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Jiminian v. Nash

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Submitted: January 8, 2001

Petitioner Benito Jiminian applied pursuant to 28 U.S.C. � 2244 for an order authorizing the United States District Court for the Southern District of New York to consider a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. � 2255. In an order filed January 11, 2001, we denied Jiminian’s application, indicating that this opinion would follow.

On December 11, 2000, Benito Jiminian, pro se, applied pursuant to 28 U.S.C. � 2244 for an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. � 2255. In his application, Jiminian conceded that he had a prior � 2255 motion dismissed on the merits and that he could not meet the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) certification requirements for filing a second or successive � 2255 motion. Nonetheless, Jiminian sought to have his case remanded to the district court with instructions that the court consider his present claim under 28 U.S.C. � 2241 on the ground that, if he were not allowed to proceed under � 2241, the AEDPA’s gate-keeping requirements would be unconstitutional as applied to his case. We denied Jiminian’s application in an order filed January 11, 2001. See 28 U.S.C. � 2244(b)(3)(D) (requiring the courts of appeals to grant or deny authorization to file a second or successive � 2255 motion “not later than 30 days after the filing of the motion”). We also stated that this opinion would follow.

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