Whether service members accused of crimes are entitled to a unanimous verdict requirement under the Fifth and Sixth Amendments as applied to courts-martial, consistent with Ramos v. Louisiana

No question identified. : No. IN THE Supreme Court of the United States JAMES T. CUNNINGHAM, Applicant, UNITED STATES OF AMERICA, Respondent. Application for Extension of Time to File a Petition for a Writ of Certiorari to the United States Court of Appeals for the Armed Forces To the Honorable John G. Roberts, Chief Justice of the United States: Pursuant to Supreme Court Rules 138.5, 22, and 30.2, the Applicant, Senior Airman (SrA) James T. Cunningham, respectfully requests a 60-day extension of time up to, and including, December 18, 2023, to file a petition for a writ of certiorari. Unless an extension is granted, the deadline for filing the petition for a writ of certiorari will be October 19, 2023. In support of this application, SrA Cunningham states the following: 1. SrA Cunningham was tried and convicted at a general court-martial by a panel of officer and enlisted members at Ellsworth Air Force Base, South Dakota of one charge and one specification of murder, in violation of Article 118, Uniform Code 1 of Military Justice (UCMJ), 10 U.S.C. § 918. United States v. Cunningham, No. ACM 40093, 2022 CCA LEXIS 527, at *1 (A.F. Ct. Crim. App. Sept. 9, 2022). The Military Judge sentenced SrA Cunningham to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 18 years, and a dishonorable discharge. Jd. The Convening Authority took no action on the findings or sentence of the case. Jd. at *2. 2. On direct appeal, SrA Cunningham challenged, inter alia, whether he was entitled to a unanimous verdict and whether the Military Judge abused his discretion by allowing a victim impact statement that contained videos, personal pictures, stock images, and lyrical music with themes of dying, saying farewell, and angels in heaven. Jd. On September 9, 2022, finding no prejudicial error, the Air Force Court of Criminal Appeals (Air Force Court) affirmed the findings and sentence while recognizing that the Military Judge abused his discretion in permitting an erroneous victim impact statement. 3. The Court of Appeals for the Armed Forces (CAAF) granted review to determine whether the victim impact statement was prejudicial error. United States v. Cunningham, 83 M.J. 139 (C.A.A.F. 2022). The CAAF also granted review on the unanimous verdict issue, but ordered that no briefs be filed as that issue was granted as a trailer to another case. Jd. On July 21, 2023, the CAAF issued a split decision finding error, but not prejudice, with two judges dissenting. United States v. Cunningham, __ M.J._, No. 23-0027, 2023 CAAF LEXIS 520 (C.A.A.F. July 21, 2023). 4. The time for petitioning this Court for a writ of certiorari expires on October 19, 2023. This Application is being filed more than 10 days before that date. Attached to this application are copies of the Air Force Court and CAAF opinions (Attachments A — C). 5. This Honorable Court has jurisdiction under 28 U.S.C. § 1259(3). 6. This case presents an opportunity for this Court to resolve whether service members accused of a crime are entitled to a unanimous verdict like state and federal criminal defendants. Ramos v. Louisiana, 140 S. Ct. 1390 (2020). It also allows this Court to determine what test should be employed to determine prejudicial error for an erroneous victim impact statement. 7. Through no fault of SrA Cunningham, Counsel has been unable to complete his petition for a writ of certiorari. Undersigned Counsel is the sole attorney assigned to SrA Cunningham’s case and is currently assigned 26 cases. Including this case, Counsel has two petitions for a writ of certiorari pending filing before this Court; one pending petition and supplement before the CAAF; and oral argument at the CAAF on October 25, 2023, in United States v. Rocha, No. 23-0134/AF, 2023 CAAF LEXIS 181 (C.A.A.F. Mar. 31, 2023). This is in addition to Counsel’s day-to-day workload of filing initial briefs at the Air Force Court. 8. Since the CAAF decided SrA Cunningham’s case on July 21, 2