United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WILHOIT, JR. UNITED STATES DISTRICT JUDGE.
Matthew DeHart is an inmate at the Federal Correctional
Institution ("FCI")-Ashland, located in Ashland,
Kentucky. Represented by counsel, DeHart has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241, in which he challenges the computation of his sentence
by the Bureau of Prisons ("BOP"), specifically
whether he is entitled to 439 days of foreign custody credit.
[D.E. No. 1] The Respondent has filed his response to the
petition [D.E. No. 10], and DeHart has filed a reply. [D.E.
No. 12] Thus, this matter is ripe for review.
petition, DeHart states that, from 2005 until his 2010
arrest, he was affiliated with the Internet activist group
"Anonymous," and was a system administrator for a
communal Tor server used by members of that group. [D.E. No.1
at p. 8] DeHart alleges that, from 2008 through
2010, "files appeared on this server that among other
things, implicated a federal agency in criminal activity
against United States citizens, as well as documented
apparent malfeasance by American and multinational
companies." [Id.] DeHart further claims that,
during this period he "was also part of a drone team at
one of the main U.S. Drone Operations Centers in Terre Haute,
Indiana, where he had access to top secret information."
August 6, 2010, a warrant was issued for DeHart's arrest
based on a criminal complaint filed in the United States
District Court for the Middle District of Tennessee alleging
that DeHart had knowingly coerced a minor to engage in
sexually explicit conduct for the purposes of producing any
visual depiction of such conduct, knowing that such visual
depictions would be transported in interstate commerce, in
violation of 18 U.S.C. § 2251(a). See United States
v. Matthew DeHart, No. 3:10-cr-250-1 (M.D. Tenn. 2010).
to Respondent, on August 6, 2010, DeHart was arrested in the
District of Maine by the Federal Bureau of Investigation
("FBI") for manufacturing obscene material. [D.E.
No. 10-1 at Page ID# 132] However, according to DeHart, on
August 6, 2010, he was detained by Immigration and Customs
Enforcement ("ICE") agents after crossing the
border from Canada into the United States at the
international border crossing in Calais, Maine, because his
border crossing set off an alert indicating that he was
wanted for questioning in an espionage matter. [D.E. No. 1 at
p. 9] DeHart further alleges that the ICE agents subsequently
handed DeHart over to the FBI who placed him in a detention
cell and then later began interrogating him regarding
national security matters. [Id.] DeHart claims that,
while he was detained in Maine, FBI agents tortured him
(including depriving him of food and sleep) and repeatedly
interrogated him without counsel regarding national security
matters, despite his repeated requests for counsel.
[Id. at p. 9-10]
initial appearance was conducted by a United States
Magistrate Judge in the District of Maine on August 9, 2010,
and continued to August 11, 2010. See United States v.
Matthew DeHart, No. 3:10-cr-250-l (M.D. Tenn. 2010).
After a detention hearing, the Magistrate Judge determined
that DeHart was a flight risk and ordered that he be detained
and transferred to the Middle District of Tennessee. On
October 6, 2010, a federal grand jury sitting in the Middle
District of Tennessee issued an Indictment charging DeHart
with one count of production of child pornography in
violation of 18 U.S.C. §§ 2251(a) and 2251(d)
(Count One) and one count of transportation of child
pornography in violation of 18 U.S.C. §§
2252A(a)(1) and 2252(b)(1) (Count Two).
22, 2012, DeHart was released on bond pending trial, with
special conditions. On April 3, 2013, while awaiting trial on
the child pornography charges, DeHart entered Canada,
requesting refugee protection and political asylum, based on
his claims that he had been tortured by the United States
authorities when he was detained in Maine and feared
persecution if he was returned. [D.E. No. 10-1 at Page ID#:
April 4, 2013, after DeHart failed to appear for a status
conference and detention review hearing, a bench warrant was
issued for his arrest by the District Judge in the Middle
District of Tennessee. Also on April 4, 2013, DeHart was
arrested by the Canada Border Services Agency on the grounds
that his refugee claim was suspended pending an admissibility
hearing under applicable Canadian law. [D.E. No. 10-1.
Reasons for Judgment issued by the Canadian Federal Court,
2013 FC 936, Sept. 5, 2013 at Page ID# 146] On April 8, 2013,
DeHart was ordered to be detained on the grounds that he was
a danger to the public and unlikely to appear for future
immigration proceedings due to the serious nature of the
child pornography charges pending against him, the
allegations of espionage, and his history of violating court
August 7, 2013, another detention review hearing was held and
DeHart's release was authorized, subject to certain
conditions, including GPS monitoring. [Id. at Page
ID# 148-149]. However, in April 2014, DeHart failed to report
a change of address to the Canadian Border Services Agency.
Accordingly, on April 23, 2014, DeHart was rearrested by the
Canada Border Services Agency and held in a maximum-security
criminal facility after a Canadian court determined that he
violated his release conditions.
request for asylum was denied by Canadian authorities and he
was deported to the United States on March 1, 2015. On that
same day, he was arrested by the FBI at the United
States/Canadian border and was turned over to the custody of
the United States Marshals.
November 12, 2015, a Superseding Information was issued in
the Tennessee criminal case charging DeHart with two counts
of receiving child pornography in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and 2252A(b)(1) (Counts One and
Two) and one count of failure to appear in violation of 18
U.S.C. §§ 3146(a)(1) and 3146(b)(1) (Count Three).
That same day, and pursuant to a plea agreement with the
United States, DeHart pled guilty to the three counts charged
in the Superseding Information. On February 22, 2016, DeHart
was sentenced in the United States District Court for the
Middle District of Tennessee to a term of imprisonment of 72
months each on Counts One and Two (to run concurrently with
each other) and 18 months on Count Three (to run
consecutively to the terms imposed on Counts One and Two),
for a total term of imprisonment of 90 months.
has computed DeHart's sentence to commence on February
22, 2016, the date it was imposed. DeHart was credited with
time spent in custody from August 6, 2010, the original date
of his arrest, through May 22, 2012, the date that he was
released on bond. DeHart was also credited with time spent in
custody from March 1, 2015, the second date of his arrest by
federal authorities after his deportation from Canada,
through February 21, 2016, the day before the federal
sentenced commenced. In addition, DeHart is projected to earn
352 days Good Conduct Time ("GCT"), resulting in a
projected Statutory Release Date of November 24, 2019. [D.E.
No. 10 at p. 4-5]
original computation of DeHart's sentence, the BOP
credited DeHart for all of the time spent in Canadian custody
pending his admissibility hearing on his asylum claim. [D.E.
No. 1-2] However, on August 21, 2017, after an investigation
into the possibility of foreign jail credits in DeHart's
case, an official with the Designation and Sentence
Computation Center issued a Memorandum for File concluding
that DeHart is not authorized credit under 18 U.S.C. §
3585(b) for time detained in Canada because he was detained
because he requested asylum and then he was deported to the
United States after his asylum request was rejected. [D.E.
No. 1-3] Accordingly, the BOP recalculated DeHart's
sentence, no longer crediting him with the time spent in
Canadian custody. [D.E. No. 1-4]
§ 2241 habeas petition filed in this Court, DeHart
requests this Court to reinstate his prior custody credit for
the approximately 439 days that he spent in detention in
Canada, first from April 3, 2013 through August 7, 2013 and
then from April 23, 2014 through February 28, 2015. He claims
that the BOP only recalculated his sentence to exclude his
foreign custody credit after he requested to speak with
counsel. In addition, he claims that he accepted his plea
agreement because he was led to understand that he would be
credited with his time spent in foreign custody, thus the
BOP's change in position violates his due process rights
and the Double ...