United States District Court, District of New Hampshire
Joseph A. DiClerico, Jr. United States District Judge
Michael Thomas Hanson, proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, seeking release from his sentence imposed after Hanson violated the terms and conditions of his probation. After the warden filed his answer to Hanson’s petition, Hanson filed a motion for summary judgment. The warden also filed a motion for summary judgment. Counsel entered an appearance on behalf of Hanson and filed a partial objection to the warden’s motion for summary judgment and then moved to amend the objection. The motion to amend was granted.
Hanson pleaded guilty on April 17, 2012, in Rockingham County (New Hampshire) Superior Court, to two counts of attempted possession of child pornography. Pursuant to the plea agreement, Hanson was sentenced on April 17, 2012, to twelve months in prison with credit of 365 days for pretrial confinement on the first count and to twelve months in prison with pretrial confinement credit of forty-two days, suspended for two years, on the second count. Hanson was also sentenced to two years of probation.
Suspension of the prison sentence and probation were subject to certain conditions. Hanson was required, among other things, “to participate meaningfully and complete any counseling, treatment and educational programs as directed by the correctional authority or Probation/Parole Officer, ” to “undergo an adult sexual offender evaluation by an evaluator/treatment provider that is approved by the State within 60 days; . . . [and] meaningfully comply with any and all treatment recommendations.” In addition, the addendum to his sentence provided that “the above conditions shall be monitored by the Department of Corrections, Division of Field Services” and stated that the terms of the addendum were specific conditions of Hanson’s probation. The sentencing document notified Hanson that “[v]iolation of probation or any of the terms of this sentence may result in revocation of probation and imposition of any sentence within the legal limits for the underlying offense.” Ronald Hebert served as Hanson’s probation officer. On June 25, 2012, Hebert filed a “Violation of Probation” against Hanson on the ground that Hanson had not provided a completed sexual offender evaluation as required by the terms of his probation. The state filed a motion to find that Hanson had violated the terms of his probation. A hearing was held on the motion on August 23, 2012.
Hebert testified that Hanson told him he had obtained a sexual offender evaluation, but Hanson refused to provide it to Hebert. Hanson said that he only wanted to release limited information. Hebert explained that Hanson would have to sign a release to allow Hebert access to information from the evaluator so that Hebert could be sure that the evaluation was done and that Hanson was following the treatment recommendations made by the evaluator. Because Hanson would not sign the release, Hebert did not know if he had obtained an evaluation.
Hanson testified that he had completed a sexual offender evaluation with Dr. David Cantagallo in Manchester, New Hampshire, within the sixty days provided under the terms of his probation. He said that he was not comfortable signing the release to allow Hebert access to the evaluation. Hanson thought that he was not required to waive the physician-patient privilege and that Hebert could confirm that the evaluation had been done and that Hanson was following Dr. Cantagallo’s treatment recommendations without the release. Hanson also testified that he had not started the recommended treatment with Dr. Cantagallo or with any other provider.
The judge found that Hanson was in violation of the terms of his probation because, based on his own testimony, he was not undergoing treatment as recommended by Dr. Cantagallo. The judge also found that although the sentencing order did not explicitly say that Hanson was required to waive the psychotherapist-patient privilege, that was the only reasonable interpretation of the sentence and the terms and conditions of probation.
The judge noted that he had had previous dealings with Hanson during the pretrial process and sentencing and that treatment was the best way to protect the public from being harmed by Hanson’s behavior. Because of Hanson’s demonstrated attitude of noncompliance, the judge concluded that he would sentence him to the state prison with a recommendation for treatment. The sentence imposed was two and a half to seven years with an additional disciplinary period of 150 days. Hanson’s appeal was declined by the New Hampshire Supreme Court.
Hanson brought a petition for a writ of habeas corpus in state court, challenging his sentence for a probation violation. Hanson argued that a probation violation is not a crime, making his sentence for a probation violation illegal. Hanson also argued that the judge violated his rights by going forward with the probation violation hearing before investigating Hanson’s motion for his recusal, by finding a probation violation based on his refusal to waive the psychotherapist-patient privilege, and by failing to credit him for time served while in pretrial detention and on probation. The court found no merit in Hanson’s claims except that Hanson was credited with forty-two days for pretrial confinement.
Hanson, proceeding pro se, filed a petition for a writ of habeas corpus in this court on October 8, 2013. His first motion for summary judgment and other related motions were denied in the order on preliminary review. The court determined that Hanson raised the following claims in support of his petition: that his sentence for a probation violation violated due process because probation violation is not a crime, that the sentence violated the state and federal prohibitions against double jeopardy, that the sentence violated due process because he was being punished for refusing to waive the psychotherapist-patient privilege, and the sentence violated state and federal rights not to be subjected to cruel and unusual punishment.
After the state filed its answer, Hanson filed a second motion for summary judgment. The warden did not respond to Hanson’s motion but filed his own motion for summary judgment. Counsel entered an appearance on behalf of Hanson and was granted an extension of time to respond to the warden’s motion for summary judgment. Hanson’s partial objection to the warden’s motion was filed within the time allowed.
Standard of Review
In habeas proceedings, “[s]ummary judgment is proper if there is no genuine issue as to any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law.” Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011); see also Fed.R.Civ.P. ...