Full opinion text
MEMORANDUM OF OPINION EDWIN L. NELSON, District Judge. This is a petition for the writ of habeas corpus filed by a person in custody of the State of Alabama following a criminal eonviction 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 England 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 Bight in the Constitution, 82 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 “[hjabeas 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. [A]n 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. 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. “[Njewly 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. 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.l., 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 TV.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), theft of property in violation of Alabama Code Section 13A-8-3 (Counts 2, 3, 5, 6, 8 and 9), receiving stolen property in violation of Alabama Code Section 13A-8-17 (1975) (Counts 4, 7 and 10), and conspiracy to commit theft of property in violation of Alabama Code Section 13A-4-3 (1975) (Counts 11, 12 and 13). Counts Two through Thirteen were dismissed prior to trial because those charges were brought without the applicable period of limitations. 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). 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. 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. 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) 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 our new home, will have all Finance Committee members who meet their goals and their spouses as guests at private reception at mansion. Want to have cabinet and their spouses present, too, so look forward to a wonderful evening with good friends. Am counting on you, so please don’t let me down. I am more grateful to you for this and other help than you will ever know. Kindest regards, sincerely, Guy Hunt, Governor-elect. On December 21, 1986, Mr. Wilson followed up on Mr. Hunt’s mailgram by letter to the potential “Finance Committee” members. In pertinent part, he said: Dear Friend, the Inauguration of Guy Hunt as Governor of Alabama on January the 19th 1987, will mark the beginning of a historic new era in our state'. I am writing you today to ask for your participation in this important event. There are several ways you can help. First, let me take a moment to tell you why it is so important that you help make the Inaugural activities financially successful. All the expenses of the Inaugural preparation, the cost of the transition to the new administration and the cost of the Inaugural events themselves must be paid for by the Hunt Transition and Inaugural Fund, Inc. The proceeds from the sale of Inaugural tickets, advertising and other contributions, will go into that account and will be used to pay for all of these activities____ I can assure you that the Alabama Inaugural Committee is working very hard to make the Inauguration of Guy Hunt a memorable event for you. We hope you’ll enjoy your stay in Montgomery as you participate in this historic occasion. Additionally, the Transition teams are hard at work to construct a government that will keep faith with the people who voted for Governor Hunt in November. We need your help. Please do what you can. It’s so important, and all of us who are involved will be grateful to you for your support. If you have any questions about ticket sales or advertising, please contact the Inaugural office. The staff will be glad to help you. Sincerely, Jim. Enclosed with the letter was a form response letter addressed to Wilson. On that form letter, potential Finance Committee members were asked to indicate in what manner they were willing to participate in the inaugural events and fundraising efforts. Mr. Wilson instructed recipients of the letter that corporate checks for advertising should be made out to HT & IF, and that personal checks should be made out to the 1987 Alabama Inaugural Committee. (R. 34, p. 359) Evidence was also presented that additional letters were sent to recruit potential Finance Committee members. Ms. Pittman testified that included in these letters was a postscript that stated: Corporate checks can be accepted for any advertising and should be made payable to the Hunt Transition and Inaugural Fund, Inc. or Hunt T & I Fund, Inc. Personal checks or PAC checks must be tendered for ticket purchases and should be made payable to the 1987 Alabama Inaugural Committee. (R. 37, p. 849) A similar postscript was also included in a letter dated January 13, 1987, signed by Ms. Pittman, thanking contributors for contributions. (R. 37, p. 866) In addition, some of the tickets sold for Inaugural events included a disclaimer, “Not for sale to corporations. Part of the proceeds may be used for political purposes.” (R. 37, p. 861) However, many of the contributors did not actually receive their tickets for inaugural events until the date of the particular event. (R. 37, pp. 914-915) On December 31,1986, Articles of Incorporation for the Hunt Transition and Inaugural Fund, Inc. (“HT & IF”) were signed by Nancy Elizabeth Porter as the principal incorporator. An accompanying certificate by the probate judge of Cullman County, Tom Burleson, indicated that the HT & IF was to be a non-profit corporation. The Articles of Incorporation along with the certification as a non-profit entity were received and filed in the Office of the Secretary of State on January 2, 1987. Those Articles, in pertinent part, provided that the purpose of the HT & IF was: • To provide a nonprofit organization to receive and administer funds provided by contributions, subscriptions and other sources to: a. Effect an orderly and efficient transfer of the Office of Governor of Alabama to Honorable Guy Hunt, Governor-Elect; b. Defray a part of the cost of the Inauguration of Governor Hunt; c. Renovate and improve the building provided by the State as a residence for the Governor and his family and known as the Governor’s Mansion; d. Assist the Governor and his staff to promote the general interest and welfare of the State of -Alabama and its People in various other