Whether prosecutorial misconduct during capital sentencing proceedings in a military court-martial, specifically arguments urging panel members to consider personal and professional consequences of their sentencing decision, constitutes reversible error warranting resentencing or other relief under the Uniform Code of Military Justice

No question identified. : IN THE Supreme Court of the Gnited States ANDREW P. WITT, Applicant, Vv. UNITED STATES OF AMERICA, Respondent. Application to the Hon. John G. Roberts, Jr. for Extension of Time to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Armed Forces Pursuant to Supreme Court Rules 13(5), 22, and 30(2), the Petitioner, Andrew P. Witt, respectfully requests a 60-day extension of time, to and including November 2, 2023, to file a Petition for a Writ of Certiorari. Unless an extension is granted, the deadline for filing the petition for certiorari will be September 3, 2023. In support of this request, Applicant provides the following: 1. The Court of Appeals for the Armed Forces (CAAF) rendered its decision on June 5, 2023. This Court has jurisdiction under 28 U.S.C. § 1259(3). Copies of the CAAF’s order granting review as well as the CAAF’s decision, of which Applicant seeks review, are attached to this application. 2. Applicant, a member of the United States Air Force, was tried by a panel of officer members at a capitally-referred general court-martial. The panel convicted Applicant, contrary to his pleas, of two specifications of premeditated murder and one specification of attempted premeditated murder in violation of Articles 80 and 118, Uniform Code of Military Justice (UCM)J), 10 U.S.C. §§ 880, 918 (2000). The panel sentenced Appellant to death. 3. This case has a complex appellate posture. The Air Force Court of Criminal Appeals (AFCCA) initially found that Applicant had received ineffective assistance of counsel due to trial defense counsel’s failure to investigate mitigating evidence. The AFCCA affirmed the findings but set aside the sentence and ordered a rehearing on the sentence. On reconsideration, however, the AFCCA affirmed the findings and sentence. The CAAF vacated the lower court’s opinion and returned the case for a sentence rehearing in accordance with the lower court’s original opinion. On rehearing, Applicant was sentenced to, inter alia, confinement for life without the possibility of parole. Applicant raised multiple issues to the AFCCA, including that trial counsel committed prosecutorial misconduct in sentencing. The AFCCA affirmed the findings and new sentence. The CAAF then reviewed whether trial counsel’s sentencing argument constituted prosecutorial misconduct that warranted relief. The CAAF affirmed the AFCCA’s decision. 4. The original record of trial consists of 2,978 transcribed pages, 78 prosecution exhibits, 72 defense exhibits, and 308 appellate exhibits. The record of trial for the sentence rehearing contains 4,953 transcribed pages and approximately 628 appellate exhibits. 5. The undersigned counsel were recently appointed to represent the Applicant in this case. Undersigned counsel were not involved in any of the previous trial or appellate proceedings and need additional time to familiarize themselves with the complex issues of the case and review all relevant materials. Counsel currently represent nineteen clients before the AFCCA and three clients before the CAAF. 6. Applicant thus requests a 60-day extension for counsel to prepare a petition that fully addresses the complex issues raised by the decision below and frames those issues in a manner that 3 will be most helpful to the Court. WHEREFORE, for the foregoing reasons, Applicant respectfully requests that an extension of time to and including November 2, 2023, be granted within which Applicant may file a petition for a writ of certiorari. Respectfully Submitted, A tae Cai, HEATHER M. CAINE Counsel of Record Appellate Defense Counsel Appellate Defense Division United States Air Force 1500 West Perimeter Road Joint Base Andrews, MD 20762 (240) 612-4770 heather.caine. 1 @us.af.mil A E~ MEGAN P. MARINOS Senior Appellate Defense Counsel Appellate Defense Division United States Air Force 1500 West Perimeter Road Joint Base Andrews, MD 20762 (240) 612-4770 Counsel for Applicant F