Perfetto v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jonathan Andrew Rabinowitz-Perfetto
v. 	Civ. No. 16-cv-473-SM
Helen Hanks, Commissioner,
New Hampshire Department of Corrections1
REPORT AND RECOMMENDATION
Before the court are petitioner Jonathan Andrew Rabinowitz-
Perfetto’s motion for a stay (Doc. No. 21) and motion to
withdraw (Doc. Nos. 25, 29) the motion for a stay. 	Respondent
has not filed a response to either motion.
In this habeas action, Rabinowitz-Perfetto has asserted the
following four claims for relief:
1. 	Rabinowitz-Perfetto’s trial counsel failed to provide
him with the effective assistance of counsel, in violation
of Rabinowitz-Perfetto’s Sixth and Fourteenth Amendment
rights, by:
a. 	failing to investigate or pursue an insanity
defense;
b. 	failing to properly litigate Rabinowitz-
Perfetto’s competency to stand trial by not providing
1Rabinowitz-Perfetto named Michael Zenk, the former warden
of the New Hampshire State Prison for Men as the respondent to
this action. 	The court has substituted the name of the current
New Hampshire Department of Corrections (“DOC”) Commissioner,
Helen Hanks, as the respondent in this case, as Rabinowitz-
Perfetto is a DOC inmate presently housed at a prison in
Montana.
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the forensics examiner who conducted the competency
evaluation with petitioner’s mental health records;
and
c. 	failing to obtain an expert witness to present
mitigating evidence concerning Rabinowitz-Perfetto’s
mental illness at his sentencing hearing.
2. 	Rabinowitz-Perfetto’s sentence violates his Eighth
Amendment right not to be subjected to cruel and unusual
punishment, and his rights under the Fourteenth Amendment
and the New Hampshire Constitution, as the sentence is
excessive and grossly disproportionate to the charged
offenses.
Apr. 17, 2017 Order (Doc. No. 7) (“April 17 Order”), at 3-4.
Rabinowitz-Perfetto asserts that while Claims 1(b) and 1(c)
have been exhausted, he has not exhausted Claims 1(a) or 2. 	The
court has not made any finding in this case as to whether any of
the claims Rabinowitz-Perfetto has asserted have been exhausted.
Petitioner now seeks to dismiss the two claims he asserts
are unexhausted, Claims 1(a) and 2 from this action, and to
withdraw his pending motion to stay this case to allow him to
exhaust those claims. 	Petitioner states that, while he did
commence a state court action to exhaust Claims 1(a) and 2 in
February 2018, “[a]fter review of the State’s cited case law,
the Petitioner does not want to ‘beat a dead horse,’ so the
Petitioner wishes to withdraw his motion to stay his case.”
Apr. 13, 2018 Mot. Withdraw Mot for Stay (Doc. No. 25), at 2;
see also May 8, 2018 Mot. Addend Mot. Withdraw (Doc. No. 29), at
3. 	Petitioner has acknowledged that in withdrawing Claims 1(a)
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and 2, he is likely foregoing the opportunity to obtain habeas
relief in the future as to those claims, due to the bar on
successive habeas petitions in 28 U.S.C. § 2244. 	See May 8,
2018 Mot. Addend Mot. Withdraw (Doc. No. 29), at 3.
Because Rabinowitz-Perfetto has opted not to pursue
exhaustion of Claims 1(a) and 2 in the state courts, while
recognizing the impact of § 2244’s bar on successive petitions,
the district judge should grant the motion to forego those
claims (Doc. Nos. 25, 29). 	Further, the district judge should
allow Rabinowitz-Perfetto to withdraw his Motion to Stay (Doc.
No. 21). 	Rabinowitz-Perfetto’s habeas action should then
proceed as to the claims identified above as Claims 1(b) and
1(c).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
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June 28, 2018
cc: 	Jonathan Andrew Rabinowitz-Perfetto, pro se
Elizabeth C. Woodcock, Esq.
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