ways, including, without being so limited, through attracting additional business and industry to the State, advertising the State and its resources and supporting other organizations with similar or like purposes; e. Promote or carry out other scientific, educational, civic, patriotic, political, historical, literary, religious or charitable purposes as may be permitted by law and are not inconsistent with the provisions of these Articles of Incorporation____ (R. 34, pp. 337-338) The Articles further stated: The name of the initial registered agent ... shall be Harold F. Miller, Jr. ... The initial directors of the corporation are Carl Woodard, ... Edna Earle Hicks, ... James E. Thompson, ... John Edward Grenier, ... and Harold F. Miller, Jr., ... (R. 34, pp. 339-340) On November .26, 1986, an account was opened at the Union Bank and Trust Company at Montgomery, Alabama, under the name of the “1987 Alabama Inaugural Committee,” account number 1205175. (R. 34, p. 373; R. 35, p. 478) The only authorized signatories on that account were Edgar Weldon, Judith ■Pittman and G.R. Swift, Jr. (R. 35, p. 479) Some time in December 1986, the name on the account was changed to the “Hunt Transition and Inaugural Fund, Incorporated.” (R. 35, p. 480) From the time it was opened on November 26, 1986, until February 12, 1987, $722,987.29 was deposited into the account. (R. 35, p. 479) The payees on the checks that were deposited into this account during this period were all variations of “Alabama Inaugural Committee,” “Hunt Inaugural Committee,” “Friends of Guy Hunt Inaugural Committee,” “Hunt Transition and Inaugural Fund,” and “1987 Alabama Inaugural Committee.” (R. 35, p. 482) The majority of these cheeks contained notations indicating that the contributions were for advertising or other Inaugural events. (R. 35, p. 483) Robert L. Frye, a retired FBI agent and investigator for the Attorney General, testified regarding checks that had been deposited into the account. Some of ’em have table; some just list contribution; some have advertising; some specify tickets to the ball; such as eight tickets to the ball, two tickets, general seating; one full page ad for color; PreInaugural dinner; super ticket for Inaugural activities; four tickets to Young Alabama Ball; celebration tickets; two dinner tickets, two general seating tickets; Inaugural Ball. (R. 35, p. 483) On January 8, 1987, an account named “Friends of Guy Hunt” was opened at the Union Bank and Trust Company in Montgomery, account number 203052-7. (R. 35, p. 484) The authorized signatories on this account were Rosie Blocher, Mr. Hunt’s bookkeeper, and Edna Earle Hicks, his confidential assistant. (R. 35, p. 484; R. 36, p. 613) The petitioner was not an authorized signatory. From the date the account was opened to February 12,1987, $394,573.10 was deposited into this account. The payee on checks deposited into the account was the 1987 Inaugural Committee and checks were designated for: Republican Inaugural Committee; Hunt Transition and Inaugural Fund; Alabama Inaugural Committee; Inauguration Committee; 1987 Alabama Inaugural; Guy Hunt Inaugural Committee; Alabama Republican Party; 1987 Alabama Inaugural Committee, and the tickets are made out for such things as — The checks are made out ... [for] such things as contribution; Ball; Inaugural program advertising; Inaugural activities, two tickets to the Inaugural Eve dinner; two for the Inaugural Ball; three tickets for Young Alabamians Ball; two Young Alabamians Inaugural; Governor Hunt Inaugural; two tickets to the Inaugural Ball; donation for Governor Hunt. (R. 35, pp. 485-486) Some checks deposited into that account, fifteen to twenty totalling approximately $10,000.00, were made payable to Friends of Guy Hunt. Some of those were checks issued on the accounts of persons closely associated with the petitioner. (R. 35, pp. 486-489) Some checks which were deposited into the account had initially been endorsed “1987 Inaugural Committee” with the proper account number, but the endorsement was changed to “Friends of Guy Hunt,” account number 203052-7. (R. 35, pp. 494-95) On February 12, 1987, check numbers 101, 102, and 103, each in the amount of $100,-000.00 and payable to “Friends of Guy Hunt,” were written against the “Friends of Guy Hunt” account at Union Bank and Trust Company in Montgomery, account number 203052-7. (R. 35, p. 495) Each was signed by Edna E. Hicks and Rosie Blocher. (R. 35, pp. 396-397) On February 14, 1987, check number 103 was deposited into an existing checking account at First Federal Savings and Loan in Cullman, Alabama, called “Friends of Guy Hunt, Guy Hunt Reserve,” account number 0160075230. (R. 35, pp. 427, 497-98) The only authorized signatories on that account were Mr. Hunt and Edna E. Hicks. (R. 35, p. 432) The account, at the time of the deposit, was overdrawn in the amount of $255.51. (R. 35, p. 498) Between February 16, 1987, and late 1988, Mr. Hunt personally wrote sixty-two checks on that account which totaled $96,159.08. Most, if not all, clearly indicated that they were in payment of obligations which were personal to Mr. Hunt. (See R. 35, pp. 499-517) On February 16, 1987, check number 102, written on the Friends of Guy Hunt account at Union Bank and Trust Company, was deposited into a newly opened “Friends of Guy Hunt” account at AmSouth Bank in Cullman, Alabama, account number 075-00775002. (R. 35, pp. 406-07, 519-20) The signatories on this new account were Guy Hunt, Edna Earle Hicks and Rosie Blocher. (R. 35, p. 521) On June 18, 1987, the entire $100,000.00 was transferred back into the Hunt Transition and Inaugural Fund, Incorporated Account at the Union Bank and Trust Company in Montgomery. (R. 35, p. 521) Between February 16, 1987, and June 18, 1987, the Friends of Guy Hunt account at AmSouth Bank in Cullman earned more than $2,000.00 in interest. (R. 35, p. 521) Following the transfer of the $100,000.00 back to the Union Bank and Trust Company account, several cheeks were written on the remaining interest in the account and signed by Guy Hunt as maker. Check number 101 for $100,000.00, written on the Friends of Guy Hunt account at Union Bank and Trust Company, was