GREGORY A. PRESNELL, District Judge.
The Petitioner, Jules Letemps, was convicted of sexual battery and kidnapping on November 21, 1989. The conviction, which was primarily based on the victim's identification of Letemps as the man who attacked her, came despite his testimony
On January 8, 1990, Letemps was sentenced to life in prison. In the succeeding decades, Letemps — who is fluent only in Creole, and cannot read or write — has continued to maintain his innocence, filing numerous motions for post-conviction relief. In 2011, Letemps obtained new counsel, who brought in serology experts to review the case. The new counsel also discovered a cassette tape in the State Attorney's file, to which Letemps never had access. The cassette tape included a deposition of the technician who performed the semen stain analysis. Upon review of the deposition, one of the newly retained serology experts discovered that the technician apparently used the wrong standard in doing her calculations — meaning that the test result exonerating Letemps had been valid.
Relying on this new evidence of his innocence, Letemps filed another motion for post-conviction relief in state court. The trial court summarily denied this latest motion, and the denial was summarily affirmed by the Fifth District Court of Appeal. Letemps then turned to the United States Court of Appeals for the Eleventh Circuit, which granted him permission to file the instant petition (Doc. 1) for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondents filed a response (Doc. 14), and Letemps filed a reply (Doc. 19).
Letemps asserts that his trial counsel was ineffective in two areas: (1) failing to investigate the serological testing and discover that the technician used an incorrect standard for testing, resulting in an incorrect interpretation of the testing results; and (2) failing to properly cross-examine witnesses and to attack the victim's identification of him as the assailant.
For the following reasons, the Court concludes that Letemps is entitled to relief.
On November 21, 1989, Letemps was convicted of three counts of sexual battery and one count of kidnapping. (App. A at 240-43). The trial court sentenced Letemps to four terms of life in prison. Id. at 191. Letemps appealed, and the Fifth District Court of Appeal affirmed per curiam on January 23, 1991. (App. D). After the conclusion of his appeal, Letemps repeatedly sought seek post-conviction relief under both state and federal law.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, a state prisoner ordinarily has one year in which to file a federal petition for habeas corpus, starting from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). If the petition alleges newly discovered evidence, however, the filing deadline is one year from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." § 2244(d)(1)(D).
Letemps filed this petition on May 6, 2013. Although the limitation period set forth in § 2244(d)(1)(A) is subject to tolling and to some exceptions, it is undisputed that it ran before Letemps filed the instant petition. And though this petition is based in part on newly discovered evidence,
However, Letemps argues here that he is actually innocent. As described by the Supreme Court, the "miscarriage of justice" exception permits a prisoner who makes a credible showing of actual innocence to pursue his constitutional claims on the merits, notwithstanding a procedural bar to relief or the expiration of AEDPA's statute of limitations. McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013) (allowing § 2255 petition to proceed based on newly discovered evidence obtained almost six years before petition was filed). This exception "is grounded in the `equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." Id. at 1931 (citing Herrera v. Collins, 506 U.S. 390, 404-05, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). The exception applies to a "severely limited" category of cases: ones in which new evidence shows it is more likely than not that no reasonable juror would have convicted the petitioner. Id. at 1933 (citing Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).
"An actual-innocence claim must be supported `with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.'" Milton v. Sec'y, Dep't of Corr., 347 Fed.Appx. 528, 530-31 (11th Cir.2009) (quoting Schlup, 513 U.S. at 324, 115 S.Ct. 851). A "habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial." House, 547 U.S. at 538, 126 S.Ct. 2064. A court may also consider "how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." Id. at 537, 126 S.Ct. 2064 (quotation omitted).
Thus, to address Letemps's claim of actual innocence, a review of the testimony at trial is necessary.
The victim testified that at approximately 4:30 or 5:00 a.m. on May 29, 1989, she was waiting at a bus stop when a man walked toward her, grabbed her, and put a metal object or knife to her neck. (App. A at 19-26). The man instructed her to walk behind a tree and remove her clothes. Id. at 26-28. She was forced to perform fellatio on her attacker and then to submit to sexual intercourse. Id. at 30-32. The attacker then put his clothes on, forced the victim to her feet, walked her to another area, and attempted to penetrate her anus. Id. at 34-35. When the victim noticed that the perpetrator no longer had the metal object in his hands, she ran to a nearby home to ask for help. Id. at 35. The owner of the home let her in, gave her a robe to wear and called the police. Id. at 36.
