Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 — United States v. Aleta Necole Thomas

Summary

Aleta Necole Thomas, sentenced on 6/7/2022 to 30 months on each of Counts Three and Four, to run concurrently, asked the Northern District of Oklahoma on 07/13/22 to vacate the convictions and sentence under 28 U.S.C. § 2255 (Case 4:21-cr-00239-GKF, Document 125). Both counts were false statements to a financial institution under 18 U.S.C. § 1014; the motion says Thomas pleaded guilty to all charges in the indictment and that the judgment was entered on 6/8/2022. Ground One says former counsel at sentencing received approximately 30 to 40 character letters in support of mitigation but never submitted them. Ground Two says both co-defendants hold the position that Thomas was not involved in the charged offenses, that one co-defendant's attorney told former counsel so, and that counsel did not investigate. The motion, on the AO 243 form, is signed by attorney Matthew Allen Chivari.

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page1of13

AO 243 (Rev. 09/17)

10.

Motion to Vacate, Set Aside, or Correct a Sentence
By a Person in Federal Custody

(Motion Under 28 U.S.C. § 2255)

Instructions

To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court.
You are asking for relief from the conviction or the sentence. This form is your motion for relief.

You must file the form in the United States district court that entered the judgment that you are challenging. If
you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the
motion in the federal court that entered that judgment.

Make sure the form is typed or neatly written.

You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted
for perjury.

Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do
not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit
any legal arguments, you must submit them in a separate memorandum. Be aware that any such memorandum
may be subject to page limits set forth in the local rules of the court where you file this motion.

If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed
in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must
submit a certificate signed by an officer at the institution where you are confined showing the amount of money
that the institution is holding for you.

In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment
entered by a different judge or division (either in the same district or in a different district), you must file a
separate motion.

When you have completed the form, send the original and 9 copies to the Clerk of the United States District

Court at this address:

Clerk, United States District Court for Northern District of Oklahoma
333 W 4th St # 411,
Tulsa, OK 74103

If you want a file-stamped copy of the petition, you must enclose an additional copy of the petition and ask the
court to file-stamp it and return it to you.

CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that
you challenge. And you must state the facts that support each ground. If you fail to set forth all the
grounds in this motion, you may be barred from presenting additional grounds at a later date.

CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and
should request the appointment of counsel.

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 2 of13

AO 243 (Rev. 09/17)
MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT

SENTENCE BY A PERSON IN FEDERAL CUSTODY

United States District Court | District Northern District of Oklahoma
Name (under which you were convicted): Docket or Case No.:
Aleta Necole Thomas 4:21-cr-00239-GKF-1
Place of Confinement: Prisoner No.:
pending self surrender N/A
UNITED STATES OF AMERICA Movant (include name under which convicted)
V. Aleta Necole Thomas

MOTION

1. (a) Name and location of court which entered the judgment of conviction you are challenging:

United States District Court for Northern District of Oklahoma
333 W 4th St #411,
Tulsa, OK 74103

(b) Criminal docket or case number (if you know): 4:21-cr-00239-GKF-1 |

2. (a) Date of the judgment of conviction (if you know): 6/8/2022
(b) Date of sentencing: 6/7/2022

3. Length of sentence: 30 months as to each of Counts Three and Four; concurrent.

4. Nature of crime (all counts):

Count 3: 18 U.S.C. § 1014, False Statement to a Financial Institution
Count 4: 18 U.S.C. § 1014, False Statement to a Financial Institution

5. (a) What was your plea? (Check one)
(1) Not guilty [] (2) Guilty (3) Nolo contendere (no contest) [|

6. (b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment,
what did you plead guilty to and what did you plead not guilty to?

