Hunt v. Tucker

875 F. Supp. 1487

Harold Guy HUNT, Petitioner, v. Kenneth TUCKER, Winfred Smithson, John S. Nettles, Judith C. O'Connor, and Louie S. Grimes, Respondents.

No. CV-94-N-1851-NE.

United States District Court, N.D. Alabama, Northeastern Division.

January 9, 1995.

As Corrected March 9, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George Beck, Montgomery, AL, William N. Clark, Redden Mills & Clark, Birmingham, AL, for petitioner.

P. David Bjurberg, Rosa H. Davis, Stacey S. Houston, James H. Evans, Atty. Gen., Office of the Atty. Gen., Montgomery, AL, for respondents.

MEMORANDUM OF OPINION

EDWIN L. NELSON, District Judge.

This is a petition for the writ of habeas corpus filed by a person in custody¹ of the State of Alabama following a criminal conviction in the courts of that state. 28 U.S.C. § 2254.

I. Introduction.

In this petition Harold Guy Hunt, the former governor of the State of Alabama (hereinafter "the petitioner" or "Mr. Hunt"), asserts that he was charged, tried, convicted, sentenced and removed from office by the use of procedures that did not conform to the standards of the United States Constitution. The court, after full consideration of the forty-three volume record, the controlling law, and some two hours of oral argument, has concluded: (1) in a single instance Mr. Hunt is correct; (2) applicable habeas corpus law does not authorize this court to correct the error; and (3) that the petition is due to be denied in all respects.

The writ of habeas corpus, the "great writ," has its roots in the common law of England² and, by the summer of 1787, was so well established that the framers of our Constitution believed it unnecessary to affirmatively authorize it. Cechariah Chafee, Jr., The Most Important Human Right in the Constitution, 32 B.U.L.Rev. 143, 146 (1952). They did, however, ensure that the people would not be deprived of its benefits. "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. The writ of "habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress." Johnson v. Eisentrager, 339 U.S. 763, 798, 70 S.Ct. 936, 954, 94 L.Ed. 1255 (1950) (Black, J., dissenting).

All federal constitutional rights that have been incorporated into the Fourteenth Amendment Due Process Clause and thereby made applicable to the states are cognizable on a petition for the federal writ of habeas corpus. Brown v. Allen, 344 U.S. 443, 464, 73 S.Ct. 397, 411, 97 L.Ed. 469 (1953). Habeas corpus review is essentially an examination of the process employed by the state courts which resulted in the conviction and sentence of the petitioner.

An inquiry whether an exercise of power such as detention, is "lawful" could meaningfully address itself ... not so much to the substantive question whether truth prevailed but to the institutional or functional one, whether the complex of arrangements and processes which previously determined the facts and applied the law validating detention was adequate to the task at hand.

Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963). In other words, the guilt or innocence of the petitioner is not at issue when the federal judge considers a state prisoner's petition for a writ of habeas corpus.³

The Supreme Court, as recently as 1993, confirmed that a claim of "actual innocence" on the part of a habeas petitioner does not state a constitutional claim. Herrera v. Collins, ___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) ("A claim of `actual innocence' is not itself a constitutional claim." Id. at ___, 113 S.Ct. at 862. "Newly discovered evidence relevant only to a state prisoner's guilt or innocence is not a basis for federal habeas corpus relief." Id. at ___, 113 S.Ct. at 875.) (Scalia, J., concurring). Consequently, this court does not reach the question of whether Mr. Hunt was guilty or not guilty of the offense for which he was convicted. The evidence which was presented against him has been detailed in this opinion, and others, if they choose to do so, may form their own opinions about his conduct in the Office of Governor of the State of Alabama. What the court has done is apply the applicable law to the record which was presented to it. The Constitution and the law require it and the court can do no less. It can do more.⁴