deposited into a new savings account at the Cullman Savings and Loan styled “Friends of Guy Hunt,” number 15385-8, which was opened on February 14, 1987. (R. 35, p. 418) The authorized signatories on this new account were Mr. Hunt, Edna Earle Hicks and Rosie Bloeher. (R. 35, p. 426) Also on February 14, 1987, a joint account in the name of “Guy Hunt or Mrs. Guy Hunt,” number 15386-6, was opened at Cullman Savings and Loan. (R. 35, pp. 419-121) Mr. Hunt was the sole authorized signatory on this account. (R. 35, p. 427) The petitioner personally opened both the “Friends of Guy Hunt” account and the “Guy Hunt or Mrs. Guy Hunt” accounts. On November 12, 1988, Mr. Hunt changed the signature cards on both the accounts by signing one signature card, which then represented both accounts. (R. 35, pp. 422-429) This new signature card listed “Guy Hunt or Mrs. Guy Hunt” as the only remaining signatories; however, Mr. Hunt was the only person who actually signed the new card. (R. 35, pp. 422-429) Mr. Patrick Clark, President of Cullman Savings and Loan, testified that once the signature card was changed on the “Friends of Guy Hunt” account, Guy Hunt, individually, became the new owner of the former “Friends of Guy Hunt” account. (R. 35, p. 425) Interest on the account for 1988 was paid to “Guy Hunt or Mrs. Guy Hunt” and that interest was reported by Cullman Savings and Loan to the Internal Revenue Service and the Alabama Department of Revenue as income to Mr. Hunt and his wife. (R. 34, p. 424) Between October 16, 1987, and December 29, 1989, Mr. Hunt made ten withdrawals from either the Cullman Savings and Loan “Friends of Guy Hunt” or the combined “Friends of Guy Hunt” and “Guy Hunt or Mrs. Guy Hunt,” account in the form of cashiers checks which totaled $108,380.00. All the cashier’s checks were used to cover expenses which were personal to Mr. Hunt. IV. The Claims. A. Selective Prosecution. The petitioner contends first that the decision to prosecute him was “arbitrary, capricious, selective and discriminatory” in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In support of this claim, the petitioner argued and proffered evidence that other Alabama public officials had used excess campaign funds for personal use, but that they had not been prosecuted. The petitioner also presented some evidence in this court which suggested an improper prosecutorial motive on the part of the Attorney General, Jimmy Evans. The criminal justice system accords prosecutors broad discretion in determining whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). The courts indulge a rebuttable presumption that criminal prosecutions are undertaken in good faith and not for any discriminatory or improper reason. Johnson v. Wainwnght, 778 F.2d 623, 630 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987) (A prosecutor’s exercise of discretion carries great weight because of the public belief that the prosecutor acts with expertise and in the interest of justice). Furthermore, this discretion is “particularly ill-suited to judicial review.” Wayte, 470 U.S. at 607, 105 S.Ct. at 1530. Nonetheless, such discretion is not unfettered; “[sjeleetivity in the enforcement of criminal laws is ... subject to constitutional constraints.” Id. at 608, 105 S.Ct. at 1531, citing United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979). Specifically, the decision to prosecute may not be “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ ” Wayte, 470 U.S. at 608, 105 S.Ct. at 1531, quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604 (1978), quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962), “including the exercise of protected statutory and constitutional rights.” Wayte, 470 U.S. at 608, 105 S.Ct. at 1531, citing United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). A prosecutor may not select an individual for prosecution solely because of the exercise of rights under the First Amendment. Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 n. 4, 106 S.Ct. 3172, 3178 n. 4, 92 L.Ed.2d 568 (1986). However, to show selective prosecution, the petitioner must overcome a “heavy burden” by establishing two requirements. First, the petitioner must establish that he has been singled out for prosecution when others, similarly situated, have committed the same acts and have not been prosecuted. Jones v. White, 992 F.2d 1548, 1571 (11th Cir.), cert. denied, — U.S. —, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993), and cert. denied, — U.S. —, 114 S.Ct. 727, 126 L.Ed.2d 691 (1994); Owen v. Wainwright, 806 F.2d 1519, 1523 (11th Cir.1986) (per curiam), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 875 (1987). Second, the petitioner must demonstrate that he was invidiously selected for prosecution. Jones, 992 F.2d at 1571; Owen, 806 F.2d at 1523. Here, the petitioner must establish that the Attorney General was prompted by “constitutionally impermissible motives such as racial or religious discrimination or [the petitioner’s] exercise of constitutional rights.” Owen, 806 F.2d at 1523. The evidence proffered to the trial court is sufficient to meet the first prong of the prima facie ease only if the monies which were the subject of the indictment were in fact “campaign funds.” There is substantial evidence in the record to support a finding that the monies were campaign funds. Judy Pittman, Executive Director of the Inaugural Committee, testified that the funds were raised “to pay for the transition and the Inauguration and to raise campaign dollars.” (R. 37, p. 825) In addition, James W. Wilson, Jr., Chairman of the Alabama Inaugural Committee in 1987, testified that he understood “that if there were any funds left over after we had paid all the Inaugural bills, that they would be available for political purposes, whatever that need may be, whether you paid campaign expenses or future campaign expenses.” (R. 34, p. 371) Furthermore, letters and tickets to inaugural events, although issued subsequent to receiving contributions, indicated that some of the funds might be used for political purposes. However, the record is also replete with evidence that the funds were raised for transition and inaugural