USA v. Alatan, et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, §
§
Plaintiff/Respondent, §
§
v. §
§
OLOTIN ALFRED ALATAN, §
§
Defendant/Petitioner. §
CRIMINAL NUMBER H-19-0633-01
(CIVIL ACTION NO. H-24-1096)
MEMORANDUM OPINION AND ORDER
Olotin Alfred Alatan ("Defendant") was convicted of health
care fraud offenses and sentenced to 120 months in prison. 1
Pending before the court is Defendant's Rule 60(b) Motion to Reopen
§ 2255 Proceedings ("Defendant's Motion to Reopen") (Docket Entry
No. 410). The United States has filed a Memorandum Opposing
Rule 60 Motion (Docket Entry No. 417), and Defendant has filed
Movant's Reply in Support of Rule 60(b) Motion to Reopen § 2255
Proceedings (Docket Entry No. 420). For the reasons explained
below, Defendant's Motion to Reopen will be dismissed.
I. Background
Defendant and codefendants were indicted in this case on
August 28, 2019. 2 In an April 6, 2022, Superseding Indictment,
1Judgment in a Criminal Case, Docket Entry No. 250, pp. 1-3.
All page number citations are to the pagination imprinted by the
federal court's electronic filing system at the top of the
document.
2Indictment, Docket Entry No. 1.
United States District Court
Southern District of Texas
ENTERED
January 14, 2026
Nathan Ochsner, Clerk
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Defendant was charged with one count of conspiracy to commit health
care fraud in violation of 18 U.S.C. § 1349 (Count 1), eight counts
of health care fraud in violation of 18 U.S.C. § 1347 (Counts 2
through 9), and one count of engaging in monetary transactions in
property derived from specified unlawful activity in violation of
18 U.S.C. § 1957 (Count 16).3 Defendant chose to go to trial and
was ultimately convicted on all counts. 4 Upon his guilty verdict,
this court sentenced Defendant to 120 months in prison.5
Defendant appealed his sentence to the Fifth Circuit, arguing
that the court incorrectly applied the enhancements under U.S.S.G.
§ 2Bl.l(b)(2)(A)(i) for an offense involving more than 10 victims
and under U.S.S.G. § 2Bl.l(b)(11)(C)(i) for unauthorized use of a
means of identification unlawfully to obtain another means of
identification.6 The Fifth Circuit affirmed Defendant's conviction
and sentence. 7
Defendant then filed a § 2255 motion, arguing that "the
following violations deprived him of a fair trial: (1) the
Government offered evidence obtained from an unlawful search of
[his business], (2) the Government concealed favorable evidence,
3 Superseding Indictment, Docket Entry No. 119, pp. 5, 10-12.
4Verdict, Docket Entry No. 161, pp. 3-5; Judgment in a
Criminal Case, Docket Entry No. 250, pp. 1-2.
5 Judgment in a Criminal Case, Docket Entry No. 250, p. 3.
6 Opinion of the Fifth Circuit Court of Appeals, Docket Entry
No. 364, p. 2.
7 Id. at 3.
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i.e. the amount of money a coconspirator made from the fraud,
(3} [the FBI] abused [its] power, (4} the Government entered
unlawful plea agreements with [Defendant's] codefendants, (5} the
Government made racist remarks in its closing arguments, (6} the
evidence was insufficient to convict [Defendant], (7} [Defendant's]
trial and appellate counsel were ineffective, and (8) [Defendant's]
speedy trial rights were violated." 8 After carefully considering
Defendant's claim that he received ineffective assistance of
counsel, the court found that Defendant's counsel "investigated the
charges and evidence against [Defendant], he communicated the
Government's plea offer to [Defendant], and he ably represented
[Defendant] at trial." 9 After carefully considering Defendant's
remaining claims, the court found that they were "meritless and
mostly procedurally defaulted. 1110 The court denied Defendant's
§ 2255 motion and denied a certificate of appealability ("COA"} . 11
Defendant appealed the court's decision to deny a certificate of
appealability. 12 The Fifth Circuit denied Defendant's motion for
a COA.13
8Memorandum Opinion and Order, Docket Entry No. 396,
pp. 13-14.
9Id. at 43.
12Notice of Appeal, Docket Entry No. 399, p. 1.
13 0rder of the Fifth Circuit Court of Appeals, Docket Entry
No. 418, p. 3.
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On March 17, 2025, Defendant filed a Motion to Reopen his
habeas proceedings. 14
II. Analysis
Defendant has filed a motion to reopen his habeas proceedings,
arguing that there were procedural defects in his habeas
proceedings because (1) a procedural error occurred when the Court
of Appeals denied a COA without fully considering whether the
issues were debatable among jurists, and (2) his Sixth Amendment
rights were violated when his counsel did not raise a selective
prosecution challenge and failed to challenge an illegal search.15
"Federal Rule of Civil Procedure 60(b) permits 'a party to
seek relief from a final judgment, and request reopening of his
case, under a limited set of circumstances.'" Kemp v.
United States, 142 S. Ct. 1856, 1861 {2022) (quoting Gonzalez v.
Crosby, 125 S. Ct. 2641, 2645 (2005)). However, under the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
district courts lack jurisdiction to hear a successive habeas
motion unless there is "(l) newly discovered evidence that .
would be sufficient to establish by clear and convincing evidence
that no reasonable fact-finder would have found the movant guilty
of the offense; or (2) [when there is] a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
14Defendant's Motion to Reopen, Docket Entry No. 410.
