United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISCUSSING MOTION FOR RELIEF PURSUANT TO 28
U.S.C. § 2255 AND DENYING CERTIFICATE OF
WALTON PRATT, JUDGE
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
The § 2255 Motion
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)).
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.
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.
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.
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.
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.
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.
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.,
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.
Chikerema did not appeal his conviction or sentence. He then
filed this motion for relief ...