United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
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).
reasons stated, respondent's motion to dismiss is
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
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.
December 26, 2012 - more than a year after his convictions -
Perfetto filed a motion to vacate his conviction in the trial
court. See id., Index No. 51. That
motion was denied on January 9, 2013. See id., Index
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. 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.
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
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.
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.
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