15 Id . at 5, 16, 19.
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Court, that was previously unavailable." In re Robinson, 917 F.3d
856, 861-62 (5th Cir. 2019) (quoting 28 U.S.C. § 225S(h));
United States v. Vialva, 904 F.3d 356, 360 (5th Cir. 2018).
"'Because of the comparative leniency of Rule 60(b) [as compared to
AEDPAJ , petitioners sometimes attempt to file what are in fact
second-or-successive habeas petitions under the guise of Rule 60(b)
motions.'" Robinson, 917 F.3d at 862 (quoting In re Edwards, 865
F.3d 197, 203 (5th Cir. 2017)}. "Accordingly ' [a] federal court
examining a Rule 60(b} motion should determine whether it either:
(1) presents a new habeas claim . . or (2} attacks the federal
court's previous resolution of a claim on the merits. '" Id. at 86 3
(quoting Edwards, 865 F.3d at 203}. "A 'Rule 60(b} motion [that]
does either should be treated as a second-or-successive
habeas petition."' Id. at 863 (quoting Edwards, 865 F.3d at 204).
Therefore, "to bring a proper Rule 60(b} claim, a movant must show
'a non-merits-based defect in the district court's earlier decision
on the federal habeas petition.'" Id. at 862 (quoting Edwards, 865
F.3d at 204}.
A. A Rule 60(b) motion cannot be used to seek reconsideration of
a decision made by a different court.
Defendant argues that the Fifth Circuit's "COA denial process
was flawed in a manner that amounts to a defect in the integrity of
the habeas proceedings." 16
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However, Rule 60(b) only "allows a district court to correct
its own ruling prior to appeal, not those of another court." Estes
v. Ramirez, Civil Action No. 7:14-CV-69, 2014 WL 11698007, at *11
(S.D. Tex. June 13, 2014). Unless a defendant is seeking relief
from a default judgment issued by another court under
Rule 60(b)(4) , relief under Rule 60(b) must be "sought in the court
that rendered the judgment at issue." Harper Macleod Solicitors v.
Keaty & Keaty, 260 F.3d 389, 394 (5th Cir. 2001}.
Because Rule 60(b) provides no authority for this court "to
set aside an order issued by the Fifth Circuit," the court "lacks
jurisdiction to grant the relief request by [D]efendant."
United States v. Edmonds, Nos. 3:98-CR-0370-M, 3:02-CV-2132-M, 2011
WL 623114, at *1 (N.D. Tex. Jan. 24, 2011}.
B. Defendant presents new and successive claims regarding his
Sixth Amendment right to effective assistance of counsel.
In his motion to reopen habeas proceedings, Defendant argues
that there was a procedural defect in his habeas proceedings
because his Sixth Amendment rights were violated when (1) his
counsel did not raise a selective prosecution challenge and (2) his
counsel failed to challenge an illegal search.17
Defendant's Rule 60 (b) motion is a successive habeas petition.
First, Defendant's claim that his counsel failed to raise a
selective prosecution challenge was not raised in his§ 2255 motion
17 Id. at 5, 16, 19.
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and is therefore a "new habeas claim."18 Robinson, 917 F.3d at 863.
Additionally, Defendant's claim that his counsel failed to
challenge an illegal search is merely an attack on this court's
"'previous resolution of a claim on the merits.' "19 Id. (quoting
Edwards, 865 F.3d at 203-04). Therefore, because Defendant
presents "a new habeas claim," and a claim that attacks this
court' s " 'previous resolution of a claim on the merits,'" his
Rule 60 (b) motion "' should be treated as a second-or-successive
habeas petition.'" Id.
18Defendant argues that there is new evidence to support his
claim that his counsel was ineffective. Id. at 16, 21-22.
However, Defendant offers no proof of this claim. Additionally,
even if Defendant had new evidence, he must first present the
evidence to a panel of the Fifth Circuit to certify that it meets
the requirements to permit a successive § 2255 motion. 28 U.S.C.
§ 2255 (h).
Defendant argues that the court "swept aside" his claim that
his counsel failed to raise a selective prosecution claim.
Defendant's Motion to Reopen, Docket Entry No. 410, p. 18.
Defendant never alleged this claim in his § 2255 motion. See Order
of the Fifth Circuit Court of Appeals, Docket Entry No. 418, p. 2
("Furthermore, because he raises his claim that the Government
selectively and vindictively prosecuted him for the first time in
his COA pleadings, [the Fifth Circuit] lacks jurisdiction to
consider it.").
19Defendant raised this argument in his § 2255 motion.
Defendant's Motion to Vacate, Set Aside or Correct a Sentence Under
18 U.S.C. Section 2255, Docket Entry No. 373, pp. 22-23. Defendant
argues that there was a procedural defect in his habeas proceedings
because the court failed to address his claim that �is counsel
failed to investigate an illegal search. Defendant's Motion to
Reopen, Docket Entry No. 410, p. 23. However, the court did
address this claim in its order denying Defendant 1 s § 2255 motion.
Memorandum Opinion and Order, Docket Entry No. 396, p. 29 ("The
court concludes that it was not deficient for Saper to forego
filing a motion to suppress.").
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Because Defendant's Motion to Reopen is a second-or-successive
habeas petition, this court does not have jurisdiction.
United States v. Vialva, 904 F.3d at 360.
III. Conclusion and Order
For the reasons explained above, Defendant's Rule 6 O (b) Motion
to Reopen § 2255 Proceedings (Docket Entry No. 410) is DISMISSED
for a lack of jurisdiction.
SIGNED at Houston, Texas, on this 14th day of January, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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