Motion

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)).

         II. Factual Background

         On December 22, 2016, Mr. Chikerema was charged in an Information with one count of making and subscribing a false or fraudulent tax return, in violation of 26 U.S.C. § 7206(1). United States v. Chikerema, 1:16-cr-277-TWP-DML-1 (“Crim. Dkt.”) Dkt. 1.

         That same day, a petition to enter a plea of guilty and plea agreement was filed pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B). Crim. Dkt. 6. In the plea agreement, Chikerema agreed to plead guilty to making and subscribing a false or fraudulent tax return. Id. at 1.

         The plea agreement contained the following factual basis: Mr. Chikerema worked under his brother at a tax preparation business located in Indianapolis and operated under various names, including Express Tax, Community Income Tax, and M&V Enterprises. Crim. Dkt. 6, ¶ 17. Mr. Chikerema used the preparer firm names of Community Income Tax and Express Tax Services, along with the preparer names of Community Income Tax, Victor Chikerema, and Irene Chikerema, to submit the tax returns to the Internal Revenue Service. Id.

         For at least tax years 2010 through 2013, Mr. Chikerema prepared and filed tax returns in which he included false information relating to the American Opportunity Tax Credit and the Earned Income Tax Credit. Id. These returns included his own. Id. In preparing and filing his own 2011 tax return with the IRS, the return was false as to a material matter. Id. Mr. Chikerema signed the return, which contained a written declaration that it was made under penalties of perjury. Id. When doing so, he knew (and acted willfully) that he had a legal duty to file a truthful tax return, but did not believe that the return was truthful as to a material matter. Id. As a result of preparing and filing others' and his own falsified tax returns, Mr. Chikerema caused at least $510, 307 in loss to the Internal Revenue Service. Id. In some instances, without the client's consent or knowledge, Mr. Chikerema had refunds resulting from the fraudulent returns deposited into his and his brother's bank accounts. Id. He willfully aided, assisted in, procured, counseled, and advised the preparation of income tax returns that were false as to material matters. Id. These returns were filed with the Internal Revenue Service, and he knew that the returns were false when he prepared them. Id.

         Mr. Chikerema also admitted these facts at his change of plea hearing. Crim. Dkt. 28, p. 17- 20. Also as part of the plea agreement, Mr. Chikerema waived his right to file a direct appeal and, other than claims of ineffective assistance of counsel, waived his right to challenge his conviction or sentence in a post-conviction motion. Id. at pp. 17, 22, and 23. The parties agreed that the government would recommend a sentence within the guidelines range and Mr. Chikerema could request a lesser sentence. Crim. Dkt., ¶ 9. Mr. Chikerema agreed to pay $40, 770 in restitution to the Internal Revenue Service. Id., ¶ 15.

         At his plea hearing, Mr. Chikerema declared that: he had read the entire plea agreement and discussed it with his attorney; he understood the terms of the plea agreement; no person had made any promises to him that he would receive a lighter sentence if he would plead guilty except as provided in the agreement; and that, he made no claim of innocence and was entering the agreement freely and voluntarily because he is guilty. Crim. Dkt. 28, p. 7. Mr. Chikerema further affirmed that he agreed to pay restitution in the amount of $40, 770. Id. at 16.

         At the end of the plea colloquy, the Court accepted Mr. Chikerema's plea, specifically finding that Mr. Chikerema was entering his plea knowingly and voluntarily and that it was supported by an independent basis of fact that contained each of the essential elements of the offense. Id., p. 26.

         After the Court accepted Mr. Chikerema's plea, it proceeded to sentencing. At the hearing, counsel and Mr. Chikerema confirmed they had reviewed the presentence report and had no objections, noting one correction in Mr. Chikerema's family history. Id., p. 27. The Court accepted the presentence report and its findings of fact. Id. Mr. Chikerema was sentenced to six months' imprisonment and one year of supervised release. Crim. Dkt. 24. The Court also ordered restitution in the amount of $40, 770.00. Id.

         Mr. Chikerema did not appeal his conviction or sentence. He then filed this motion for relief ...