The victim testified that her attacker was a black man with a scar over his left eye and a missing tooth. Id. The victim also stated the man wore a navy blue and white shirt, jeans, and sneakers. Id. at 37. After giving her statement to police, she went home and showered. Id. at 38-39. She also contacted her cousin, Jose Maldonado ("Maldonado"), who came to her home. Id. at 39. She and Maldonado drove back to the area where the attack had occurred, looking for the attacker. Id. at 39-40. Eventually, they encountered Letemps walking down the street, and she identified him as her attacker. Id. at 40. She and Maldonado contacted a police officer, who arrested Letemps. Id. at 41-42. She testified that, when she made a positive identification of him to the police, Letemps threatened to kill her.
The owner of the home that the victim ran to, Sherman Williams ("Williams"), testified that he heard someone yelling outside his door at about 5 a.m. Id. at 57. When he answered the door, the victim ran in, crying. Id. at 58. Because she was naked, he gave her the robe he was wearing, and then called the police. Id. at 58-59.
Officers Peter Linnenkamp and Juan C. Viamontes took the victim's statement at Williams's home. Id. at 62-63, 70. The officers observed that the victim was distressed, crying, and shaking. Id. at 63, 68-69. Officer Linnenkamp was unable to obtain much information from the victim, because she was very upset and spoke "very little English." Id. at 63. The victim gave him only a "very general description" of her attacker — that he was a "short black male." Id. at 64. Officer Linnenkamp called for assistance from Officer Viamontes, who, like the victim, spoke Spanish. Id. at 64.
Speaking in Spanish with Officer Viamontes, the victim identified her attacker as a short black male wearing a two-toned, multi-colored shirt, and blue jeans. Id. at 70. Officer Viamontes did not recall the victim describing her attacker as having any unusual facial characteristics but said that if she had mentioned them, he would have included them in his report. Id. at 69-70.
Maldonado, the victim's cousin, testified that the victim called him approximately two hours after the attack. Id. at 73. He testified that when he arrived at her home, she described her attacker as a short black male with a scar over his left eye who was wearing blue jeans, a blue shirt with white stripes on the sleeves, black tennis shoes, and a cigarette pack folded in his sleeve. Id. at 81. The victim and Maldonado drove back toward the scene of the crime and, after circling around for a while, the victim spotted a man (subsequently identified as Letemps, id. at 82) walking down the street, and she said he was the man who had attacked her. Id. at 78-79. Maldonado testified that the man's appearance and clothing matched the victim's earlier description. Id. at 82. Maldonado informed a police officer, who stopped Letemps. Id. at 79.
Nancy Rathman ("Rathman"), a forensic serologist, testified that she examined the robe worn by the victim after the attack and found a stain. Id. at 109-13. She was able to verify that the stain contained semen. Id. at 113-114. She intended to determine, if possible, the blood type of the donor of the semen. Id. However, a test to indicate the amount of semen present in the stain indicated that it "was at such a dilution that my blood grouping test would ... not show you anything." Id. at 114.
Letemps called two witnesses — his live-in girlfriend and a roommate — who testified that they saw him in the house the evening before the crime and at approximately 6:30 a.m. the next morning. Id. at 122-25; 129-30. His girlfriend testified that he was in bed with her the whole time, and that she would have known if he had gotten out of bed prior to 6:30 a.m. Id. at 129. Letemps testified that he was at home, asleep, when the crimes were committed, that his roommate woke him up at 6:30 a.m., and that he left his house to walk to work at 7:00 a.m. Id. at 133-36. Letemps admitted making the threat to kill the victim if he had to go to jail, but explained that he did so "because I was scared what she said I do, try to take my life away, tell me I rape her. That's make me say that, and I don't mean to say that." Id. at 136.
At a deposition conducted prior to the original trial, Rathman stated that she performed
To perform the absorption test, Rathman cut up some fabric from the area where the stain had been found, dropped it into a test tube, and added saline to extract the stain contents from the fabric. Id. at. 39a-40a. She then tested the resulting extract for the presence of type A, B, AB, and O blood group substances. Id. at 40a-43a. The extract tested positive for type O, only. Id. at 43a.
Rathman said that in testing any semen stain, she must assume that the stain is a mixture of both semen and vaginal fluid.
To determine whether the stain contained a sufficient concentration of semen for blood typing, Rathman performed a P30 test. (Pet's App. at 49a). P30 is a protein only found in seminal fluid. Id. Rathman explained that by determining the amount of P30 in a stain, it is possible to calculate the amount of semen present and, by extension, determine whether there is enough to be able to detect any blood group substances that might be present in the semen. Id. at 50a. According to Rathman, "you would need approximately a 1 in 200 dilution to be assured that you would be picking up the blood type of the semen donor in a stain." Id. She attributed this 1-in-200 cutoff figure to "the Serological Research Institute, [which originated] this technique". Id.
