How to Appeal a Federal Conviction

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

How do you appeal a federal conviction?

To appeal a federal conviction, file a written notice of appeal with the district clerk within 14 days after entry of judgment. The court of appeals then orders the record, sets a briefing schedule, and decides the case on the briefs or after argument. If the 14 days have run, the district court may still extend the time by up to 30 days for excusable neglect.

Key takeaways on appealing a federal conviction

• The notice of appeal goes to the district court, not the court of appeals, and it is due within 14 days — Fed. R. App. P. 4(b)(1)(A).
• Only the notice of appeal is jurisdictional. Under Rule 3(a)(2), “[a]n appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal.”
• If the deadline passed, Rule 4(b)(4) lets the district court extend it by up to 30 days for excusable neglect or good cause — “before or after the time has expired.”
• If you are in custody and filing yourself, the notice is timely on deposit in the institution’s legal mail system, not on receipt by the clerk — Rule 4(c)(1); Houston v. Lack, 487 U.S. 266 (1988).
• The appellant’s brief is due 40 days after the record is filed, not 40 days after the notice of appeal — Rule 31(a)(1). The transcript is what gates everything.
• If your lawyer was told to file an appeal and did not, that is a distinct claim with a distinct remedy — Roe v. Flores-Ortega, 528 U.S. 470 (2000).

The deadline, and the extension almost nobody mentions

This is the table to read before anything else on this page.

	The ordinary deadline	The extension
Rule	Fed. R. App. P. 4(b)(1)(A)	Fed. R. App. P. 4(b)(4)
The text	“In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.”	“Upon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).”
How long	14 days	Up to 30 additional days
Runs from	Entry of judgment on the criminal docket, or the government’s notice, whichever is later	Expiration of the original 14 days
Who decides	No discretion — it is the rule	The district court, in its discretion
Standard	None; it is automatic	Excusable neglect or good cause
Can it be sought after the deadline?	N/A	Yes — expressly, “before or after the time has expired”
Absolute outer limit	Day 14	Day 44 (14 + 30)
Filed where	District court	District court
Government’s equivalent	30 days — Rule 4(b)(1)(B)	Same Rule 4(b)(4)

Two things about that right-hand column matter enormously and are missing from almost every competing page.

First, Rule 4(b)(4) is not limited to motions made before the deadline. The rule says the court may act “before or after the time has expired.” A defendant on day 20 has not necessarily lost.

Second, it is discretionary and it is short. Thirty days is the ceiling, and “excusable neglect” is a real standard, not a formality. The remedy exists; it is not a safety net you can rely on.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: Fourteen days is calendar days, and it runs from entry on the docket, not from the sentencing hearing. Those two facts are responsible for more lost appeals than any legal error. If a judgment was entered and you are counting days, count them from the docket entry date and assume the deadline is sooner than you think.

How to count the 14 days correctly

More appeals are lost to arithmetic than to law, so it is worth doing this precisely. Time is computed under Fed. R. App. P. 26(a)(1), which for a period stated in days directs you to:

• “(A) exclude the day of the event that triggers the period” — the day the judgment is entered is day zero, not day one;
• “(B) count every day, including intermediate Saturdays, Sundays, and legal holidays” — these are calendar days, not business days; and
• “(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”

Worked example: judgment entered on Wednesday, March 4. March 4 is excluded. Day 1 is Thursday, March 5. Counting every calendar day, day 14 is Wednesday, March 18 — the deadline. Had day 14 fallen on a Saturday, the deadline would roll to the following Monday, or to Tuesday if that Monday were a legal holiday.

“Legal holiday” is defined in Rule 26(a)(6) as the statutory federal holidays — “New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day” — plus any day declared a holiday by the President or Congress, and, for periods measured after an event, any day declared a holiday by the state where the district court or the circuit clerk’s principal office sits.

One thing the rule does not do is give you extra days for mail. Rule 26(c) adds 3 days only “[w]hen a party may or must act within a specified time after being served.” The 14-day appeal period runs from entry of judgment, not from service of anything, so the three-day rule does not extend it. Assuming otherwise is a documented way to be three days too late.

Step 1: File the notice of appeal

Under Fed. R. App. P. 3(a)(1), an appeal as of right “may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4.”

The notice itself is short — usually one page. Rule 3(c)(1) requires only three things. The notice must:

• (A) “specify the party or parties taking the appeal by naming each one in the caption or body of the notice”
• (B) “designate the judgment—or the appealable order—from which the appeal is taken”
• (C) “name the court to which the appeal is taken”

It does not argue anything. It does not list issues. It does not need to identify what went wrong. Its only job is to be timely and to identify the case.

If it is filed in the wrong court, that is survivable. Rule 4(d) provides that when a notice of appeal “is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk,” and “[t]he notice is then considered filed in the district court on the date so noted.”

