Lawyers for Courage beneficiary Matt DeHart have filed a habeas petition in the Eastern District of Kentucky. The motion, filed this Monday 16 July by Fred Jennings of Tor Ekeland Law PLLC, contests the decision ofthe warden at FCI Ashland to revoke the 14.5 months of time-served credit that was a presumed part of DeHart’s plea deal in 2015.
Matt DeHart is a former US Air National Guard drone team member and alleged courier of FBI documents destined for WikiLeaks. After becoming the subject of a national security investigation, and allegations relating to a teenage pornography case which he vehemently denies, Matt fled from the United States to Canada with his family to seek political asylum and protection under the United Nations Convention Against Torture. The Canadian Immigration and Refugee Board judge found that the allegations against Matt lacked credibility, but denied his asylum claim on grounds that his case should be resolved in the US.
Matt was then imprisoned in Canada in maximum security facilities for over a year, awaiting transfer to a US jail – 439 days in all.
Facing 40 years in a US prison, Matt was forced to sign a plea deal in which he agreed to a seven-and-a-half-year prison sentence, excluding – or so he thought – the full three and a half years of time served. As the habeus petition notes,
In plea negotiations and at his sentencing hearing, all parties in the Tennessee case presumed these days would be credited to Mr. DeHart as pretrial custody. This time was credited in the [BOP’s] initial sentencing calculation, which scheduled Mr. DeHart’s release on September 11, 2018. Mr. DeHart served over one and a half years in prison under that sentencing calculation.
In August 2017, FCI Ashland personnel presented Matt with a questionnaire regarding foreign custody, but they denied him the access to counsel he requested to complete it. In a BOP letter dated 21 August 2017, this event was reframed as if Matt had requested a sentencing recalculation. Matt was informed that his Canadian time would not be credited, making a difference to his sentence of 14.5 months.
As those in US custody have no immediate right to challenge prison policies in the courts, Matt then had to spend over six months pursuing and exhausting all administrative remedies, all of which were denied.
Matt DeHart explains the recalculation and his efforts to challenge it:
It’s been almost a year since the BOP arbitrarily and without due process recalculated credit they had already given me for time spent in Canadian maximum security prison conditions. Overnight, they extended my release date at FCI Ashland by over 14 months. You can imagine how
heartbreaking and frustrating that was and is for me. Since I am one of only a handful at the prison forbidden from using computers or email I was forced to spend many hours researching physical material in the prison library preparing to seek redress through the BOP’s maze of its Administrative Review Process. I had to manually type my submissions.
First I had to submit my 20 plus page request to the prison warden. After many weeks I got his rejection. Then, I had to type a brand new submission which I sent at my own expense to the regional level in Maryland. After many more weeks that was rejected. Finally I again retyped a new submission which I sent to the BOP General Counsel in DC at my own expense. The BOP at first rejected this submission outright without review because I had one copy of four of an attachment in the wrong place. I had to resubmit it again at my own expense. After still more weeks the BOP rejected my final submission. Now a federal judge in Kentucky will review the Habeas Corpus motion submitted by Fred Jennings challenging the BOP’s recalculation and revocation of my Canadian prison credit. He or she has the power to decide if I will be reunited with my family this September or have to wait another 14 months beyond that wondering what else will be done to keep me behind bars.
Matt’s parents Paul and Leann DeHart, commented on the new filing:
We are hopeful that the judge assigned to review the motion filed by Fred Jennings on Matt’s behalf believes protecting the civil rights of US citizens from the abuse of government power is important. We are thankful to Courage for their support and to everyone who follows Matt’s case. We pray for a positive ruling so that we can see Matt freed in September.
The motion challenges the “punitive misapplication of the rules for calculating credit from foreign pretrial custody.” It contests the BOP’s assertion that MDH was in immigration detention, describing how MDH spent 439 days maximum security detention in Canada because of pending charges in the Middle District of Tennessee. Matt’s parents, who were in the same immigration position during that period, were never detained. Furthermore, all involved in the plea negotiation expected time to be credited and the prison’s decision appears to have been taken after Matt DeHart was denied legal advice, representing multiple infringements of his due process rights.
Courage director Naomi Colvin gave the following statement:
Matt DeHart has faced abuses of power in too many tiers of the US judicial system to count. This latest move to extend his sentence is a disgrace, a purely punitive move with no legal justification. Matt agreed to a plea deal on terms that the BOP changed on a cruel whim more than a year after the fact. Matt must be allowed to return home this year.
The motion requests the court order that Matt be able to leave prison on his original release date of 11 September 2018. There is no set deadline for the court’s response.