expenses. Specifically, the mailgram from Mr. Hunt, which initiated the solicitation of the funds, referred only to contributions to underwrite the transition and inauguration. In addition, Mr. Wilson’s letter following the mailgram referred only to funds to be raised for the transition and inauguration. Both Alabama appellate courts found the monies were not “campaign funds,” but provided little analysis to support that conclusion. The Alabama Court of Criminal Appeals stated, “we find that the funds in question in this case were solicited on behalf of a non-profit (sic) corporation, after Hunt had been elected, and so were not ‘excess campaign funds’ ” and “this case does not involve excess campaign funds.” Hunt v. Alabama, .642 So.2d 999, 1006, 1014 (Ala.Crim.App. 1994). The Alabama Supreme Court said, “This argument might have some force if the funds involved were, in fact, campaign funds. However, the facts show that the funds used by Hunt were not campaign funds, but that they were, instead, funds solicited by and contributed to a nonprofit charitable corporation.” Ex parte Hunt, 642 So.2d 1060, 1064 (Ala.1994). On federal habeas review, the district court, in the absence of any of the conditions of 28 U.S.C. § 2254(d), must presume that state court findings of historical fact are correct. Thus, the Alabama Supreme Court’s finding that the funds at issue were not campaign funds must be presumed correct, provided the threshold conditions of § 2254(d) are met and none of the exceptions of that section are present. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). This presumption of correctness does not apply to legal conclusions or to mixed questions of law and fact. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The difference between factual and legal findings has been described thus, Factual issues involve “what are termed basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators____’ ” Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745 [756 n. 6], 9 L.Ed.2d 770 (1963), quoting, Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397 [446], 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). On the other hand, mixed questions of law and fact involve “the application of legal principles to the historical facts of [the] case.” Cuyler, 446 U.S. at 342 [100 S.Ct. at 1715]. As Justice Frankfurter once stated: “Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts ... the [Federal] Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.” Brown, 344 U.S. at 507 [73 S.Ct. at 446] (opinion of Frankfurter, J.). Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983). It is not entirely clear that the question of whether the monies were, or were not, campaign funds is one of fact or whether it is one of law. The trial court apparently considered it a question of fact. The court’s jury charge permitted the jury to return a verdict based upon one of at least three theories. First, the jury could have concluded that the funds at issue were campaign funds and that they were lawfully expended. Second, the jury could have concluded that the funds were campaign funds and that they were unlawfully expended. Third, the jury could have concluded that the funds were not campaign funds but funds raised for inaugural and transition expenses, and that they were unlawfully converted to Mr. Hunt’s “direct personal financial gain.” Thus, at the trial level, the question of whether or not the monies were “campaign funds” was left to the jury. Both the Court of Criminal Appeals and the Supreme Court of Alabama seemingly treated the issue as either a question of law or a mixed question of fact and law. In either event, this court’s treatment of the issue is the same. If the question is one of fact, the conclusion by the Alabama Supreme Court must stand, because the § 2254(d) threshold is met. In the absence of any of the eight § 2254(d) factors, the petitioner may overcome the presumption of correctness only by establishing by clear and convincing evidence that the state court’s factual finding was wrong. Sumner v. Mata, 449 U.S. at 546, 101 S.Ct. at 768. The evidence admitted during the trial plainly supports, but certainly does not compel, the factual conclusion that the funds at issue were not “campaign funds.” If the question is one of state law or a mixed question of law and fact, this court may not second-guess the conclusions of the Alabama Supreme Court concerning the application of Alabama law to findings of historical fact. “[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions.” Estelle v. McGuire, 502 U.S. 62, 63, 112 S.Ct. 475, 477, 116 L.Ed.2d 385 (1991); see also, McBride v. Sharpe, 25 F.3d 962, 972 (11th Cir.), cert. denied, — U.S. —, 115 S.Ct. 489, 130 L.Ed.2d 401 (1994). While generally a federal habeas court must review mixed question of fact and law de novo, application of state law to findings of historical fact by the state court must be distinguished from the application of federal constitutional principles to findings of historical fact. Errors of the latter kind must be reviewed de novo by the federal habeas court; a determination of the former “would nevertheless remain a question of state law, errors of which are not cognizable in federal habeas proceedings.” Lewis v. Jeffers, 497 U.S. 764, 783, 110 S.Ct. 3092, 3103, 111 L.Ed.2d 606 (1990). Thus, the Alabama Supreme Court’s conclusion that the funds at issue were not “campaign funds” is not reviewable by this court upon a habeas corpus petition. Since the funds at issue were not campaign funds, the petitioner has failed to establish the first prong of the prima facie case of selective prosecution. Specifically, petitioner has failed to present evidence of any other Alabama public official who was not prosecuted for converting non-campaign funds to personal use. B. Judicial Ex Post Facto. 