Rathman stated that the P30 level in the sample worked out to a semen dilution ratio of "approximately 1 in 322.". Id. Rathman stated that due to the dilution, Letemps could not be ruled out as a contributor of the semen, even though the absorption test had not detected his blood type. Id. at 53a.
In her deposition, Rathman did not explain how she performed the calculation to obtain the 1 in 322 dilution ratio. However, as described infra, her bench notes indicate that she reached this result by comparing the amount of P30 found in the extract from the stain to the amount of P30 that would be found in a so-called "neat" (or undiluted) semen stain. Id. at 13a. At her deposition, Rathman stated that "5,000 units of P30 would be what you would consider a ... a neat semen stain." Id. at 51a.
Letemps provides the June 2011 affidavit of forensic scientist Elaine M. Pagliaro ("Pagliaro"). Id. at 22a. Pagliaro notes that the victim had type O blood and was a secretor, id. at 25a, and that only the O blood group factor was found in the stain on the robe. Id. at 28a. After reviewing the records, Pagliaro opines that, assuming that blood group substances were at detectible levels in the semen stain on the robe, the following interpretations would be scientifically accurate: (1) Letemps is excluded as a source of the semen; (2) the semen donor was an O secretor or a non-secretor. Id. at 28a.
Pagliaro also attests that P30 levels can vary across a stain, independently of the concentration of blood group substances. Id. at 28a-29a. Because of this, even with a reduced level of P30, it cannot be stated as a certainty — as Rathman did at trial — that the absorption test results "would not show you anything." Id. at 28a. Pagliaro concludes that, "[s]o as not to be misleading to the trier of fact, it would be important to state that if [blood group substances] from the semen donor were at detectible levels in some portions of or all of the stain, Mr. Letemps would be excluded as a source of that semen." Id. at 29a.
Letemps also provides the affidavit of Gary C. Harmor ("Harmor"), the senior forensic serologist of the Serological Research Institute ("SERI"), where he has worked since 1979. (Pet.'s App. at 11a). Harmor first became involved in the instant case in 2011. Id. at 12a. Harmor attests that, after receiving and reviewing Rathman's written bench notes, Rathman's deposition transcript, and the trial transcripts, he determined that Rathman had performed the calculation for the P30 test incorrectly. Id. at 12a-13a.
According to her notes, Rathman determined that the extract she created had a P30 concentration of approximately 15.49 units. Id. at 13a. To determine how diluted the extract was, Rathman compared that 15.49-unit figure to the amount of P30 she believed were to be found in a so-called "neat" (or undiluted) semen stain: 5,000 units.
Harmor states that, for purposes of SERI's method, the proper figure for the neat semen stain is 3,000 units of P30, not 5000 units, and that this was the figure taught in SERI workshops on systematic semen analysis in the 1980s.
Harmor also noted that Rathman performed a microscopic analysis of the semen stain and failed to detect spermatozoa. Id. at 13a. Because of this, Harmor opines that the donor of the semen very likely had a low sperm count or was sterile. Id. at 15a. Harmor also noted that he was told Mr. Letemps has biological children, indicating that he has spermatozoa in his seminal fluid. Id.
Letemps contends that the new evidence establishes to a virtual certainty that Letemps is innocent. (Doc. 19 at 28). Respondents argue that this evidence does not conclusively exclude Letemps as a contributor of the semen, because approximately 3 percent of known neat samples have more than 3000 ug/ml of P30. (Doc. 14 at 24-25). Respondents do not further explain how this fact undermines Harmor's expert opinion that the absorption test establishes Letemps's innocence or, more importantly, produce a serology expert who has reached such a conclusion.
With this new evidence, Letemps has presented a credible claim of actual innocence. The unrebutted testimony of the robe's owner, Sherman Williams, that no one other than himself wore the robe before he gave it to the victim establishes that either he or the rapist must have been the donor of the semen that Rathman found on it. Harmor's expert testimony effectively rules out both Williams and Letemps as the donor, meaning that the rape was committed by someone other than Letemps.
While it is true that this blood type evidence does not directly refute the victim's identification of Letemps, the eyewitness testimony is not especially powerful, particularly in light of how vague the victim's description was before she spotted Letemps walking down the street. In addition, the Supreme Court has noted that "eyewitness misidentification is the single
Pursuant to AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the `contrary to' and `unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir.2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001):
Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id. Whether a state court's decision was an unreasonable application of law must be assessed in light of the record before the state court. Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law).
