When a federal sentence is pronounced, the case may feel finished. Legally, it has split into several possible paths, each with its own court, record, remedy, and deadline.
A direct appeal usually asks the court of appeals to correct an error already preserved in the trial or sentencing record. If your appeal involves an incorrect guideline calculation, disputed enhancement, procedural sentencing error, or another issue arising from the original hearing, speak with a federal sentencing attorney before the appellate record and deadlines are evaluated.
A motion under 28 U.S.C. § 2255 returns to the sentencing court and may raise constitutional, jurisdictional, and other fundamental defects—including ineffective assistance that requires evidence outside the existing record.
Choosing the wrong path does not stop the right clock. A notice of appeal is generally due within 14 days, while a § 2255 motion usually has a one-year limitation period calculated under a different set of rules.
Direct appeal and § 2255 are different forms of review
Neither proceeding is a second trial. They ask different courts to review different kinds of claims under different standards.
| Feature | Direct criminal appeal | Motion under 28 U.S.C. § 2255 |
|---|---|---|
| Where it begins | Notice filed in the district court; appeal proceeds in the court of appeals | Motion filed in the federal court that imposed the sentence |
| Usual deadline | 14 days after the relevant judgment or order is entered | One year from the latest applicable date in § 2255(f) |
| Main record | Trial, plea, and sentencing record already created | Existing record plus permitted affidavits, documents, discovery, or hearing evidence |
| Typical claims | Trial rulings, statutory interpretation, sufficiency, preserved constitutional issues, and sentencing error | Ineffective assistance, jurisdictional defects, new retroactive constitutional rules, and other fundamental collateral claims |
| New evidence | Generally not considered | Sometimes considered, but discovery and a hearing are not automatic |
| Appointed counsel | Available on a first appeal as of right for an eligible defendant | No general constitutional right, although appointment may be permitted and is required for a qualifying person when an evidentiary hearing is warranted |
| Possible relief | Affirmance, reversal, acquittal for insufficient evidence, new trial, or resentencing | Discharge, resentencing, new trial, or correction of the sentence |
A § 2255 motion is not a substitute for issues that should have been raised on direct appeal. A claim omitted from the appeal may face procedural default unless an exception applies.
These rules apply across federal prosecutions, including white-collar cases, mail fraud charges, and other federal criminal matters. The available issues still depend on the record and rulings in the individual case.
The 14-day notice-of-appeal deadline
Under Federal Rule of Appellate Procedure 4(b), a defendant’s notice of appeal must be filed in the district court within 14 days after the later of the entry of the judgment or order being appealed or the government’s notice of appeal. The judgment or order is “entered” when it appears on the criminal docket.
The notice is short and does not need to contain the full appellate argument. Its purpose is to preserve appellate review while counsel obtains transcripts, examines the record, and develops the issues.
Sentencing and entry of judgment are different moments
The judge ordinarily announces the sentence before the written judgment is entered. Rule 4(b) measures the usual deadline from docket entry of the judgment, but waiting for paperwork in the mail can consume much of the available time.
A notice filed after the court announces the sentence but before entry of judgment is treated as filed after entry. That rule allows counsel to protect the appeal without waiting for the written judgment.
The extension is limited
The district court may extend the filing period for excusable neglect or good cause. The extension cannot exceed 30 days from the expiration of the original Rule 4(b) period.
Rule 4(b) is a mandatory claim-processing rule rather than a jurisdictional limit, but a defendant should not depend on the government overlooking a late filing. When the government properly invokes the rule, an untimely appeal can be dismissed.
Not every post-trial motion pauses the clock
Certain timely motions can change when the notice is due:
- Rule 29 motion: A timely motion for judgment of acquittal can delay the appeal period until the court enters the order resolving it.
- Rule 33 motion: A timely new-trial motion can affect the deadline, but a motion based on newly discovered evidence does so only if filed no later than 14 days after entry of judgment.
- Rule 34 motion: A timely motion to arrest judgment can alter the appeal deadline.
- Rule 35(a) motion: A motion to correct a sentence for clear error does not suspend the time for appealing the judgment.
The fact that Rule 33 allows some newly discovered evidence motions within three years of the verdict does not mean a later Rule 33 filing revives or pauses the direct-appeal deadline. Each deadline must be calculated separately.