Pleaded guilty to all charges against movant in the indictment

6. Ifyou went to trial, what kind of trial did you have? (Check one) Faty|_] Judge only [|

7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes [| No| ¥ |

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 3of13

AO 243 (Rev. 09/17)
8. Did you appeal from the judgment of conviction? Yes [_] No

9. Ifyou did appeal, answer the following:
(a) Name of court:

(b) Docket or case number (if you know):
(d) Dateofresult(ifyouknow):;
(e) Citation to the case (if you know): __

(f) Grounds raised:

(g) Did you file a petition for certiorari in the United States Supreme Court? Yes [ | No [|
If “Yes,” answer the following:
(1) Docket or case number (if you know):

(3) Date of result Gf youknow): |
(4) Citation to the case (if you know):
(5) Grounds raised:

10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications,
concerning this judgment of conviction in any court?

Yes [ ] No

ll. If your answer to Question 10 was “Yes,” give the following information:
(a) (1) Name of court:

(2) Docket or case number (if you know):
(3) Date of filing Gfyouknow):

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 4of13

AO 243 (Rev. 09/17)

(4) Nature of the proceeding:

(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or application?

(7) Result:
(8) Date of result (if you know):

(b) If you filed any second motion, petition, or application, give the same information:
(1) Name of court:
(2) Docket of case number (if you know):
(3) Date of filing (if you know):

(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or application?

Yes [| No [|

(7) Result:
(8) Date of result (if you know):

(c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition,
or application?

(1) First petition: Yes [| No [

(2) Second petition: Yes [ ] No [ ]

(d) If you did not appeal from the action on any motion, petition, or application, explain briefly why you did not:

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 5of13

AO 243 (Rev. 09/17)

12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution,
laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts
supporting each ground. Any legal arguments must be submitted in a separate memorandum.

GROUND ONE: Ineffective Assistance of Counsel

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

Former counsel who handled Movant's sentencing received approximately 30 to 40 character letters in support of
Movant's 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 Movant a fair sentencing,
all to Movant's prejudice.

(b) Direct Appeal of Ground One:
(1) Ifyou appealed from the judgment of conviction, did you raise this issue?

Yes [| No [|

(2) Ifyou did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [ | No [|
(2) Ifyou answer to Question (c)(1) is “Yes,” state:
Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?

Yes [| No 4

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 6of13

AO 243 (Rev. 09/17)

(4) Did you appeal from the denial of your motion, petition, or application?

(5) Ifyour answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?

(6) If your answer to Question (c)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this

issue:

GROUND TWO: ineffective Assistance of Counsel

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.);

Both co-defendants in this case hold the position that Movant was not involved in the charged offenses. The
attorney of one of the co-defendants informed Movant’s former counsel that his client (the co-defendant) advised
that Movant did not participate in criminal conduct, and the co-defendant was willing to provide information as to
Movant’s 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 Movant’s involvement in the offenses. However, former counsel
failed to do his due diligence to pursue these vehicles for Movant’s exoneration and/or defense. Had counsel done
so, the outcome of Movant's case could have been different.

(b) Direct Appeal of Ground Two:
(1) Ifyou appealed from the judgment of conviction, did you raise this issue?

Yes [| No [|

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 7 of 13

AO 243 (Rev. 09/17)

(2) Ifyou did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [| No [|
(2) Ifyou answer to Question (c)(1) is “Yes,” state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?

Yes [| No [ ]

(4) Did you appeal from the denial of your motion, petition, or application?

(5) Ifyour answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?

Yes [| No [|

(6) If your answer to Question (c)(4) is “Yes,” state:

Name and location of the court where the appeal was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(7) Ifyour answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this

issue:

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 8of13

AO 243 (Rev. 09/17)
GROUND THREE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Three:
(1) Ifyou appealed from the judgment of conviction, did you raise this issue?

Yes|_| No [_]

(2) Ifyou did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:
(1) Did you raise this issue in any post-conviction motion, petition, or application?
Yes [| No [ ]
(2) Ifyou answer to Question (c)(1) is “Yes,” state:

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?

(4) Did you appeal from the denial of your motion, petition, or application?

Yes [ | No [_ ]

(5) Ifyour answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?
Yes [| No

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 9of13

AO 243 (Rev. 09/17)

(6) If your answer to Question (c)(4) is “Yes,” state:

Name and location of the court where the appeal was filed:

Docket or case number (if you know):
Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(7) Ifyour answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this

issue:

GROUND FOUR:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Four:
(1) If you appealed from the judgment of conviction, did you raise this issue?