If you are the one filing it from custody

Rule 4(c)(1) codifies the prisoner mailbox rule for appeals. If the institution “has a system designed for legal mail,” an inmate confined there “must use that system” to get the benefit of the rule. The notice is timely “if it is deposited in the institution’s internal mail system on or before the last day for filing” and it is accompanied by either:

• a declaration under 28 U.S.C. § 1746 — or a notarized statement — “setting out the date of deposit and stating that first-class postage is being prepaid”; or
• “evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid.”

The rule descends from Houston v. Lack, 487 U.S. 266 (1988), where the Supreme Court held that a pro se prisoner’s notice is filed “at the moment of delivery to prison authorities for forwarding to the district court.” The Court’s reasoning was that “[u]nskilled in law, unaided by counsel, and unable to leave the prison, a pro se prisoner’s control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access—the prison authorities.” Houston itself arose in a habeas posture under Rule 4(a)(1); Rule 4(c) is what carries the principle into criminal appeals, and it adds the declaration requirement that Houston did not.

Use the legal mail system, keep the receipt, and include the § 1746 declaration. All three. For the full doctrine, see the prisoner mailbox rule.

Step 2: Understand what else the 14 days can hang on

The 14-day clock is not always triggered by the judgment alone. Rule 4(b)(3)(A) provides that if a defendant timely makes certain post-trial motions, “the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later.”

The motions that do this are:

Motion	Rule	Note
Judgment of acquittal	Fed. R. Crim. P. 29	—
New trial	Fed. R. Crim. P. 33	If based on newly discovered evidence, only if made no later than 14 days after entry of the judgment
Arrest of judgment	Fed. R. Crim. P. 34	—

Two related provisions prevent an early filing from being wasted. Rule 4(b)(2) provides that a notice filed after the court announces a decision but before entry of judgment “is treated as filed on the date of and after the entry.” And Rule 4(b)(3)(C) provides that “[a] valid notice of appeal is effective—without amendment—to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).”

One motion does not stop the clock. Under Rule 4(b)(5), “[t]he filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.” A pending motion to correct a clear sentencing error does not buy time.

Step 2a: The first month, in order

Three obligations cluster in the two weeks after the notice of appeal, and two of them share the same 14-day deadline. Missing them is not jurisdictional, but it invites an order to show cause.

When	What	Who	Rule
Within 14 days of entry of judgment	File the notice of appeal with the district clerk	Defendant or counsel	Fed. R. App. P. 4(b)(1)(A); 3(a)(1)
Day 15–44, only if the deadline was missed	Move the district court to extend for excusable neglect or good cause	Defendant or counsel	Rule 4(b)(4)
Within 14 days after filing the notice	File a representation statement with the circuit clerk naming the parties the attorney represents on appeal	The attorney who filed the notice	Rule 12(b)
Within 14 days after filing the notice	Order the transcript from the reporter, or file a certificate that none will be ordered	Appellant	Rule 10(b)(1)
After the record is filed	Appellant’s brief due — 40 days	Appellant	Rule 31(a)(1)

The representation statement is a small filing with a large function: it is how the court of appeals learns who its lawyer of record is. Under Rule 12(b), “the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal.” If trial counsel intends to withdraw and appellate counsel is being substituted, this is the point at which that has to be sorted out — not later.

Step 3: Order the transcript

This is the step that determines how long everything else takes, and it belongs to the appellant.

Under Fed. R. App. P. 10(b)(1), within 14 days after filing the notice of appeal the appellant must either order from the reporter a transcript of the proceedings not already on file, or file a certificate stating that no transcript will be ordered.

Rule 10(b)(2) adds the requirement that decides sufficiency appeals: if the appellant intends to argue that a finding or conclusion is unsupported by or contrary to the evidence, the appellant “must include in the record a transcript of all evidence relevant to that finding or conclusion.” An appellant who orders only the sentencing transcript and then attacks the sufficiency of the trial evidence has a problem no brief can fix.

Where a transcript is genuinely unavailable, Rule 10(c) allows the appellant to prepare a statement of the evidence “from the best available means, including the appellant’s recollection,” which the appellee may amend and the district court must settle and approve before it becomes part of the record.

Transcript production is the single most common source of delay in a federal appeal, and it is usually nobody’s fault. A multi-week trial produces thousands of pages, court reporters have other cases, and extensions are routinely granted. See how long does an appeal take.

Step 4: The record on appeal

Under Fed. R. App. P. 10(a), the record consists of the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries.

That is the entire universe of what the court of appeals may consider. What is not in it:

• Anything that happened outside court and was never filed
• Conversations with your attorney
• Witnesses who were never called and evidence never offered
• Facts you learned after trial
• Anything about your conduct in custody since sentencing

Rule 10(e) allows correction of genuine omissions or misstatements — material that was before the district court but was left out of the record on appeal. It is not a mechanism for adding new material.

