Pivnick v. United States
- P. Castel
- 1:25-cv-02810
- U.S. District Court · Southern District of New York
- 5
In Pivnick v. United States, Judge Castel ordered amendment of Bryan Pivnick’s federal post-conviction motion without deciding its merits.
Bryan Pivnick must decide within 60 days whether to withdraw his application or file an amended motion addressing all claims and the apparent filing deadline. The United States was not required to respond at this stage.
What happened
In Pivnick v. United States, Bryan Pivnick, who is incarcerated and representing himself, challenged his federal conviction. The court treated his application as a motion under a federal law that allows prisoners to challenge their convictions or sentences.
The court said Pivnick’s application did not clearly identify all of his grounds for relief and appeared to have been filed after the one-year deadline. The court gave him an opportunity to provide all of his claims, supporting facts, and any facts showing that the deadline should be extended.
Judge Castel granted Pivnick 60 days to withdraw the application or file an amended motion. The court did not decide whether Pivnick is entitled to relief, required no response from the government at this stage, declined to issue an appeal certificate, and denied permission to appeal without paying filing fees.
The detailed version
- Pivnick v. United States · No. 1:25-cv-02810
- P. Castel
- Apr. 10, 2025
Background
Bryan Pivnick, who is incarcerated at FCI Fort Dix and is representing himself, filed a letter-motion challenging the judgment in his federal criminal case. The court treated the application as a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence on specified constitutional, statutory, jurisdictional, or other grounds.
Reasons for the Order
The court explained that a motion under § 2255 must identify every available ground for relief, provide the facts supporting each ground, and state the requested relief. It was unclear whether Pivnick intended to raise additional grounds. Because a prisoner generally has one opportunity to present all § 2255 claims, the court allowed him to file an amended motion containing all grounds and supporting facts.
The court also stated that the application appeared to be untimely. The Second Circuit affirmed Pivnick’s conviction on May 19, 2023, and the court said the conviction appeared to have become final about 90 days later, on August 18, 2023. Under the usual one-year deadline, the motion therefore appeared due by about August 18, 2024. Pivnick signed his application on March 4, 2025, and had not alleged facts showing that another statutory deadline applied. The court directed him to allege facts showing diligent pursuit of his rights and an extraordinary circumstance that prevented timely filing if he seeks equitable tolling, which is a court-created extension of a filing deadline in appropriate circumstances.
Disposition
The court construed the application as a § 2255 motion and granted Pivnick leave to either withdraw it or file an amended § 2255 motion within 60 days of the order. The amended motion must include all grounds for relief, supporting facts, and facts addressing timeliness or equitable tolling. If Pivnick does not withdraw the motion or comply with the order, the application will remain designated as a § 2255 motion, unless he shows good cause for failing to comply. The court did not require an answer from the government at this time.
The court also stated that a certificate of appealability would not issue because Pivnick had not made a substantial showing that a constitutional right was denied. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. Judge P. Kevin Castel did not decide the merits of Pivnick’s conviction challenge.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.