UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Thomas Hanson

v. Civil No. 13-cv-448-JD Opinion No.

Richard Gerry, Warden, New Hampshire State Prison

O R D E R

Michael Thomas Hanson, proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to

,

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.

Background

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.

2 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

3 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

4 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,

(1st Cir. 2011); see also Fed. R. Civ. P. 81(a)(4). The

requirements of

, however, govern review.

5 Discussion

While proceeding pro se, Hanson sought summary judgment in

his favor on all of his claims, but he is now represented by

counsel. In his partial objection to the warden’s motion for

summary judgment, which was filed by counsel on Hanson’s behalf,

Hanson does not object to summary judgment except to the claim

based on waiver of the psychotherapist-patient privilege.

Therefore, the only claim remaining in the case is that Hanson’s

sentence for a probation violation violates the due process clause of the Fourteenth Amendment because he was not given

notice that failure to waive the psychotherapist-patient

privilege would result in incarceration.

When a habeas petitioner’s claim has been adjudicated on the

merits in state court, the petitioner must show that the state

court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or [] resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”

(d). If, however, the federal

claim was not adjudicated on the merits, a de novo standard

applies. Fortini v. Murphy,

(1st Cir. 2001),

accord Wright v. Marshall,

(1st Cir. 2011).

“When a federal claim has been presented to a state court and the

state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any

6 indication or state-law procedural principles to the contrary.”

Harrington v. Richter,

(2011).

In this case, Hanson does not address the standard

applicable to his claim. The warden states that the state habeas

court did not address the privilege issue, making the de novo

standard applicable to review of that issue. The warden further

states that the habeas court did address due process, making that

part of the analysis subject to deferential review.

Contrary to the warden’s interpretation of the state court habeas decision, the state habeas court noted that Hanson

challenged the requirement that he waive the psychotherapist-

patient privilege but did not consider the due process

implications of the privilege issue. Instead, the habeas court

found that Hanson admitted he violated the terms of his probation

by failing to begin recommended treatment, which made the

privilege issue moot. Therefore, although the privilege issue

and its due process implications were raised, they were not

addressed by the state habeas court and the de novo standard

applies.

Under the de novo standard, this court must decide whether

the facts show that Hanson’s incarceration for a probation

violation was imposed without due process. See Fortini,

. As the warden points out, the psychotherapist-patient

privilege invoked by Hanson is an evidentiary rule, not a

constitutional right. See In re State,

(2011)

(quoting and explaining RSA 330-A:32). Therefore, to the extent

7 Hanson argues that he had a constitutional right to keep his

communications with Dr. Cantagallo confidential, he is mistaken.

Hanson contends that due process required that he be given

explicit prior notice that failure to waive the psychotherapist-

patient privilege would cause him to be incarcerated. A person

on probation is entitled to fair warning about what will

constitute a violation of the terms of probation so that an

unforeseeable interpretation of those terms may violate due

process. See Douglas v. Buder,

(1973) (citing Bouie v. City of Columbia,

(1964); accord Rogers v.

Tennessee,

(2001); see also United States v.

Morin,

(1st Cir. 1989) (“Unless the probationer

received prior fair warning that his acts could lead to

revocation, the district court’s revocation violated due process

and was an abuse of discretion.” (internal quotation marks

omitted)).

Under the terms and conditions of Hanson’s probation, he was

required to “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 . . . [and] meaningfully

comply with any and all treatment recommendations.” In addition,

he was told that “the above conditions shall be monitored by the

Department of Corrections, Division of Field Services” and that

“[v]iolation of probation or any of the terms of this sentence

may result in revocation of probation and imposition of any

8 sentence within the legal limits for the underlying offense.”

The judge at the probation hearing found that the only reasonable

interpretation of Hanson’s sentencing document was that Hanson

was required to waive the psychotherapist-patient privilege to

allow his probation officer to monitor his compliance with the

terms and conditions of probation.

Hanson cites no case that holds that due process requires

explicit notice that a probationer will be required to waive the

psychotherapist-patient privilege. Instead, as provided above, a probationer is entitled to fair warning of the terms and

conditions of his probation. Based on the judge’s interpretation

of the sentencing document at the probation hearing, which Hanson

does not challenge, Hanson received fair warning that he would be

required to waive the psychotherapist-patient privilege in order

to comply with the terms and conditions of probation.

In addition, both the judge at the probation hearing and the

state habeas court found that Hanson admitted that he violated

the terms of his probation by failing to begin recommended

treatment. As the state courts found, Hanson’s admission

provides grounds for the probation violation and sentence which

do not implicate the due process issue he raises.

Hanson does not dispute the facts as found by the habeas

court. “A state court’s factual findings are presumed to be

correct unless the petitioner rebuts the presumption with clear

and convincing evidence.” Companonio v. O’Brien,

(1st Cir. 2012) (citing

(e)). Therefore,

9 Hanson has not shown that the state habeas court’s decision

violates his right to due process.

Conclusion

For the foregoing reasons, Hanson’s motion for summary

judgment (document no. 15) is denied. The warden’s motion for

summary judgment (document no. 19) is granted. The petition for

a writ of habeas corpus (document no. 1) is denied.

Because there is no substantial showing of the denial of a constitutional right within the meaning of

(c)(2), the court declines to issue a certificate of

appealability.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

June 24, 2014

cc: Jared Joseph Bedrick, Esq. Elizabeth C. Woodcock, Esq.

10