This limit is why so many real grievances have to go somewhere other than a direct appeal. If the problem is what your lawyer failed to do, the proof of it is almost never in the trial record — which is precisely why Massaro v. United States, 538 U.S. 500 (2003), holds that ineffective-assistance claims may be raised on collateral review “whether or not the petitioner could have raised the claim on direct appeal.” See grounds for appeal for the full line between the two.

Step 5: Briefing

Under Fed. R. App. P. 31(a)(1):

“The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant’s brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellee’s brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.”

Note what the appellant’s clock runs from: the filing of the record, not the notice of appeal. Until the transcript is complete and the record is filed, the 40 days has not started. This is the answer to the question every family asks around month four — nothing is wrong, and the brief is not late, because the clock has not begun.

Extensions are common in criminal appeals and are usually granted for good cause, particularly where the record is voluminous or counsel was recently substituted. Each one adds real time.

Failing to file is a different matter. Rule 31(c): “If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal.”

What goes in the brief is prescribed by Fed. R. App. P. 28(a), which requires ten components in a fixed order, including a jurisdictional statement with “the filing dates establishing the timeliness of the appeal” and, for each issue, “a concise statement of the applicable standard of review.” That last requirement is why the standard of review appeal is not an academic topic — the rule makes it a structural element of every argument in the brief.

Step 5a: The appendix

Alongside the brief, the appellant prepares an appendix — the excerpts of the record the panel will actually have in front of it. Under Fed. R. App. P. 30(a)(1), the appellant “must prepare and file an appendix to the briefs containing”:

• “(A) the relevant docket entries in the proceeding below;”
• “(B) the relevant portions of the pleadings, charge, findings, or opinion;”
• “(C) the judgment, order, or decision in question; and”
• “(D) other parts of the record to which the parties wish to direct the court’s attention.”

Two practical points follow. Under Rule 30(a)(2), “[m]emoranda of law in the district court should not be included in the appendix unless they have independent relevance” — reproducing the trial brief is not a substitute for writing the appellate one. And the same subsection provides that “[p]arts of the record may be relied on by the court or the parties even though not included in the appendix,” so an omission from the appendix does not put record material out of reach.

The appendix is where an appeal quietly succeeds or fails at the level of persuasion. A panel reading the appellant’s brief will follow its record citations into the appendix; if the pages that support the argument are not there, the argument reads as assertion.

Step 6: Oral argument, or submission on the briefs

Under Fed. R. App. P. 34(a)(2), oral argument must be allowed unless a panel of three judges unanimously agrees that argument is unnecessary for one of three stated reasons: the appeal is frivolous, the dispositive issues have been authoritatively decided, or the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by argument.

In practice, most criminal appeals are decided without argument. Of 18,608 appeals terminated on the merits in the 12 months ending September 30, 2025, 13,752 were submitted on the briefs and 4,856 were argued (AO Table B-4A).

Not getting argument is not a signal that the appeal is weak. It is the normal course, and it follows from arithmetic rather than from any view of your case: the twelve regional circuits received 41,824 filings in fiscal year 2025 against 167 authorized judgeships.

Where argument is granted, it is short — typically ten to fifteen minutes a side — and it is mostly questions. It is not a second opening statement, and counsel who plans to deliver a prepared speech will be interrupted in the first minute. Its practical value is the chance to answer the panel’s actual concerns, which are frequently not the ones the briefs anticipated.

Whether argument is granted is also outside anyone’s control. Some circuits screen a large share of criminal appeals to non-argument calendars as a matter of routine practice, and a request for argument is not a motion the court is obliged to grant.

Step 7: The decision, and the mandate

The panel issues a written decision — a published opinion, an unpublished opinion, or an order. The case is not over when it does.

Under Fed. R. App. P. 41(b), “[t]he court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later.”

The mandate is what actually returns jurisdiction to the district court. Under Rule 41(a) it “consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs,” and under Rule 41(c) it “is effective when issued.”

Between the decision and the mandate sits the rehearing window: under Fed. R. App. P. 40(d)(1), a criminal defendant’s petition for panel rehearing or rehearing en banc is due within 14 days after judgment is entered. Rule 40 now governs both forms of rehearing — former Rule 35 was transferred into it by the 2024 amendment. See petition for rehearing.

If a certiorari petition is planned, Rule 41(d) allows a motion to stay the mandate, which “must show that the petition would present a substantial question and that there is good cause for a stay,” and the stay “must not exceed 90 days” absent extension. See certiorari petition.

What happens if the 14 days already ran

This is the section most guides omit, and it is the reason many people are reading this page.

First: confirm the actual date. The clock runs from entry of the judgment on the criminal docket — not from the sentencing hearing, and not from when you received a copy. Pull the docket and find the entry date. People are frequently less late than they think, and occasionally not late at all.

