Perfetto v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jonathan Andrew Perfetto
v. 	Case No. 16-cv-473-SM
Commissioner Helen Hanks,
New Hampshire Department of Corrections
Report and Recommendation
Jonathan Andrew Perfetto filed a petition pursuant to 28
U.S.C. § 2254 in October of 2016, challenging his conviction and
incarceration for possession of child sexual abuse images and
failing to comply with sex offender registration and/or
reporting requirements. 	The Commissioner moved to dismiss the
petition based on the statute of limitations. 	Counsel was
appointed to represent Perfetto, and an objection was filed,
arguing that the limitations period was subject to equitable
tolling. 	The motion was treated as a motion for summary
judgment, and the petition was dismissed on March 28, 2019.
Doc. no. 57 (“March 28 Order”).
Perfetto through counsel has moved for relief from
judgment, which was entered following the March 28 Order,
pursuant to Rule 60(b)(6). 	The Commissioner did not file a
response. 	The motion was referred to the undersigned for a
report and recommendation pursuant to 28 U.S.C. § 636(b).
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Background
Perfetto does not contest the underlying chronology of the
pertinent events as provided in the March 28 Order. 	For
background purposes, that information is provided here as
follows:
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
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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
1 In the motion to dismiss, the respondent states that the
Superior Court docketed petitioner’s motion on January 3, 2013,
but the motion was dated December 26, 2012. See Doc. No. 24, at
3 n.4. As the pertinent motion was filed by the incarcerated
petitioner acting pro se, the court will apply the “prison
mailbox rule,” and assume, for purposes of considering the
motion to dismiss, that petitioner’s motion was placed in the
prison mail, and thus filed, on December 26, 2012.
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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:
2 The record in this case indicates that the NHSC’s May 11,
2015 order declining Perfetto’s appeal was sent to his post-
conviction attorney and to the trial court on June 1, 2015, but
does not indicate the date Perfetto personally received notice
of the declination.
3 The court received Perfetto’s petition, which was sent by
mail, on October 27, 2016. The court assumes that, pursuant to
the “mailbox rule,” Perfetto’s petition was placed in the prison
mail, and thus filed in this court, in the several days prior to
the date the court received it.
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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 (“SPU”) or
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the Residential Treatment Unit (“RTU”). 	See Feb. 25, 2019
Objection to Motion to Dismiss (Doc. No. 53).
In the March 28 Order, the court provided the standard for
the limitations period under § 2244(d)(1) and calculated that
the time for Perfetto to file a § 2254 petition, which included
addressing the tolling issues and time excluded while motions
were pending. 	Perfetto argued that the time should be equitably
tolled based on his physical and mental health conditions and
his restricted housing assignments. 	The court noted that
Perfetto bore the burden of proof for equitable tolling but had
not requested an evidentiary hearing for that purpose. 	In the
absence of a request, no hearing was held.
The court provided the standard for equitable tolling and
acknowledged that mental and physical health conditions may
provide grounds to support equitable tolling. 	Those conditions
alone, however, did not justify equitable tolling, and instead,
Perfetto was required to show that his physical or mental health
or his restricted housing conditions prevented him from filing a
petition for habeas corpus relief. 	March 28 Order, at 9-10
(citing Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir. 2012)).
Because Perfetto merely filed his prison mental health records
without any showing as to how his mental condition interfered
with his ability to file a habeas petition during the relevant
time, he had not made the necessary showing to avoid summary
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judgment. 	March 28 Order, at 10. 	The records also did not
show, as Perfetto claimed, that he was housed in SHU or RTU
during the relevant time.
The court then addressed Perfetto’s representations that he
suffered memory problems from August of 2012 until May of 2013
because of a serious illness and hospitalization in August of
2012. 	The court noted that despite his asserted memory
problems, Perfetto continued to compose and file pleadings in
other cases in state and federal court. 	Based on that record,
the court concluded that Perfetto had not shown an inability to
file a habeas petition in the remaining months in the
limitations period following October 23, 2012, and had not shown
grounds for equitable tolling based on memory loss. 	With
tolling for time when other matters were pending, the
limitations period expired on May 13, 2013, almost three and
half years before the petition was filed in this case. 	The
court granted the Commissioner’s motion, and the petition was
dismissed. 	Doc. no. 57.
Perfetto, proceeding pro se, filed a notice of appeal on
May 9, 2019. 	Appointed counsel’s motion to withdraw was
granted. 	Perfetto moved for more time to respond to the March
28 Order, which was granted, and in response, the court of
appeals stayed his appeal, pending resolution of his post-
judgment motion.
