Whether a defendant's waiver of appellate rights in a plea agreement is knowing and voluntary when the underlying offense to which the defendant pled guilty has been subsequently held not to be a crime triable by military commission as a matter of law

No question identified. : APPLICATION FOR AN EXTENSION OF TIME Pursuant to Rule 13.5 of the Rules of this Court, Applicant Omar Ahmed Khadr hereby requests a 60-day extension of time within which to file a petition for a writ of certiorari up to and including January 2, 2024. This request is unopposed. JUDGMENT FOR WHICH REVIEW IS SOUGHT The judgment for which review is sought is reported at Khadr v. United States, 67 F.4th 413 (D.C. Cir. 2023). The U.S. Court of Appeals for the D.C. Circuit issued its opinion on May 9, 2023, (attached hereto as Exhibit A) and denied rehearing en banc on August 4, 2023 (attached here to as Exhibit B). JURISDICTION This Court will have jurisdiction over any timely filed petition for certiorari in this case pursuant to 28 U.S.C. § 1254(1). Under Rules 13.1, 13.3, and 30.1 of the Rules of this Court, a petition for a writ of certiorari will be due to be filed on or before November 2, 2023. In accordance with Rule 13.5, this application is being filed more than 10 days in advance of that filing deadline. BACKGROUND In 2007, Applicant Omar Ahmed Khadr, a Canadian citizen, was charged under the Military Commissions Act of 2006 for, among other things, providing material support to terrorism when he was 15 years old. In 2010, Khadr pled guilty to the charges. In connection with his plea agreement, Khadr agreed to waive his appellate rights “to the extent permitted by law.” Khadr, 67 F.4th at 416. In 2013, Khadr timely appealed his conviction to the U.S. Court of Military Commission Review (“CMCR’), citing intervening decisions from panels of the D.C. Circuit invalidating offenses to which he pled guilty. The CMCR held Khadr’s case in abeyance pending the resolution of one of those cases, in which, inter alia, the en banc D.C. Circuit unanimously held that material support for terrorism was not triable by military commission for conduct predating the enactment of the Military Commissions Act of 2006. Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014). The CMCR lifted the abeyance in 2020 and dismissed Khadr’s appeal in October 2021, finding that it lacked subject-matter jurisdiction because the Convening Authority for Military Commissions had not forwarded the record of trial to the court. It then remanded the case to the Convening Authority, who declined to forward the record to the CMCR, on the ground that Khadr had waived his right to appeal. Khadr timely petitioned the D.C. Circuit for review of the CMCR’s dismissal. On May 23, 2023, the D.C. Circuit denied Khadr’s petition, concluding that he had knowingly and voluntarily waived his right to challenge his convictions on appeal. The D.C. Circuit’s decision deepened a circuit split on whether a waiver of appellate rights can ever be knowing and voluntary when the underlying offense to which the defendant pled guilty has been held not to be a crime as a matter of law. On August, 4, 2023, the D.C. Circuit denied Khadr’s petition for rehearing en banc. On September 19, 2023, Applicant retained Curtis, Mallet-Prevost, Colt & Mosle LLP as pro bono counsel and counsel of record for the purposes of filing a petition for certiorari. REASONS JUSTIFYING AN EXTENSION OF TIME Supreme Court Rule 13(5) provides that “[f]or good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days.” S. Ct. R. 138(5). Good cause exists to extend the deadline. New counsel of record was not previously involved in litigating this case, and he and his team will benefit from the additional time to familiarize themselves with the record, which spans over more than 20 years and involves multiple, interrelated appeals in this and other cases. Furthermore, this case presents an important question regarding a criminal defendant’s waiver of appellate rights in a plea agreement that was based on an offense that was not a legally chargeable crime. Circuits to have addressed this issue have split on whether such a waiver preclud