In Section II. of this opinion, the court describes the background of this petition, demonstrating how it reached the posture in which we find it. In Section IV.A., the court discusses the claim that the petitioner was a victim of the Attorney General's vindictive and invidious decision to single him out for prosecution in retaliation for his having exercised political and associational rights under the First Amendment and explains why Mr. Hunt cannot establish a prima facie case of selective and vindictive prosecution. In Section III., the court will describe the evidence which was presented against the petitioner during his trial and, in Section IV.E.1., will demonstrate why that evidence was sufficient, in a constitutional sense, to justify the jury in finding Mr. Hunt guilty of the crime charged against him. The court will examine the so-called "judicial ex post facto" claims in Section IV.B. and in Section IV.B.2. will demonstrate that the Alabama Supreme Court decision regarding the meaning of the "obtains direct personal financial gain" language of the Alabama Ethics Act was neither "unexpected" nor "indefensible" and did not have the effect of reviving an expired statute of limitations or of violating the petitioner's substantive right to due process. The court, in Section IV.B.3., will explain why the same is true with the jury instructions. In Section IV.D., the court examines the indictment on which the petitioner was required to stand trial, explains why it was not authorized by preexisting Alabama law, and finds that, though the indictment was entirely defective, it is not a proper subject, under federal law, over which this court sitting as a habeas corpus court has the power to correct. The court will examine the petitioner's remaining claims in Sections IV.E.2.a., IV.E.2.b., IV. E.3. and IV.E.4. and will explain why his rights were not violated as claimed.

II. Background.

On December 28, 1992, a grand jury sitting in the Circuit Court of Montgomery County, Alabama, returned a thirteen-count indictment charging Harold Guy Hunt, the then sitting governor of the State of Alabama, with using his office for personal gain in violation of Alabama Code Section 36-25-5 (1975) (Count One),⁵ theft of property in violation of Alabama Code Section 13A-8-3 (Counts 2, 3, 5, 6, 8 and 9),⁶ receiving stolen property in violation of Alabama Code Section 13A-8-17 (1975) (Counts 4, 7 and 10),⁷ and conspiracy to commit theft of property in violation of Alabama Code Section 13A-4-3 (1975) (Counts 11, 12 and 13).⁸ Counts Two through Thirteen were dismissed prior to trial because those charges were brought without the applicable period of limitations.⁹

The petitioner entered a plea of not guilty as to Count One and the trial was begun before a jury on April 12, 1993. On April 22, 1993, the jury returned a verdict of guilty as charged in Count One. The Alabama Court of Criminal Appeals affirmed on December 13, 1993, and denied a petition for rehearing on January 12, 1994. Hunt v. Alabama, 642 So.2d 999 (Ala.Crim.App.1994) (per curiam). The Alabama Supreme Court granted Mr. Hunt's petition for the writ of certiorari, affirmed the conviction in all respects, and denied a petition for rehearing. Ex parte Hunt, 642 So.2d 1060 (Ala.1994) (per curiam).¹⁰

After a thorough review of the trial record and the briefs of counsel, the court conducted a hearing on November 29, 1994, for the purpose of receiving argument only. The court declined, at that time, to receive any evidence.¹¹ Now, upon further review of the entire record, the court has determined that the petitioner is not entitled to an evidentiary hearing on any issue and that each claim raised by him can and should be determined upon the state court record alone.

III. The Facts.

The petitioner was elected Governor of the State of Alabama on November 4, 1986, and, soon thereafter, a committee to oversee transitional and inaugural matters was formed.¹² Mr. John Grenier, a political associate of the petitioner, retained Ms. Judy Pittman to act as the Executive Director of the Inaugural Committee. (R. 37, p. 818)¹³ According to Ms. Pittman, the goals of the Inaugural Committee "were to raise funds to pay for the Inauguration and the transition of this government and to pay for the activities ... surrounding the Inauguration ... and to raise money for the political account." (R. 37, p. 822)

Mr. James W. Wilson, Jr., was named Chairman of the Inauguration Committee. Seemingly, his primary function was to raise the funds referred to by Ms. Pittman. Mr. Wilson identified a "mailgram" sent by Mr. Hunt to potential "Finance Committee" members on December 17, 1986, which stated:

Dear ____, using this means (sic) reaching you as quickly as possible, request your immediate help in fundraising efforts to underwrite costs of all Inaugural and transition team expenses. No taxpayers' money is being used. My Chairman of the Inauguration, Jim Wilson, has detailed letter arriving at your office tomorrow outlining Finance Committee members' responsibilities and what you can expect in return from us. Am only asking trusted and valued friends such as you to assist in this critically important effort. Hope with all my heart I can count on you to help. At earliest date after Helen and I get settled into

...