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Perfetto then moved to compel appointed counsel, who had
withdrawn from the case, to provide him copies of records in the
case. 	The court ordered production of records in counsel’s
possession. 	Counsel filed a notice of compliance on April 26,
2020. 	The court denied Perfetto’s motion for reconsideration
but granted his request for the clerk’s office to send him
copies of psychological evaluations. 	In the meantime, on
December 30, 2019, the court of appeals granted Perfetto’s
motion to voluntarily dismiss his appeal.
In August of 2020, Perfetto moved for an extension of time
to file a motion for relief under Federal Rule of Civil
Procedure 60(b)(5), which was granted. 	In September of 2020,
the court granted Perfetto’s motion for appointment of counsel
to address a motion under Rule 60(b)(5). 	Counsel on Perfetto’s
behalf filed a motion for relief under Rule 60(b)(6).
Discussion
Perfetto contends that he is entitled to relief under Rule
60(b)(6) from the court’s order and judgment dismissing his
§ 2254 petition as time barred under 28 U.S.C. § 2244(d)(1). 	In
support, he asserts that the court should have held an
evidentiary hearing to give him the opportunity to show that the
statute of limitations should be tolled.
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A. 	Rule 60(b)(6)
Relief from judgment under Rule 60(b)(6) is granted only in
extraordinary circumstances. 	Tharpe v. Sellers, 138 S. Ct. 545,
546 (2018). 	To determine whether to grant relief under Rule
60(b)(6), the court considers the following factors:
(1) the motion's timeliness, (2) whether exceptional
circumstances justify extraordinary relief, (3) whether the
movant can show a potentially meritorious claim or defense,
which, if proven, could bring her success at trial, and (4)
the likelihood of unfair prejudice to the opposing party.
Bouret-Echevarria v. Caribbean Aviation Maint. Corp., 784 F.3d
37, 43 (1st Cir. 2015). 	The court need not consider each factor
in depth when one or two factors dictate the result. 	Id.
B. 	Hearing
The docket entry for the pending motion states “Hearing
Requested.” 	In the motion, however, Perfetto asks for a hearing
on his § 2254 petition after judgment is vacated. 	He does not
ask for a hearing on the Rule 60(b)(6) motion or provide grounds
to support a request for a hearing. 	See LR 7.1(d). 	In the
absence of that required showing and lacking any apparent need
for a hearing, no hearing will be held on the pending motion.
C. 	Grounds Raised for Relief from Judgment
Perfetto argues that although he did not request a hearing
on the Commissioner’s motion to dismiss, the court should have
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held a hearing sua sponte to allow him to explain why his mental
and physical health and restrictive housing were adequate
grounds for equitable tolling. 	He asserts that a hearing was
necessary to adequately develop his arguments and the bases for
equitable tolling. 	By way of example, he disputes the court’s
reliance on a pleading filed in another case to show his
competence during the disputed period because, he says, the
pleading was completed before his illness in August of 2012 and
was filed with the help of other inmates. 	He also asks for an
opportunity to present testimony from staff about the conditions
in the restricted housing units where he was living that
prevented him from filing a petition.
D. 	Recommendation
Perfetto was represented by counsel for purposes of
opposing the Commissioner’s motion to dismiss (converted to a
motion for summary judgment). 	An evidentiary hearing was not
requested to oppose the motion. 	Nothing in the record
demonstrated a situation that would require the court to order a
hearing sua sponte. 	Moreover, Perfetto did not move for
reconsideration on the ground that a hearing was necessary.
In the current motion, Perfetto states that if an
evidentiary hearing had been held, he could have presented
evidence of his mental and physical condition and restricted
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housing to show that he could not have filed a petition during
the relevant time. 	He does not specifically explain what his
health and housing limitations precluded. 	More importantly, he
does not present evidence in support of his motion that
demonstrates the debilitating effects of his health conditions
or the housing restrictions that precluded filing. 	He simply
argues that an evidentiary hearing would have given him an
opportunity to present evidence and explanations for that
purpose. 	As such, he has not shown that his equitable tolling
theory is potentially meritorious, if an evidentiary hearing
were held.
The district court should conclude that Perfetto has not
shown extraordinary circumstances that would require the
exceptional relief of vacating the judgment in this case. 	In
the absence of the necessary showing to support relief from
judgment under Rule 60(b)(6), the district court should deny the
motion.
Conclusion
For the foregoing reasons, the district court should deny
Perfetto’s motion for relief from judgment (document no. 100).
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
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upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. 	See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections 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
May 3, 2022
cc: Counsel of record
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