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Generally speaking, determination of a factual issue
Debruce v. Comm'r, Alabama Dep't of Corr., 758 F.3d 1263, 1266 (11th Cir.2014) cert. denied sub nom. Dunn v. DeBruce, ___ U.S. ___, 135 S.Ct. 2854, 192 L.Ed.2d 875 (2015).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. The convicted person must prove: (1) that counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) that the deficient performance prejudiced the defense. Id. at 687-88, 104 S.Ct. 2052. To establish prejudice, the convicted person "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90, 104 S.Ct. 2052. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. 2052; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir.1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994).
Letemps alleges trial counsel was ineffective for failing to investigate the testing standard used by Rathman. (Doc. 1-1 at
Letemps also alleges that counsel improperly questioned Williams regarding the semen stain and attempted to establish that Williams was the donor of the semen. Id. at 14. Letemps asserts that had counsel properly investigated, she would have realized that Williams could not have been the donor. Id. at 14. Finally, Letemps states that because no sperm was found in the semen, counsel should have argued that Letemps — who had three young children — clearly did not have a low or nonexistent sperm count and could not have been the donor. Id. at 15.
Letemps raised this claim in his Rule 3.850 motion. (App. EEE). The State argued that the claim was untimely, successive, and barred by the doctrine of laches. (App. FFF). The State also argued that Letemps was not entitled to relief on the merits of his claim. Id. The trial court denied the motion "for the reasons set forth in the State's response." (App. HHH). The appellate court per curiam affirmed. (App. JJJ).
Letemps also claims trial counsel was ineffective for failing to properly cross-examine witnesses and attack the victim's identification of Letemps as the assailant. Doc. 1-1 at 20. In support of this claim, Letemps maintains that counsel failed to specifically question the victim about a vehicle she saw before she was assaulted. Id. at 20-21. Next, Letemps asserts that counsel failed to cross-examine Officers Linnenkamp and Viamontes about the victim's description of her attacker. Id. at 22-24. Letemps also contends that counsel should have cross-examined Officer Ford regarding which direction he observed Letemps walking when he was arrested. Id. at 25-26. Finally, Letemps argues that counsel failed to cross-examine Maldonado about where he saw Letemps prior to his arrest. Id. at 26-27.
Letemps made these allegations in his Rule 3.850 motion. (App. EEE). The State argued the claim was untimely, successive, and barred by the doctrine of laches. (App. FFF). The State argued in the alternative that Letemps had not demonstrated deficient performance or prejudice pursuant to Strickland. Id. The Fifth District Court of Appeal affirmed per curiam. (App. JJJ). As to the failure to cross-examine regarding the vehicle
On the date in question, Letemps lived on Lake Mann Drive. (App. A. at 123, 128, 133). Letemps's home was south of the location where the crime was committed, and his place of employment was north of the location. (Doc. 1-1 at 25). Officer Ford, the arresting officer, testified at trial that when he first observed Letemps, he was walking southbound on Cottage Hill Road, close to Lake Mann Drive. (App. A at 85). In his police report, however, Officer Ford stated that he "followed Maldonado and [the victim] to the 300 blk of Cottage Hill Road where they pointed to a black male who was walking north bound on the west side of the street." (Pet's App. at 98a) (emphasis added).
Maldonado testified that he first observed Letemps "coming behind the apartment complex." (App. A at 77). It is unclear where the apartment complex was located. Letemps contends that Maldonado observed him leaving the apartment complex where he lived and walking north on Cottage Hill Road. (Doc. 1-1 at 26-27). Letemps states that this is consistent with his alibi that he was walking (northward) to work after waking up at 6:30 a.m. Id. at 27.
As to this issue Letemps has demonstrated deficient performance. Had counsel questioned Officer Ford and impeached him with the police report, the jury would have learned that Letemps was observed walking northbound on Cottage Hill Road. Instead, Officer Ford's unimpeached testimony allowed the jury to conclude that Letemps was walking home from the crime scene instead of making the reasonable determination that Letemps was walking to work.
