Whether the admission of a preliminary hearing testimony of a deceased witness, who was unavailable for cross-examination on a subsequently added criminal charge, violates a defendant's Sixth Amendment Confrontation Clause rights

No question identified. : To the Honorable Justice John G. Roberts, as Circuit Justice for the United States Court of Appeals for the Fourth Circuit: Applicant, pursuant to this Court’s Rules 13.5, 22, 30.2, and 30.3, respectfully requests that the time in which he may file a petition for a writ of certiorari be extended for 60 days until February 27, 2026. The United States Court of Appeals for the Fourth Circuit issued its per curiam opinion on September 2, 2025 (Exhibit B) and denied a petition for rehearing on September 30, 2025 (Exhibit A). If an extension of time is not granted, the filing deadline for a petition would be December 29, 2025. This Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1254(1). The Virginia Solicitor General’s office reported to undersigned counsel that it does not oppose this application. Background On September 4, 2013, Massey was arrested for two counts of rape! and one count of simple abduction? of P.E. in Fairfax County, Virginia. On November 1, 2013, P.E. testified at a preliminary hearing on these charges in the Fairfax County 'In violation of Virginia Code § 18.2-61, which carries a sentence of 5 years to life in prison. ? In violation of Virginia Code § 18.2-47, which carries a sentence of 1 to 10 years in prison or up to 12 months in jail. Juvenile & Domestic Relations Court. The court found probable cause and certified Massey’s charges to the grand jury. On November 10, 2013, nine days after the preliminary hearing, P.E. passed away due to an alcohol and drug overdose. On November 18, 2013, a Fairfax County grand jury returned four indictments against Massey in the Fairfax Circuit Court. In addition to the charges pending at preliminary hearing, the grand jury indicted Massey on a new charge, abduction with the intent to defile under Virginia Code § 18.2-48, requiring that the abduction be carried out with an “intent to defile.” This charge carried a potential penalty of 20 years to life in prison and was the most serious charge brought against Massey. Massey was not represented on this charge at preliminary hearing because it did not then exist. During pretrial litigation, Massey moved to exclude P.E.’s preliminary hearing testimony from evidence at his trial on evidentiary and Confrontation Clause grounds. The trial court initially granted his motion on evidentiary grounds for failing to meet the criteria under Rule 2:804(b)(1) of the Virginia Rules of Evidence (Hearsay Exceptions; Declarant Unavailable) regarding the right and opportunity to cross-examine. However, after a failed interlocutory appeal by the prosecution, the prosecution moved to reconsider the trial court’s ruling excluding P.E.’s preliminary hearing testimony. Ultimately, the Fairfax Circuit Court reversed its prior ruling, allowing the Commonwealth to admit P.E.’s preliminary hearing testimony into evidence at Massey’s trial. Massey was tried before a jury between January 26 to January 30, 2015 and P.E.’s preliminary hearing testimony was admitted against him through a surrogate witness, a friend of P.E., who read P.E.’s preliminary hearing testimony to the jury. On January 30, 2015, the jury found Massey guilty of all charges. Post-trial, the trial court set aside the abduction charge on other grounds but upheld Massey’s convictions for two counts of rape and abduction with intent to defile. On August 26, 2015, Massey was sentenced to 62 years in prison, with 10 years suspended. Massey timely noted his appeal to the Virginia Court of Appeals where he continued to raise Confrontation Clause challenges to the admissibility of the preliminary hearing, including arguing that he did not have the opportunity to crossexamine P.E. on the charge brought after her death. On December 13, 2016, the Court of Appeals affirmed Massey’s convictions in a published opinion. Massey v. Commonwealth, 67 Va. App. 108, 793 S.E.2d 816 (2016). Massey timely noted his appeal to the Supreme Court of Virginia and on June 16,