United States v. Pivnick
1:19-cr-00464
S.D.N.Y.Jul 11, 2025Background
- Bryan Pivnick, currently incarcerated at FCI Fort Dix, filed a pro se challenge to his conviction from the Southern District of New York.
- The conviction was previously affirmed by the Second Circuit, which stated that Pivnick’s ineffective assistance of counsel claims were not adequately developed for appeal and should be raised in a 28 U.S.C. § 2255 motion.
- The Court notified Pivnick it would treat his application as a § 2255 motion and gave him the opportunity to withdraw or amend his filing.
- Pivnick responded that he did not want to proceed under § 2255, but instead wished to seek relief via a writ of error coram nobis, and requested more time to respond.
- Coram nobis is generally only available to those no longer in custody; Pivnick remains incarcerated, raising a question about the appropriateness of this remedy.
- The Court granted Pivnick additional time to submit an amended pleading but warned that failure to do so would lead to dismissal without prejudice.
Issues
| Issue | Pivnick's Argument | U.S. Argument | Held |
|---|---|---|---|
| Whether the challenge should proceed as a § 2255 motion | Does not want § 2255 route | § 2255 appropriate for those in custody | Not to treat current filing as § 2255 unless movant consents or amends |
| Whether writ of error coram nobis is available | Seeks coram nobis relief | Coram nobis only for those not in custody | Relief likely improper as movant still in custody |
| Request for extension of time to amend pleadings | Requests more time | No opposition noted | Extension granted, 60 days to amend |
| Issuance of certificate of appealability or IFP status | Not argued | Opposes as meritless | Certificate and IFP appeal status denied |
Key Cases Cited
- Fleming v. United States, 146 F.3d 88 (2d Cir. 1998) (coram nobis is an extraordinary remedy of last resort)
- Chaidez v. United States, 568 U.S. 342 (2013) (coram nobis available only when no longer in custody)
- Doe v. United States, 915 F.3d 905 (2d Cir. 2019) (standards for granting coram nobis relief)
- Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003) (collateral relief for non-custodial punishments by coram nobis)
- Graziano v. United States, 83 F.3d 587 (2d Cir. 1996) (standards for relief under § 2255)
- Coppedge v. United States, 369 U.S. 438 (1962) (standard for granting IFP on appeal)