1. General Principles. The petitioner asserts two aspects of the proceedings resulting in his conviction denied him due process in violation of the Fourteenth Amendment in a manner akin to ex post facto violations. First, Mr. Hunt contends that, by construing the “direct personal financial gain” language of Alabama Code Section 36-25-5 (1975) so that the ethics violation was not complete until he spent the last of the funds from the First Federal Savings and Loan and the Cullman Savings and Loan accounts, the Alabama Supreme Court impermissibly revived the then-expired statute of limitations, as established at Alabama Code Section 15-3-1 (1975). Second, he contends that prior to the trial court’s instruction to the jury that it was unlawful to convert excess campaign funds to personal use, it was well established in Alabama law that such use was permissible. Article I, § 10, of the United States Constitution prohibits the states from passing ex post facto laws. This prohibition applies directly to state legislatures, but the Supreme Court has held that the Due Process Clause protects criminal defendants against action by the judiciary that would contravene the ex post facto clause if done by the legislature. Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964). [A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids____ If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Bouie, 378 U.S. at 353-54, 84 S.Ct. at 1702. 2. The Statute of Limitations. Mr. Hunt asserts that the Alabama Supreme Court’s construction of the Ethics Act, that funds received by the wrongdoer must be “spent” before he “obtains direct personal financial gain,” was an “unexpected and indefensible” change in then existing law which had the effect of reviving the statute of limitations applicable at the time the offense was committed. a. Exhaustion of State Remedies and Procedural Default. Respondents assert that the petitioner proeedurally defaulted on this claim because “it was raised for the first time in [his] rehearing brief to the state supreme court” and because it was not adequately brought to the attention of that court on the petition for rehearing. Generally, a state prisoner must exhaust remedies available to him in state court before becoming eligible to have his claims considered by the federal habeas court. 28 U.S.C. § 2254(b), (c); Pi-card v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (“We ... hold that the substance of a federal habeas corpus claim must first be presented to the state courts.”); Walker v. Zant, 693 F.2d 1087 (11th Cir.1982); Bufalino v. Reno, 613 F.2d 568 (5th Cir.1980). The requirement is a “codification of a federal jurisdictional policy designed ‘to effect a proper balance between the roles of state and federal judicial institutions in protecting federal rights.’ ” Ogle v. Estelle, 592 F.2d 1264, 1267 (5th Cir.1979). As a matter of comity, this policy requires the federal courts to allow the states the initial opportunity to pass upon and correct alleged violations of its prisoners’ rights. Fay v. Noia, 372 U.S. 391, 437-38, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963); see also Bell v. Wainwright, 531 F.2d 1339 (5th Cir. 1976). State prisoners must have fairly presented the substance of their claim to the state courts. See Manning v. Alabama, 526 F.2d 355 (5th Cir.1976); Alonzo v. Estelle, 500 F.2d 672 (5th Cir.1974). Respondents assert that the petitioner dis-entitled himself to relief in this court by proeedurally defaulting on the “judicial ex post facto” claim in state court. They argue that the issue should have been raised in the trial court, on direct appeal in the court of appeals and on the petition for the writ of certiorari in the Alabama Supreme Court. If a petitioner has proeedurally defaulted on a constitutional claim, he is barred from litigating that claim in a federal habeas corpus proceeding unless he can show adequate “cause” for and “actual prejudice” from the default. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The “cause and prejudice” test of Coleman v. Thompson, Engle v. Issac and Wainwright v. Sykes is in the conjunctive — the petitioner must prove both cause and prejudice. The court is satisfied, first, that there was no procedural default and, second, that if the petitioner defaulted the claim, both the cause and the actual prejudice standards are met here. In Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988), the United States Supreme Court spoke to the standard used to determine whether a habeas petitioner has established “cause” for a procedural default: In Wainwright v. Sykes, 433 U.S. 72 [97 S.Ct. 2497, 53 L.Ed.2d 594] (1977), this Court adopted the “cause and prejudice” requirement of Francis v. Henderson [425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) ], for all petitioners seeking federal habeas relief on constitutional claims defaulted in state court. The Sykes Court did not elaborate upon this requirement, but rather left open “for resolution in future decisions the precise definition of the ‘cause’-and-'prejudice’ standard.” 433 U.S., at 87 [97 S.Ct. at 2507], Although more recent decisions likewise have not attempted to establish conclusively the contours of the standard, they offer some helpful guidance on the question of cause. In Reed v. Ross, 468 U.S. 1 [104 S.Ct. 2901, 82 L.Ed.2d 1] (1984), the Court explained that although a “tactical” or “intentional” decision to forgo a procedural opportunity normally cannot constitute cause, id., at 13-14 [104 S.Ct. at 2909], “the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the [cause] requirement is met.” Id., at 14 [104 S.Ct. at 2909]. The Court later elaborated upon Ross and stated that “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 [106 S.Ct. 2639, 2645, 91 L.Ed.2d 397] (1986). We explained that “a showing that the factual or legal basis for a claim was not reasonably available to counsel, ... would constitute cause under this standard.” Ibid. (Citations omitted.) Amadeo v. Zant, 486 U.S. at 221-22, 108 S.Ct. at 1776. See also, McCleskey v. Zant, 499 U.S. 467, 497-98, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991); Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir.1991). It follows that Mr. Hunt had “cause” for any procedural default if the factual or legal basis for this claim was not reasonably available to him before the Alabama Supreme Court ruled as it did on the “direct personal financial gain” language of the statute. Amadeo v. Zant, supra. See also, Johnson v. Dugger, 911 F.2d 440, 457 (11th Cir.1990), cert. denied, — U.S. —, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992); Presnell v. Kemp, 835 F.2d 1567 (11th Cir.