Counsel must follow a clear instruction to appeal
In Garza v. Idaho, the Supreme Court held that counsel performed deficiently by disregarding clear instructions to file notices of appeal, even though the defendant had signed appeal waivers. The defendant—not counsel—has the ultimate authority to decide whether to take an appeal.
If counsel failed to file after a clear request, a § 2255 claim may seek restoration of the lost appeal. That issue is different from whether particular arguments will ultimately survive the plea agreement’s waiver.
How a federal appeal is decided
A direct appeal is built from the district-court record: pleadings, exhibits, transcripts, rulings, objections, the presentence report, sentencing submissions, and judgment. The court of appeals ordinarily does not receive new witnesses or retry credibility.
Most of the work happens in written briefs. Oral argument is not guaranteed, and a panel may decide the case on the record and briefing alone.
The standard of review can decide the issue
The same alleged error can receive very different treatment depending on what the issue is and whether counsel preserved it.
| Standard | Common use | What the appellate court asks |
|---|---|---|
| De novo | Legal questions and many guideline interpretations | What is the correct legal rule, without deference to the district court’s legal conclusion? |
| Clear error | Historical facts and many guideline fact findings | Is the district court’s finding firmly mistaken based on the record? |
| Abuse of discretion | Evidentiary rulings and many procedural decisions | Did the court apply the wrong rule, rely on an improper factor, or make an unreasonable judgment? |
| Plain error | Issues not properly preserved | Was there a clear or obvious error affecting substantial rights that seriously affected the fairness, integrity, or public reputation of judicial proceedings? |
| Sufficiency review | Challenge to evidence supporting a conviction | Could a rational factfinder, viewing the evidence in the government’s favor, find every element beyond a reasonable doubt? |
Plain-error review has four separate requirements, and satisfying the first three does not require the court to correct the error. The final step asks whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Preservation changes the fight
A clear objection tells the district court what is wrong and creates a record for review. Without it, an issue that might have received de novo, clear-error, or abuse-of-discretion review may be limited to plain error.
Sentencing issues illustrate the difference. A disputed guideline interpretation may receive fresh legal review, while an unchallenged factual enhancement may require the defendant to satisfy every part of the plain-error test.
Our federal sentencing defense work focuses on guideline calculations, enhancements, objections, mitigation, and preservation of issues that may later become important on appeal.
Our federal sentencing and mitigation work addresses this problem before judgment when possible. On appeal, we identify the objection, ruling, evidence, and standard of review for each proposed issue rather than treating the sentence as one broad complaint.
A proven error may still be harmless
An appellate court will not reverse for an error that did not affect substantial rights. The precise harmless-error test and burden depend on whether the error was constitutional, nonconstitutional, or structural.
This is why identifying an incorrect ruling is only part of the brief. The appellant must also explain how the error affected the verdict, plea, sentence, or fairness of the proceeding under the governing standard.
Appeal waivers after the Supreme Court’s 2026 Hunter decision
Many federal plea agreements waive some rights to appeal the conviction or sentence. The first task is to read the exact language because waivers vary, preserve different exceptions, and may not cover the issue a defendant wants to raise.
A waiver generally must be knowing and voluntary. Claims concerning the validity of the plea or waiver, a government breach, and issues expressly reserved in the agreement require separate analysis.
In Hunter v. United States, decided in June 2026, the Supreme Court rejected the Fifth Circuit’s former rule limiting nonenforcement mainly to ineffective assistance affecting the waiver and sentences above the statutory maximum. The Court held that even a valid appeal waiver is unenforceable when enforcement would produce a miscarriage of justice by leaving an egregious error that would bring the judicial system into disrepute.
The Hunter exception is narrow, not a general fairness exception. The Court remanded for the Fifth Circuit to apply the standard, so the agreement, alleged error, and developing post-Hunter case law all matter.
An appeal waiver also does not erase counsel’s duty under Garza to file a requested notice. Filing preserves the appeal; the court of appeals later decides whether the waiver covers the claims and whether it should be enforced.
A collateral-review waiver is a separate question
Some plea agreements also waive the right to file a § 2255 motion. The scope and enforceability of that clause must be examined separately from an appeal waiver.