(2) Ifyou did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings:

(1) Did you raise this issue in any post-conviction motion, petition, or application?

Yes [| No [ |

(2) Ifyou answer to Question (c)(1) is “Yes,” state:

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 10 of 13

AO 243 (Rev. 09/17)

13;

Type of motion or petition:

Name and location of the court where the motion or petition was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application?

(4) Did you appeal from the denial of your motion, petition, or application?

(5) If your answer to Question (c)(4) is “Yes,” did you raise the issue in the appeal?

(6) If your answer to Question (c)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:

Docket or case number (if you know):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is “No,” explain why you did not appeal or raise this

issue:

Is there any ground in this motion that you have not previously presented in some federal court? If so, which
ground or grounds have not been presented, and state your reasons for not presenting them:

Both grounds have not been presented in a federal court, because this 2255 motion is the first opportunity for
Movant to raise these claims.

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 11 of 13

AO 243 (Rev. 09/17)

14.

15.

16.

Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court for the
you are challenging? Yes [ | No
If “Yes,” state the name and location of the court, the docket or case number, the type of proceeding, and the

issues raised.

Give the name and address, if known, of each attorney who represented you in the following stages of the
judgment you are challenging:

(a) At the preliminary hearing:

CJA attorney Keith Allen Ward, 1874 S BOULDER AVE, TULSA, OK 74119

(b) At the arraignment and plea:
CJA attorney Keith Allen Ward, 1874 S BOULDER AVE, TULSA, OK 74119

(c) At the trial:
N/A

(d) At sentencing:
CJA attorney Keith Allen Ward, 1874 S BOULDER AVE, TULSA, OK 74119

(e) On appeal:
N/A

(f) In any post-conviction proceeding:
Murdoch Walker , Il & Matthew Chivari, 101 Marietta St NW, Ste. 3325, Atlanta, GA 30303

(g) On appeal from any ruling against you in a post-conviction proceeding:

N/A

Were you sentenced on more than one court of an indictment, or on more than one indictment, in the same court

and at the same time? Yes No [|

Do you have any future sentence to serve after you complete the sentence for the judgment that you are

challenging? Yes [| No

(a) Ifso, give name and location of court that imposed the other sentence you will serve in the future:

(b) Give the date the other sentence was imposed:
(c) Give the length of the other sentence:

(d) Have you filed, or do you plan to file, any motion, petition, or application that challenges the judgment or
sentence to be served in the future? Yes [] No []

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 12 of 13
AO 243 (Rev. 09/17)
18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain
why the one-year statute of limitations as contained in 28 U.S.C. § 2255 does not bar your motion.*

This motion is timely because the Judgment in this case was entered on June 8, 2022 and this motion is filed
within the one year statute of limitation.

* The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) as contained in 28 U.S.C. § 2255,
paragraph 6, provides in part that:
A one-year period of limitation shall apply to a motion under this section. The limitation period shall run
from the latest of —
(1) the date on which the judgment of conviction became final;
(2) the date on which the impediment to making a motion created by governmental action in violation of
the Constitution or laws of the United States is removed, if the movant was prevented from making such a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.

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Case 4:21-cr-00239-GKF Document 125 Filed in USDC ND/OK on 07/13/22 Page 13 of 13

AO 243 (Rev. 09/17)

Therefore. movant asks that the Court grant the following relief:

to vacate his convictions and sentence

or any other relief to which movant may be entitled.

s/ Matthew Allen Chivari, Esq.
Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Motion
under 28 U.S.C. § 2255 was placed in the prison mailing system on

(month, date, year)

Executed (signed) on (date)

Signature of Movant

If the person signing is not movant, state relationship to movant and explain why movant is not signing this motion.

Movant retained the above-signed attorney to represent him in the instant federal 2255 proceeding, and authorized the
above-signed attorney to sign this motion.

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