Second: ask for the Rule 4(b)(4) extension immediately. The district court may extend by up to 30 days for excusable neglect or good cause, and it may do so “before or after the time has expired.” This is discretionary, so the motion has to actually explain the neglect. It is also short — after day 44 it is gone.

Third: if counsel failed to file, that is a separate claim with a separate remedy. This is the most important thing on this page for a reader who is genuinely out of time.

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that “[a] lawyer who disregards a defendant’s specific instructions to file a notice of appeal acts in a professionally unreasonable manner.” Where counsel did not receive specific instructions, the question becomes whether counsel had a duty to consult — which the Court defined as “advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes.”

The prejudice showing is unusually favorable. Because the complete forfeiture of an appellate proceeding is “[t]he even more serious denial of the entire judicial proceeding,” it “demands a presumption of prejudice because no presumption of reliability can be accorded to judicial proceedings that never took place.” A defendant does not have to prove the appeal would have won. He has to show he would have taken it.

That claim is brought under 28 U.S.C. § 2255, not by a late notice of appeal, and the remedy where it succeeds is typically re-entry of the judgment so a timely appeal can be taken. It has its own one-year deadline. See my lawyer did not file an appeal and post-conviction deadlines.

Fourth: do not assume a missed direct appeal ends everything. Direct appeal and collateral review reach different claims. Losing the first does not by itself forfeit the second, though it can create procedural default problems for issues that could have been raised on appeal. See direct appeal vs 2255 and procedural default.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: When someone calls from inside and says “my lawyer never filed my appeal,” the first task is documentary, not legal: get the docket, get the judgment date, and get whatever letter or record exists of what was asked of counsel and when. A Flores-Ortega claim lives or dies on whether there is evidence the client asked. A dated letter in the file is worth more than a clear memory.

If your appellate lawyer says there is no issue

If appointed appellate counsel reviews the record and concludes the appeal is wholly frivolous, counsel may move to withdraw — but under Anders v. California, 386 U.S. 738 (1967), that “request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.”

Two things follow, and both matter. The court — not your lawyer — decides whether the appeal is frivolous, and it must examine the whole record to do it. And you have the right to file your own response raising any points you choose, within the time the court sets.

That deadline is usually short, and the response does not have to be lawyerly. What helps is specificity: identifying the hearing, the ruling, and what you believe was wrong with it, rather than describing the case as generally unfair. If you gave your lawyer a list of issues that do not appear in the brief, say what they were.

An Anders brief is also a reasonable moment to seek a second opinion from counsel who has not already concluded there is nothing in the record. See anders brief.

What appointing counsel looks like

If you cannot afford appellate counsel, 18 U.S.C. § 3006A provides for appointment. Representation under the Criminal Justice Act extends through appeal, and trial counsel appointed under the Act ordinarily remains responsible for filing the notice of appeal and for the appeal itself unless relieved and replaced.

Appointed does not mean lesser. Federal defender offices and CJA appellate panels include some of the most experienced federal appellate practitioners in the country, and many defender offices run dedicated appellate units. Roughly half of all federal appellate filings are by pro se litigants, and the appointment system exists precisely so that a defendant with an appealable issue is not left among them.

Whether the same lawyer should handle the appeal is a separate question, and there is one situation where the answer is clearly no: a lawyer cannot argue his or her own ineffectiveness. If your central complaint is about what your trial lawyer did or failed to do, that claim will not be identified, investigated, or raised by the lawyer who would be its subject — and it belongs in a § 2255 motion rather than the appeal in any event.

Substitution of counsel for the appeal is routine and is normally handled in the first two weeks. See criminal appeals lawyer.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal appellate and post-conviction firm founded in 2019, running a national practice on an intentionally small caseload. Elizabeth Franklin-Best is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for white-collar litigation.

On a new appellate matter, the first work is not brief-writing. It is reading the record, fixing the deadline, and sorting which claims belong on direct appeal and which belong in a § 2255 motion. Getting that sorting wrong at the outset is expensive later.

Talk to a federal appeals attorney

If a federal judgment was recently entered — or if you think the deadline may have passed — the timing question comes first.

Schedule a consultation · Phone: (843) 620-1100 · Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204

Elizabeth Franklin-Best, P.C. represents clients in federal courts nationwide. Consultations are confidential.

Related guides on starting an appeal

• Federal appeals lawyer — the hub: how a federal criminal appeal works end to end
• Federal appeals court — which circuit will hear it, and its local rules
• Criminal appeals lawyer — choosing who files and who briefs
• What happens after an appeal is granted — the dispositions and the mandate
• Interlocutory appeal — if the case has not reached final judgment
• Preserving error for appeal — what determines whether these steps are worth taking

Frequently Asked Questions About Appealing a Conviction

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026