An ineffective-assistance allegation does not automatically defeat every collateral waiver. The claim’s subject, the waiver’s wording, the plea’s validity, and current circuit law determine whether review remains available.
What a § 2255 motion can challenge
Section 2255 permits a person in federal custody to challenge a sentence imposed in violation of the Constitution or federal law, imposed without jurisdiction, exceeding the maximum authorized by law, or otherwise subject to collateral attack. Relief is reserved for defects serious enough to justify disturbing a final judgment.
The sentencing court reviews the motion. If the motion, files, and record do not conclusively show that the person is entitled to no relief, the statute provides for a hearing and factual findings.
Ineffective assistance under Strickland
Under Strickland v. Washington, a defendant must prove both deficient performance and prejudice. Deficient performance means representation below an objective standard of reasonableness, while prejudice ordinarily means a reasonable probability that the result would have been different without counsel’s error.
Courts presume that counsel acted reasonably and avoid judging strategy only with hindsight. A claim therefore needs specific acts or omissions, supporting evidence, and a clear explanation of how the failure changed the case.
Potential issues may include:
- Failure to investigate: Counsel ignored identified evidence, records, defenses, or witnesses without a reasonable strategic basis.
- Incorrect plea advice: Materially wrong advice affected whether the defendant would have pleaded guilty or proceeded to trial.
- Failure to communicate an offer: Counsel did not convey a formal plea offer or gave deficient advice that caused its loss.
- Failure to file a requested appeal: Counsel disregarded a clear instruction to file a notice, the issue addressed in Garza.
- Sentencing failure: Counsel missed a meritorious objection and there is a reasonable probability of a different sentence.
- Conflict of interest: Counsel labored under a conflict that affected the representation under the governing constitutional standard.
An affidavit saying counsel “should have done more” is rarely enough. Claims based on an uncalled witness, for example, usually need reliable evidence of what the witness would have said and why it could have changed the result.
§ 2255 is broader than ineffective assistance—but not another appeal
The motion can address certain jurisdictional, constitutional, and fundamental statutory errors. Claims that were decided on direct appeal or could have been raised there face additional barriers.
A routine disagreement with a guideline calculation usually does not become cognizable merely by labeling it a § 2255 claim. The motion must fit the statute and the rules governing collateral review.
Calculating the one-year § 2255 limitation period
Section 2255(f) starts the one-year period from the latest of four possible dates:
- Finality: The date the judgment of conviction becomes final.
- Government impediment: The date an unlawful government-created barrier to filing is removed, if the barrier prevented the motion.
- New Supreme Court right: The date the Supreme Court initially recognizes a new right that is later made retroactively applicable to cases on collateral review.
- New facts: The date supporting facts could have been discovered through due diligence.
The trigger involving new facts concerns the discovery of facts, not the date a person learns their legal significance. The new-right trigger requires a Supreme Court right and retroactive application; a helpful lower-court decision does not automatically restart the year.
When a conviction becomes final
If no direct appeal is filed, finality usually occurs when the time for filing that appeal expires. If the court of appeals decides the case, finality generally occurs when the time to seek Supreme Court review expires or, if a petition is filed, when the Supreme Court completes review.
The calculation can change when there is an amended judgment, resentencing, reinstated appeal, or unresolved count. The docket and mandate should be checked rather than estimating from memory.
Equitable tolling is possible but demanding
Equitable tolling may apply when a person pursued rights diligently and an extraordinary circumstance prevented timely filing. Ordinary confusion, lack of legal training, or work on another filing usually does not satisfy that standard by itself.
The prison-mailbox rule may treat a properly prepared motion as filed when an incarcerated person deposits it in the institution’s legal-mail system. Proof of the date, postage, declaration, and compliance with the institution’s system should be preserved.
Procedural barriers in § 2255 proceedings
A potentially strong constitutional claim can fail before the court reaches its facts. Post-conviction work therefore begins with timeliness, default, waiver, prior filings, and the requested remedy.
Procedural default
A claim that could have been raised on direct appeal but was not is generally defaulted. Common gateways include cause and actual prejudice or a qualifying showing of actual innocence, each of which carries its own demanding standard.
