Court filing
MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by Aleta Necole Thomas — USA v. Thomas (Dkt. 124)
Record facts
| Court | U.S. District Court for the Northern District of Oklahoma |
|---|---|
| Filed | 2022-07-13 |
U.S. District Court for the Northern District of Oklahoma · No. 4:21-cr-00239-GKF · Doc. 124 · 2022-07-13 · Docket on CourtListener
Summary
A motion to stay surrender date and for bond pending a 28 U.S.C. § 2255 motion, filed July 13, 2022 by defendant Aleta Necole Thomas in United States v. Thomas, No. 4:21-cr-00239-GKF, in the U.S. District Court for the Northern District of Oklahoma (Doc. 124). Citing 18 U.S.C. § 3143(a)(1), it asks the court to stay her surrender date, or extend it by 90 days, and to let her remain on release while the simultaneously filed § 2255 motion is decided. The motion recounts that on June 8, 2022 the court imposed a thirty-month prison term with voluntary surrender set for July 20, 2022. It summarizes two ineffective-assistance claims: that former counsel did not submit character letters at sentencing and did not investigate information from a co-defendant's attorney. The five-page filing is signed by counsel Matthew Allen Chivari and includes a certificate of service.
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Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TULSA DIVISION
UNITED STATES OF AMERICA
)
)
v.
)
4:21-CR-00239-GKF-1
)
ALETA NECOLE THOMAS
)
MOTION TO STAY SURRENDER DATE AND
MOTION FOR BOND PENDING 28 U.S.C. § 2255 MOTION
Ms. ALETA NECOLE THOMAS, pursuant to 18 U.S.C. § 3143(a)(1),
respectfully moves this Court to stay her surrender date pending the litigation
of the simultaneously filed Motion to Vacate, Set Aside, or Correct a Sentence
under 28 U.S.C. § 2255, or, at the very least, to extend the surrender date by 90
days; and, to allow her to remain on release pending the disposition of her
2255 motion.
I.
Relevant Procedural History
On June 8, 2022, this Court sentenced Ms. Thomas, inter alia, to serve a
term of imprisonment of thirty months, and ordered that Ms. Thomas
voluntarily surrender to the Federal Bureau of Prisons’ designated institution
on July 20, 2022, before 2:00 p.m. (J., ECF No. 113, at 2.)
II.
Factual Assertions
On July 13, 2022, Ms. Thomas filed a Motion to Vacate, Set Aside, or
Correct a Sentence under 28 U.S.C. § 2255, which she submits is meritorious,
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Case 4:21-cr-00239-GKF Document 124 Filed in USDC ND/OK on 07/13/22 Page 1 of 5
with a likelihood to succeed, and that is unlikely to be adjudicated by this
Court prior to her previously scheduled voluntary surrender date.
III.
Memorandum of Law
In order to receive bail pending a decision on the merits of a habeas
corpus petition, prisoners must be able to show not only a substantial claim
of law based on the facts surrounding the petition but also the existence of
“some circumstance making [the motion for bail] exceptional and deserving
of special treatment in the interests of justice.” Aronson v. May, 85 S. Ct. 3, 5
(1964).
Ms. Thomas’ 2255 motion demonstrates two claims of ineffective
assistance of counsel:
First, Former counsel who handled Ms. Thomas’ sentencing received
approximately 30 to 40 character letters in support of Ms. Thomas’ mitigation
at sentencing. However, counsel never submitted the character letters. Thus,
counsel's deficiency caused the Court to impose a disfavoring sentence
accordingly and deprived Ms. Thomas a fair sentencing, all to Ms. Thomas’
prejudice.
Second, both co-defendants in this case hold the position that Ms.
Thomas was not involved in the charged offenses. The attorney of one of the
co-defendants informed Ms. Thomas’ former counsel that his client (the co-
defendant) advised that Ms. Thomas did not participate in criminal conduct,
and the co-defendant was willing to provide information as to Ms. Thomas’
2
Case 4:21-cr-00239-GKF Document 124 Filed in USDC ND/OK on 07/13/22 Page 2 of 5
innocence. Upon learning such critical information, any reasonable lawyer
would immediately initiate an investigation of the relevant facts to assess and
prepare a potential defense, which could be very compelling, and/or, at the
very least, a strategy to minimize Ms. Thomas’ involvement in the offenses.
However, former counsel failed to do his due diligence to pursue these
vehicles for Ms. Thomas’ exoneration and/or defense. Had counsel done so,
the outcome of Ms. Thomas’ case could have been different.
If Ms. Thomas’ 2255 motion ultimately is successful, it is likely that she
will have to serve the thirty-month term of imprisonment resulting from the
convictions that she is challenging, if she is not allowed to remain on release
pending this Court’s resolution of the motion. That circumstance, therefore,
causes Ms. Thomas’ 2255 motion to be an exceptional one that deserves
special treatment in the interests of justice.
This Court, by its allowing Ms. Thomas to remain on release pending
the execution of her sentence, necessarily found by clear and convincing
evidence that she is not likely to flee or to pose a danger to the community. See
18 U.S.C. § 3143(a)(1). Ms. Thomas respectfully submits that she remains in
compliance with the conditions of release imposed by this Court, and that she
continues to pose no risk of flight or any danger to the community.
IV.
Conclusion
Ms. Thomas, based on the foregoing assertions and argument, prays
that this Court stay her surrender date pending the litigation of the
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Case 4:21-cr-00239-GKF Document 124 Filed in USDC ND/OK on 07/13/22 Page 3 of 5
simultaneously filed Motion to Vacate, Set Aside, or Correct a Sentence under
28 U.S.C. § 2255, or, at the very least, to extend by 90 days; and, to allow her to
remain on release pending the disposition of her 2255 motion.
Date:
July 13, 2022
s/ Matthew Allen Chivari, Esq.
Matthew Allen Chivari, Esq.
Il. Bar # 6337524
mchivari@lowtherwalker.com
Lowther | Walker LLC
101 Marietta St., NW, Ste. 3325
Atlanta, GA 30303
404.496.4052
www.lowtherwalker.com
Attorney for Aleta Necole Thomas
4
Case 4:21-cr-00239-GKF Document 124 Filed in USDC ND/OK on 07/13/22 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TULSA DIVISION
UNITED STATES OF AMERICA
)
)
v.
)
4:21-CR-00239-GKF-1
)
ALETA NECOLE THOMAS
)
CERTIFICATE OF SERVICE
I certify that on July 13, 2022, I electronically filed the forgoing
MOTION TO EXTEND SURRENDER DATE AND MOTION FOR BOND
PENDING 28 U.S.C. § 2255 MOTION with the Clerk of the United States
District Court for the Northern District of Oklahoma by way of the CM/ECF
system, which automatically will serve this document on the attorneys of
record for the parties in this case by electronic mail.
Date:
July 13, 2022
s/ Matthew Allen Chivari, Esq.
Matthew Allen Chivari, Esq.
Il. Bar # 6337524
mchivari@lowtherwalker.com
Lowther | Walker LLC
101 Marietta St., NW, Ste. 3325
Atlanta, GA 30303
404.496.4052
www.lowtherwalker.com
Attorney for Aleta Necole Thomas
5
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