Petition for Rehearing and Rehearing En Banc in a Federal Criminal Appeal
By Ronald W. Chapman II
Last reviewed: April 2026
Losing a federal criminal appeal does not always mean the next move is over. In some cases, the right response is a petition for panel rehearing, rehearing en banc, or both. But those petitions are not routine extensions of the briefing process. They are narrow, highly strategic filings governed by Rule 40, and they are most effective when used sparingly and for the right reasons.
The short answer
Under Federal Rule of Appellate Procedure 40, a party may seek panel rehearing, rehearing en banc, or both. In most criminal appeals, the petition must be filed within 14 days after judgment is entered, unless the time is changed by order or local rule. Rehearing en banc is expressly described as not favored. That should tell clients something important: these petitions are not second opening briefs. They are targeted requests that the court overlooked something important or that the case presents an issue warranting broader review.
Panel rehearing versus rehearing en banc
These are related but different tools.
Panel rehearing
This asks the original panel to reconsider because it overlooked or misapprehended a point of law or fact.
Rehearing en banc
This asks the full active court, rather than the original three-judge panel alone, to rehear the case. Rule 40 says rehearing en banc is not favored and ordinarily should be pursued only when the panel decision conflicts with the court’s own precedent, conflicts with Supreme Court authority, conflicts with authoritative decisions of other circuits, or involves questions of exceptional importance.
That means the lawyer filing the petition has to know exactly which lane the case belongs in, if any.
The deadline is short
In most criminal appeals, a rehearing petition is due within 14 days after judgment is entered. That is a serious deadline. It means the decision about rehearing usually has to be made quickly, often while the client and family are still absorbing the panel opinion.
This is one reason I encourage clients to think beyond the panel decision well before it arrives. Serious appellate counsel should already know:
- whether the case raises a recurring legal issue
- whether the panel’s analysis creates a conflict problem
- whether the case is really a cert petition case instead
- whether the better move is to preserve resources for § 2255
What Rule 40 requires
Rule 40 now treats panel rehearing and rehearing en banc as related options that are usually sought in a single document unless local rules say otherwise. The petition must state with particularity the points of law or fact the petitioner believes the court overlooked or misapprehended. If the filing seeks en banc review, it must identify a conflict or explain why the issue is exceptionally important. The petition is limited in length and oral argument on whether to grant the petition is not permitted.
That procedural structure matters because it forces discipline. The petition has to be focused, specific, and worthy of the court’s attention.
When rehearing makes sense
A good rehearing petition is usually driven by one of the following:
The panel overlooked a key point
Not just disagreed with it—overlooked it.
The panel misunderstood the record
In a document-heavy federal case, record misstatements can materially affect the analysis.
The decision conflicts with circuit or Supreme Court authority
That is classic rehearing territory, especially for en banc review.
The case presents an issue of recurring and exceptional importance
This often matters in federal criminal cases involving sentencing doctrine, plea issues, suppression law, fraud statutes, or questions that will repeatedly affect district courts.
When rehearing usually does not make sense
A rehearing petition is usually a mistake when it is filed merely because:
- the client is understandably upset
- counsel wants more time before deciding on cert or § 2255
- the petition simply re-argues points the panel already addressed
- there is no real conflict, oversight, or exceptional issue
Filing a weak rehearing petition is not harmless. It can dilute credibility and distract from the next move.
Why rehearing strategy matters in federal criminal cases
The federal criminal appeal process often forces difficult sequencing decisions.
Should counsel seek rehearing?
Should counsel move directly toward certiorari?
Should the real effort be reserved for § 2255 because the strongest issues depend on facts outside the appellate record?
Those questions are especially important in white-collar and healthcare matters, where the same case may also implicate licensing boards, exclusion, program participation, restitution, forfeiture, and professional survival. A reflexive rehearing petition is not strategy. It is just movement.
Why my background matters at this stage
I do not approach rehearing petitions as generic appellate paperwork. I approach them from the perspective of a trial-tested federal defense lawyer who understands how district court records are built, how prosecutors frame complex cases, and how legal error becomes embedded in judgments.
That is particularly important in the kinds of appeals I often handle—healthcare fraud, controlled-substances, professional-regulation, and complex financial cases—because those records can generate issues that have broader circuit significance. My background as a former prosecutor, a former U.S. Marine Corps Judge Advocate, and an attorney with an LL.M. in Health Care Law helps me distinguish between a disappointing opinion and a genuinely important one.
What I do when a panel decision comes down
1. Read the opinion against the briefs and record
The key is not whether I disagree with the result. The key is why.
2. Identify any real oversight, conflict, or exceptional issue
That is the foundation of any serious rehearing petition.
3. Decide whether the case is better positioned for rehearing, cert, or post-conviction review
A disciplined lawyer chooses the next vehicle carefully.
4. Move fast without becoming sloppy
The deadline is short, but speed is not an excuse for a weak filing.
5. Protect the client’s broader interests
In regulated and professional cases, the appellate strategy should always account for the consequences outside the criminal docket.
Frequently asked questions
How long do I have to file a rehearing petition?
Usually 14 days after judgment in the court of appeals.
Is rehearing en banc common?
No. Rule 40 says it is not favored.
Do I file separate petitions for panel rehearing and en banc review?
Usually they are filed together in a single document unless local rules provide otherwise.
Can I just re-argue what was already in my opening brief?
That is usually a bad rehearing petition.
Does filing for rehearing make sense in every lost appeal?
No. Sometimes it is the right move. Sometimes it is not. The decision has to be strategic.
Speak with Ronald W. Chapman II about rehearing strategy
If the court of appeals has issued an adverse decision in a federal criminal case, the next step may need to be taken very quickly. I can review the opinion, the record, and the existing briefing and tell you whether rehearing, rehearing en banc, certiorari, or § 2255 is the smarter path.
I handle federal appeals nationwide, including high-stakes healthcare and white-collar cases where the post-opinion decision can affect far more than the criminal judgment alone.
Call 346-242-7626 for a confidential consultation.