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1004 (1989); Adams v. Dugger, 816 F.2d 1493 (11th Cir.1987), rev’d on other grounds, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). In Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), the Supreme Court addressed the issue of whether an attorney has a “reasonable basis” upon which to develop a legal theory when the “court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application.” 468 U.S. at 17, 104 S.Ct. at 2911. The court indicated that in situations where one of its decisions explicitly overruled one of its precedents, “there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a state court to adopt the position that this Court has ultimately adopted.” Id. A new retroactive case which constitutes a “clear break with the past” will provide the “cause” to excuse a procedural default. This issue was not available to the petitioner in the trial court because that court, without elaborating or stating a factual or reasonably specific legal basis for its decision, simply declined to dismiss Count One of the indictment. The court did not instruct the jury on any issue related to the statute of limitations issue. Thus, the question of whether there would ultimately be a decision that arguably contravened the Due Process Clause because it was an unexpected and indefensible expansion of prior law was not available at the trial court level and could not have been raised in that court or the Court of Criminal Appeals. The Court of Criminal Appeals explained its decision by reference to Alabama Code section 13A-8-l(6), which defines “obtain” as, “In relation to property, to bring about a transfer or purported transfer of a legally recognized interest in the property, whether to the obtainer or another.” Hunt v. Alabama, 642 So.2d at 1018. It then went on to hold: We find without merit and contrary to the evidence Hunt’s, contention that, if at all, he received direct personal financial gain on November 12, 1988, because the Friends of Guy Hunt account was closed and simultaneously a personal account was opened. The witnesses’ testimony and the records themselves clearly show that the account was not closed or merged on November 12, 1988, as Hunt contends, but that it remained in existence well after December 29, 1989, the date of the withdrawal of $11,700. The record refutes any contention that, by the bank’s notations of November 12, there was any transfer of a legally recognized interest in the account to Hunt. No transfer occurred because the interest held by Hunt after November 12 was the same interest he held before November 12. By the clear language and intent of the statute, we find that the elimination of Hicks and Blocher as signatories on the Friends of Guy Hunt account on November 12 did not transfer to Hunt a direct and personal financial gain. Id. at 1020. The Alabama Supreme Court seems to have tried to distance itself from the holding by the court of appeals that Mr. Hunt’s interest in the funds was the same after November 12, 1988, that it had been before that date. Hunt argues that the last possible date that he obtained any gain was November 12, 1988; he says that on that date the Cullman Friends account, into which check number 101 from the Friends account at Union Bank and Trust was deposited, was closed and merged into his personal account. ... The crime was not complete when Hunt became the sole signatory on the account containing funds raised for his inauguration____ ... [W]e conclude, that, upon Hunt’s gaining exclusive control over the Cullman Friends account, the crime defined in terms of the receipt of a “direct personal financial gain” was incomplete. Ex parte Hunt, 642 So.2d at 1067. For the first time in the case, the supreme court held that it was the transfer of the last of the funds from the Cullman Friends account to Mr. Hunt’s personal account and its use to cover a mortgage payment on his farm that completed the offense proscribed by the Ethics Act. Clearly, then, the petitioner had no factual or legal basis to raise the “judicial ex post facto” claim until the Alabama Supreme Court issued its opinion. In his brief in support of the application for rehearing, Mr. Hunt, after arguing the effect of the court’s statute-of-limitations ruling, stated, “To the extent that the Court is now announcing the law of this State to be that a violation of 36-25-5 can only occur when a public official spends his gain, such a statement constitutes a judicial ex post facto law and is prohibited by both state and federal constitutions as discussed previously.” Brief and Argument of Petitioner in Support of Application for Rehearing, at 16 (emphasis added). Mr. Hunt had previously discussed the concepts set out in Bowie and Marks in the context of the trial court’s jury charge. Clearly, then, this language was sufficient to call to the attention of the Alabama Supreme Court his contention that similar principles applied to both the jury charge and its own decision interpreting the “direct personal financial gain” language. Cf., Magill v. Dugger, 824 F.2d 879, 891 (11th Cir.1987); Cooper v. Wainwright, 807 F.2d 881, 886-88 (11th Cir.1987). The prejudice resulting from the application of the Alabama Supreme Court decision to the petitioner’s case is apparent. There could have been no conviction in the absence of the court’s ruling as it did. On the issue of procedural default, the court concludes there was none because the petitioner raised the due process issue in the context of the statute of limitations at the first opportunity. Alternatively, if this be viewed as a procedural default, the petitioner has shown both cause and prejudice for the failure to timely raise the claim. Furthermore, the court concludes there is no effective state remedy that the petitioner may pursue. Basic to the exhaustion doctrine is the requirement that there be a “state remedy” to exhaust. The petitioner, in the name of exhaustion of state remedies, cannot