Ineffective-assistance claims are usually raised under § 2255 because they often require evidence outside the trial record. They are not automatically valid simply because direct appellate review was unavailable.
Screening, discovery, and evidentiary hearings
The court first reviews the motion and existing record and may dismiss it if the materials plainly show no entitlement to relief. Discovery requires good cause, and the court may expand the record with authenticated documents, exhibits, sworn answers, or affidavits.
Under the Rules Governing § 2255 Proceedings, a judge must appoint counsel for a financially eligible person when an evidentiary hearing is warranted. The court may appoint counsel earlier when the interests of justice support it, including when effective authorized discovery requires counsel.
Certificate of appealability
A person cannot appeal the denial of § 2255 relief without a certificate of appealability. Under 28 U.S.C. § 2253(c), the applicant must make a substantial showing of the denial of a constitutional right, and the certificate must identify the qualifying issues.
The district court must issue or deny a certificate when entering an adverse final order. If it refuses, the applicant may request one from the court of appeals, but a timely notice of appeal is still required.
Second or successive motions
Before filing a second or successive § 2255 motion, the applicant must obtain authorization from the court of appeals. Section 2255(h) permits authorization only for:
- Newly discovered evidence: Evidence that, viewed with the record as a whole, would establish by clear and convincing evidence that no reasonable factfinder would have found the person guilty.
- A new constitutional rule: A previously unavailable rule of constitutional law made retroactive to collateral cases by the Supreme Court.
A filing is not necessarily “second or successive” merely because an earlier document existed; the judgment challenged and disposition of the earlier motion matter. That classification should be resolved before filing because an unauthorized successive motion leaves the district court without authority to consider the merits.
§ 2241 is not a general workaround
In Jones v. Hendrix, the Supreme Court held that § 2255’s saving clause does not permit a federal prisoner to use a § 2241 petition merely because an intervening statutory decision supports the claim and § 2255(h) blocks a successive motion. The inability to satisfy the successive-motion gate does not, by itself, make § 2255 inadequate or ineffective.
This does not eliminate every use of § 2241. It does mean that the statute cannot be treated as a routine backup plan after a first § 2255 motion.
Other remedies after a federal conviction
An appeal and § 2255 motion are not the only possible filings. Each alternative has a narrow purpose and cannot be used simply to avoid the requirements of another remedy.
Rule 33 motion for a new trial
Under the Federal Rules of Criminal Procedure, a motion based on newly discovered evidence must generally be filed within three years after the verdict or finding of guilt. A motion based on another ground must be filed within 14 days after the verdict or finding of guilt.
New evidence must satisfy more than the deadline. Courts examine diligence, admissibility, whether the evidence is merely cumulative or impeaching, and whether it would probably produce an acquittal under the governing circuit standard.
Rule 35 sentence correction or reduction
Rule 35(a) permits the sentencing court to correct an arithmetical, technical, or other clear error within 14 days after sentencing. “Sentencing” means the oral announcement, and the rule is not a broad opportunity to reconsider the sentence.
The narrow Rule 35(a) question should be separated from broader federal sentencing and mitigation arguments that belonged at the original hearing or on appeal.
Rule 35(b) allows the government to seek a reduction for substantial assistance, subject to its timing and statutory requirements. A defendant cannot file the government’s substantial-assistance motion on the government’s behalf.
Sentence reduction under § 3582(c)
Section 3582(c) allows limited sentence modifications. Compassionate release under § 3582(c)(1)(A) requires the administrative step stated in the statute, consideration of § 3553(a), and extraordinary and compelling reasons consistent with governing law.
Section 3582(c)(2) may permit a reduction when the Sentencing Commission makes an applicable guideline amendment retroactive, an issue that may overlap with federal sentencing review. Neither provision ordinarily allows the court to retry the conviction or decide claims reserved for direct appeal or § 2255.
Executive clemency
A pardon or commutation is a discretionary executive remedy, not judicial error correction. Federal applications are handled through the Office of the Pardon Attorney, and the standards differ from those applied on appeal or collateral review.
Release while a federal appeal is pending
Release after conviction is governed by a stricter rule than pretrial release. Under 18 U.S.C. § 3143(b), detention is the starting point.
The release motion should be coordinated with the federal sentencing record and the issues proposed for appeal.
