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Perfetto v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

March 28, 2019

Jonathan Andrew Perfetto Petitioner
Warden, New Hampshire State Prison Respondent


          Steven J. McAuliffe United States District Judge.

         Petitioner Jonathan Andrew Perfetto has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his present incarceration violates his constitutional rights. See Petition for Habeas Corpus (Doc. No. 1). Presently before the court is the respondent's motion to dismiss that petition on grounds that it was untimely filed. See Motion to Dismiss (Doc. No. 24). Petitioner objects (Doc. Nos. 53, 55). The respondent has filed a reply to the objection (Doc. No. 56).

         For the reasons stated, respondent's motion to dismiss is granted.


         On December 19, 2011, Perfetto pleaded guilty in New Hampshire Superior Court to five counts of possession of child sexual abuse images, and seven counts of failing to comply with sex offender registration and/or reporting requirements. He was sentenced to serve two consecutive ten to twenty-year prison terms and additional suspended concurrent prison sentences. See State v. Perfetto, No. 216-2011-CR-00107 (N.H. Super. Ct., Hillsborough Cty.) (“Criminal Case”). Perfetto did not file a direct appeal of his conviction or sentence, nor did he seek sentence review (as is permitted under state law). The Superior Court docket indicates that on July 16, 2012, and August 10, 2012, Perfetto filed motions in the trial court to withdraw his guilty plea. See id., Criminal Case, Index Nos. 45, 48. That court denied those motions on October 23, 2012. See id., Index No. 50.

         In the meantime, on August 12, 2012, while Perfetto's post-conviction motions were still pending in the state court, Perfetto was diagnosed with septicemia and MRSA and was sent to the emergency room with a life-threatening 107-degree fever which rendered him unconscious for three days. He was initially hospitalized at an outside hospital and then moved to the prison infirmary for more than a month. Perfetto claims that his high fever resulted in his having significant memory problems that interfered with his ability to litigate matters until May 2013.

         On December 26, 2012 - more than a year after his convictions - Perfetto filed a motion to vacate his conviction in the trial court.[1] See id., Index No. 51. That motion was denied on January 9, 2013. See id., Index No. 52.

         Approximately nine months later, on September 15, 2014, Perfetto filed a fourth motion in the trial court, again seeking to withdraw his guilty plea. See id., Index. No. 53. That motion was denied on February 17, 2015. See id., Index No. 64. Perfetto appealed the denial of that motion to the New Hampshire Supreme Court (“NHSC”). See id., Index No. 66. That court declined to accept the appeal on May 11, 2015, see Doc. No. 24-1, and issued the certificate of declination on June 1, 2015, see, Criminal Case, Index No. 68. But, says Perfetto, he did not personally receive notice that his appeal had been declined until more than four months later, on October 26, 2015.[2] See Petition for Habeas Corpus, at paras. 31, 32. Perfetto asserts in his petition that he filed a petition for a writ of certiorari in the United States Supreme Court appealing the NHSC's declination of his appeal, but ultimately abandoned that petition due to his inability to comply with certain filing requirements of that court. Perfetto filed his petition for federal habeas corpus relief in this court on October 27, 2016 -nearly five years after the state trial court accepted his guilty pleas and sentenced him to prison.[3]

         After Perfetto filed his petition here, the court directed him to show cause why his petition should not be dismissed as untimely. See Apr. 17, 2017 Order (Doc. No. 7) (“April 17 Order”). Perfetto responded to the April 17 Order, stating that the court should find his petition to be timely for the following reasons:

1. The limitations period should not begin to run until May 2, 2012, because that was when he was able to obtain access to legal materials and research resources to determine when his statute of limitations would expire; and
2. Perfetto sustained a head injury which resulted in his being committed to SPU for 333 days, from June 23, 2013 to May 20, 2014, during which time he was “legally incompetent to engage in legal matters.”

See May 19, 2017 Addendum to Petition (Doc. No. 9), at 4-6.

         Without making a finding as to the timeliness of Perfetto's petition, the court thereafter directed the respondent to file an answer to the petition. See Jan. 4, 2018 Order (Doc. No. 15). In response, the respondent filed a motion to dismiss the petition on grounds that this federal habeas action is untimely. And, because Perfetto had been transferred to a prison in Montana, the court appointed counsel to represent him to ensure that he was able to access the legal resources necessary to properly respond to the motion to dismiss. See June 28, 2018 Order (Doc. No. 33).

         Counsel objected to the motion to dismiss, asserting that the limitations period for this habeas action should be statutorily tolled for 343 days, during the time Perfetto had post-conviction litigation pending in the state court, and for an additional 1, 126 days, representing the time Perfetto asserts he was receiving mental health treatment at the New Hampshire State Prison, at either the Secure Psychiatric Unit ...

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