be required to follow a futile course, one that will leave him in exactly the same position he was in before being sent back to state court. Nix v. Whiteside, 475 U.S. 157, 163 n. 3, 106 S.Ct. 988, 992 n. 3, 89 L.Ed.2d 123 (1986); Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981). Alabama has provided a post-conviction remedy which is available to persons convicted in its courts of criminal offenses. Rule 32.1, et seq. Ala.R.Crim.P. It is difficult to see, however, how the remedy could conceivably benefit the petitioner or advance considerations of comity as between the state and federal courts. Here, the decision about which the petitioner complains was made by the Alabama Supreme Court, the highest court in the state. A Rule 32 petition would be filed in the court in which the petitioner was convicted, the Circuit Court of Montgomery County, Alabama. Rule 32.4, Ala. R.Crim.P. Decisions of the' Alabama Supreme Court are binding on the trial court. An appeal would lie to the Alabama Court of Criminal Appeals, and that court is also bound to follow the decisions of the Supreme Court. Review of a new adverse decision from the Court of Criminal Appeals would then be by petition for a writ of certiorari, a discretionary appeal. Rule 39(a), Ala. R.App.P. The petitioner would be left in exactly the same position in which he found himself when he filed his unsuccessful application for rehearing, also a discretionary appeal. The petitioner is entitled to be heard in this court on his “judicial ex post facto” claim as it related to the applicable statute of limitations. b. The State Decision. A violation of the Ethics Act is a felony offense subject to the general three-year statutory period of limitations applicable to felonies in general. Ala.Code § 36-25-27(a) (1975); Britain v. State, 518 So.2d 198, 201 (Ala.Crim.App.1987). The limitations period runs from the time the crime is committed, which is when all its essential elements are present and complete. Pendergast v. United, States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943); Griffin v. State, 352 So.2d 847, 850 (Ala.1977). Thus, a violation of Section 32-25-5 occurs at the moment an Alabama public official knowingly or willfully “obtains direct personal financial gain” from the use of his office. The indictment in this case was returned on December 28, 1992. Accordingly, the conviction must rest on conduct which “completed” a violation of the Ethics Act and which occurred after December 28, 1989. Constitutional ramifications of a post-conduct change in the statute of limitations must be distinguished in terms of whether the change merely extended an unexpired limitations period or whether the change revived a period which had already expired at the time of the change. The cases have consistently held that the application of an extended statute of limitations to offenses occurring prior to the extension, where the prior and shorter statute of limitations has not yet run, does not violate the ex post facto clauses. See United States v. Powers, 307 U.S. 214, 217-18, 59 S.Ct. 805, 807-08, 83 L.Ed. 1245 reh’g denied, 308 U.S. 631, 60 S.Ct. 66, 84 L.Ed. 526 (1939); United States v. Taliaferro, 979 F.2d 1399, 1402-03 (10th Cir.1992); United States v. Madia, 955 F.2d 538, 539-40 (8th Cir.1992); Holland v. District Court, 831 F.2d 940, 942-43 (10th Cir. 1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1271, 99 L.Ed.2d 482 (1988); United States ex rel Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir.1982), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 1427, 75 L.Ed.2d 787 (1983); United States v. Richardson, 512 F.2d 105, 106 (3rd Cir.1975); Clements v. United States, 266 F.2d 397, 399 (9th Cir.), cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934 (1959); Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). When the prior and shorter statute of limitations has not expired, a change that merely extends the period is seen as procedural and thus does not implicate ex post facto concerns. The Supreme Court has said that “no ex post facto violation occurs if the change effected is merely procedural, and does ‘not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.’” Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 965 n. 12, 67 L.Ed.2d 17 (1981), quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). Under Alabama law, however, the statute of limitations in a criminal prosecution is a substantive, not a procedural, right. Stoner v. Alabama, 418 So.2d 171, 178 (Ala.Crim.App.), cert. denied, 418 So.2d 184 (Ala.1982), and cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983); Alabama v. Whirley, 530 So.2d 861, 865 (Ala. Crim.App.1987), rev’d on other grounds, 530 So.2d 865 (Ala.1988); Kirby v. Alabama, 500 So.2d 79, 80 (Ala.Crim.App.1986); Hall v. Alabama, 497 So.2d 1145, 1148 (Ala.Crim. App.1986). Thus, once the original statute of limitations has expired, the defendant acquires a vested right to rely on the protective force of the state law that grants him a permanent reprieve from prosecution. “To hold otherwise might be to create a situation which is clearly unconstitutional. This could allow the Legislature [or Judiciary] to enlarge the statute of limitations until the criminal in question was tried and sentenced; clearly an application which is ex post facto.” Stoner, 418 So.2d at 179 quoting Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974); see also Alabama v. Whirley, 530 So.2d at 865 (“Where a statute extends the period of limitation, the extension applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period. Such a statute, however, cannot operate to revive offenses that were barred at the time of its enactment, since that would make the statute ex post facto.” [citation omitted]); Tyson v. Johns-Manville Sales Corp., 399 So.2d 263, 268 (Ala.1981) (The legislature “has the power to retroactively alter, extend, or curtail an existing limitations period. However, this power ‘can only be exercised so as to apply ... where the bar was not complete before the enactment of the statute’ quoting Floyd v. Wilson, 171 Ala. 139, 141, 54 So. 528 (1911)). In Falter v. United States, Judge