The court generally must find by clear and convincing evidence that the person is not likely to flee or pose a danger. It also must find that the appeal is not for delay and raises a substantial question likely to result in reversal, a new trial, a noncustodial sentence, or a reduced sentence shorter than the expected appeal process.
Additional detention rules apply to certain offenses. Filing a notice of appeal does not itself postpone the prison-reporting date or create a right to remain released.
What to do immediately after judgment
The first task is not writing the final brief. It is preserving every deadline and collecting the documents needed to decide what should be filed.
Practical steps include:
- Confirm docket entry: Obtain the written judgment and record the date it was entered on the criminal docket.
- Give clear appeal instructions: Tell counsel in writing if an appeal is requested and retain proof of the communication.
- Obtain the plea agreement: Review every appeal and collateral-review waiver rather than relying on a summary from memory.
- Preserve the record: Keep motions, orders, exhibits, transcripts, the presentence report, objections, sentencing memoranda, and correspondence with counsel.
- Create a complete timeline: Record the verdict, sentencing, judgment, post-trial motions, notice of appeal, appellate decision, mandate, and any Supreme Court filing.
- Do not assume another motion stops time: Rule 33, Rule 35, compassionate release, grievance, records request, or clemency application may leave another deadline running.
- Identify off-record evidence: Save messages, letters, witness information, or records supporting an ineffective-assistance claim without contacting or pressuring witnesses.
If the 14-day deadline may still be open, filing the notice can preserve options while the case is reviewed. The detailed legal arguments are developed later in the appellate brief.
How Keith & Lorfing approaches post-conviction review
Keith & Lorfing focuses its practice in West Texas, with offices in Abilene, Lubbock, Midland, and San Angelo. Our lawyers bring more than 75 years of combined experience and more than 500 jury trials to the work.
Russell Lorfing’s experience as a former federal prosecutor in Lubbock informs how we evaluate preserved objections, government arguments, plea language, sentencing records, and claims involving trial counsel. We begin by identifying the remedy, deadline, waiver, standard of review, and evidence available for each issue.
Our federal criminal defense and federal sentencing work also provides context for how the record was built before judgment. Post-conviction review is demanding, so we separate potentially viable issues from arguments that the governing rules will not permit.
Talk with a West Texas federal defense lawyer
If judgment was recently entered or a § 2255 deadline may be approaching, exact dates matter more than estimates. Call Keith & Lorfing at (325) 480-8100 or use our contact page to request a free consultation.
Frequently asked questions
What happens if the 14-day appeal deadline was missed?
Rule 4(b) allows a limited extension of no more than 30 days from expiration of the original period upon a finding of excusable neglect or good cause. After that window, possible relief may depend on whether counsel disregarded a clear request to appeal and whether a timely § 2255 claim can restore the lost proceeding.
Can a direct appeal and § 2255 motion proceed together?
Usually, the district court will not decide a § 2255 motion while the direct appeal is pending because the appeal may change the judgment or resolve the issues. Exceptional circumstances can alter that practice, but filing both without a strategy can create procedural complications rather than save time.
Can new evidence be introduced on direct appeal?
Generally, no. The court of appeals reviews the record created in the district court, while genuinely new evidence may belong in a Rule 33 motion or § 2255 proceeding if the requirements for that remedy are met.
Is counsel appointed for a § 2255 motion?
There is no general constitutional right to appointed counsel for the initial motion. The court may appoint counsel when the interests of justice require it and must appoint qualified counsel for a financially eligible person when an evidentiary hearing is warranted.
Does pleading guilty eliminate every appeal?
No. The plea agreement may contain a waiver, but the exact language, validity of the plea and waiver, government conduct, preserved exceptions, and the Supreme Court’s 2026 Hunter standard all matter.
Can a § 2255 motion be filed more than once?
A second or successive motion requires advance authorization and must satisfy one of the two narrow grounds in § 2255(h). Some later filings are not legally classified as successive, but that depends on the judgment and history of the earlier proceeding.
Can I remain free while the appeal is pending?
Possibly, but release is not automatic after conviction. Section 3143(b) requires findings about flight, danger, delay, and a substantial appellate question likely to produce one of the specified favorable outcomes.