Learned Hand, speaking for the Second Circuit, astutely articulated the rationale for such a rule: Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it. 23 F.2d 420, 425-26 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Therefore, a retrospective judicial determination that effectively changes the statute of limitation and revives a previously barred criminal prosecution is in the nature of an ex post facto law and thus violates the defendant’s right to substantive due process. The question remains: by what standard does the court determine that a judicial decision, applied retrospectively, has violated the Due Process Clause of the Fourteenth Amendment? The United States Supreme Court first articulated the applicable standard in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). “If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.” Bouie, 378 U.S. at 354, 84 S.Ct. at 1703 (citation omitted). To make this foreseeability determination, the court evaluated (1) the state court’s prior interpretation of the statute, and (2) the plain language of the statute itself. See id. at 355-56, 84 S.Ct. at 1703-04. Whether the decision of the Alabama Supreme Court was an “unexpected and indefensible” holding that had the effect of expanding the applicable period of limitations is analyzed by reference to prior Alabama law on the subject and the terms of the statute itself. Bouie, 378 U.S. at 354, 84 S.Ct. at 1703. Thus, the court will look to decisions of the Alabama courts which have applied the “direct personal financial gain” language to conduct which was claimed to have violated the Ethics Act. In Allen v. Alabama, 380 So.2d 313 (Ala. Crim.App.1979), cert. denied, 380 So.2d 341 (Ala.), and cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980), Alabama State Treasurer Melba Till Allen was prosecuted and convicted of violating section 32-25-6, using her office to obtain “direct personal financial gain.” In Allen, the Alabama Court of Criminal Appeals found the evidence sufficient to establish that Allen held an unspecified interest in Leisure and Development Properties, Inc. (Leisure, Inc.), a corporation organized by Allen and others for the purpose of consolidating certain loans by obtaining letters of credit from various banks. Allen, 380 So.2d at 331. In addition, the evidence established that Allen had an unspecified interest in several other corporations, including SAND, Inc., which were attempting to purchase and develop property to support a theme park in Alabama. Id. Allen and a co-organizer of Leisure, Inc. solicited a $100,000.00 letter of credit by signing a personal promissory note and promising to deposit State funds at the issuing bank. Id. The court concluded that this solicitation was on behalf of SAND, Inc. After this solicitation was unsuccessful, Allen and the same co-organizer solicited a $50,-000.00 letter of credit from the American Bank of Geneva, Alabama. Id. at 331-32. Allen co-signed a promissory note in the same amount on behalf of Leisure, Inc., issued a written personal guarantee to pay any letter of credit issued to Leisure, Inc., and deposited $725,000.00 of State funds into American Bank of Geneva. Id. at 332. The letter of credit was issued but was rescinded within a few days. Id. No evidence was presented that Allen ever drew on the credit prior to the rescission or otherwise received any direct financial gain which was personal to her. Ms. Allen argued that the evidence was insufficient to establish that she had used her official position or office to obtain direct personal gain as proscribed by the Ethics Act. Id. at 330. The Court, after commenting on the evidence that suggested Allen had some interest in the various corporations, stated: [Biased on the recited facts, it is our judgment that a jury could see through the corporate machinations and draw the inference that Mrs. Allen’s association was for the sole purpose of promoting her corporate endeavors, all of which would ultimately redound to a personal gain on her part. Id. at 332 (emphasis in original). With respect to the question of when Ms. Allen “obtain[ed] direct personal financial gain” within the meaning of the Ethics Act, two reasonable interpretations of Allen are possible. First, the court may have concluded that Ms. Allen’s mere solicitations were sufficient, whether successful or otherwise. This interpretation is clearly supported by the court’s conclusion that the jury could have found that Ms. Allen’s actions “would ultimately redound to a personal gain.” Id. (emphasis in original). Second, the court may have concluded that Allen, by virtue of her association with Leisure, Inc., obtained “direct personal financial gain” when the bank issued a letter of credit to Leisure, Inc. If so, the Ethics Act was violated, i.e., Allen obtained “direct personal financial gain,” at the moment she constructively received the credit extension. There was no evidence that either Allen or any corporation with which she was associated drew on the available credit and none that Ms. Allen actually used any of the funds represented by the letter of credit for any expense personal to her.” Clearly, the court treated constructive receipt of the credit as a “direct personal financial gain.” In Chandler v. Alabama, 615 So.2d 100 (Ala.Crim.App.1992), cert, denied, 615 So.2d 111 (Ala.1993) the mayor of the City of Vernon, Aabama, was convicted of violating the Ethics Law by using his office to negotiate and sell real property which he individually owned. The appellant argued that the State had failed to prove the element of “direct personal financial gain” as required by the Ethics Act. Chandler, 615 So.2d at 106. The court stated: [I]t is clear from the policy behind this statute, that the term “gain” is not intended to be a precise or comparative term, because it is the appearance of impropriety that this statute seeks to avoid. “A primary objective of the Code of Ethics is that governmental officials avoid recurring situations in which there is a temptation to place personal gain, economic or otherwise, above the discharge of their fiduciary duty to the public. There is nothing new or startling about this con