As discussed above, Rathman used the incorrect standard when she tested the semen stain. Had defense counsel further investigated the testing procedures used by FDLE in 1989, she would have discovered Rathman's mistake regarding the conclusions that could be drawn from the absorption test. Furthermore, if counsel had learned of Rathman's use of the
In addition, Letemps has met his burden with regard to the second prong of Strickland. The jury was told that the results of the analysis of the semen stain were inconclusive. However, when properly analyzed, Rathman's absorption test provides powerful evidence that excludes Letemps as the perpetrator. Although the victim identified Letemps as her assailant, Letemps presented testimony that he was at home when the crimes were committed. When reviewing the new evidence in conjunction with the evidence that would have been presented at trial if counsel had performed reasonably, the Court is persuaded that there is a reasonable probability that the outcome would have been different.
Having determined that the assistance provided by Letemps's counsel fell below the constitutionally required threshold, the Court must decide whether the state court unreasonably applied Strickland in denying Letemps's most recent motion for post-conviction relief. The Court has little difficulty in doing so. Letemps's motion, which included the ineffective assistance claims that this Court has found to be meritorious, was denied "for the reasons set forth in the State's Response" and summarily affirmed by the Fifth District Court of Appeals. (Doc. 14 at 7).
The bulk of the response is comprised of arguments that Letemps's latest motion is untimely or procedurally defaulted. As to the merits, the arguments are primarily based on the 1988 Manual, and its citation to 5000 units as the assumed original concentration of P30 in the semen in a test stain. (App. FFF). According to Respondents, this shows that 5,000 units was the correct standard, which would mean that Rathman interpreted the P30 test properly (thereby undermining the actual innocence claim) and that Letemps's counsel was not deficient in failing to discover otherwise (thereby undermining the Strickland claim). But as noted above, there is no evidence in the record that Rathman relied on the 1988 Manual. More importantly, there is no evidence that 5,000 units was actually the proper standard in October and November of 1989 (when Rathman performed her tests) rather than the 3,000-unit standard that SERI had in place at the time, according to the affidavit or SERI's senior forensic serologist, Harmor.
The Respondents also argue that, even if the 3,000-unit standard should have been employed, it would not have entirely excluded Letemps as the donor of the semen, because 3 percent of known neat semen samples fall above this 3,000-unit threshold. There is no expert testimony supporting this argument. Even assuming arguendo that the argument is scientifically valid, and taking the argument at face value, a test result showing that there is at most a 3 percent chance that Letemps was the source of a semen stain that must have originated from the rapist is still very powerful evidence of Letemps's innocence.
Finally, the Respondents argued that the failure to impeach Officer Ford with the contents of his report (which documented Letemps walking north, toward the place he worked, when Officer Ford arrested him) was a reasonable strategy on the part of Letemps's counsel. According to Respondents, Officer Ford's report also documents Letemps first being sighted by the victim and Maldonado on Spaulding Avenue, a street two blocks south of the street on which he resided,
Simply stated, there is no evidence supporting the conclusions reached by the state court in regard to the failure to investigate the serological evidence or the failure to impeach Officer Ford. In light of the foregoing, the Court concludes that the state court's application of Strickland was not merely incorrect, but unreasonable. Accordingly, Letemps is entitled to relief.
In consideration of the foregoing, it is ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus filed by Jules Letemps (Doc. 1) is
The writ of habeas corpus will be conditionally
3. Letemps is
On March 13, 1991, Letemps filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (App. H). The trial court summarily denied the motion on April 5, 1991 (App. I). Letemps did not appeal. On April 4, 1995, Letemps filed a federal habeas corpus petition in this Court. See Case No. 6:95-cv-363-Orl-18. This Court denied the federal habeas petition on March 28, 1996. (App. L). The Eleventh Circuit Court of Appeals denied Letemps's application for a certificate of probable cause on August 2, 1996. (App. M).
On January 28, 1997, Letemps filed a second petition for writ of habeas corpus with the Fifth District Court of Appeal. (App. N). The appellate court denied the petition on February 21, 1997. (App. Q). Between October 28, 1997, and September 25, 2006, Letemps filed approximately six additional motions for post-conviction relief which were denied. (App. R — DDD).
More importantly, counsel for Letemps filed a Florida public records request in September 2011 seeking the procedures or policies used by FDLE — Rathman's employer — for P30 testing in 1988 and 1989. Id. at 58a. In response, FDLE did not provide the 1988 Manual. Instead, FDLE produced a copy of SERI's procedures for P30 testing, dated September 29, 1989. Id. at 59a-61a. Consistent with Harmon's statement, those testing procedures instruct the person performing the test to "assume[] that the original concentration of P30 in the semen in the test stain is 3000 ugs/ml" and to divide the "ug/ml value of each unknown into 3000 to give an estimate of semen dilution." Id. at 63a. Rathman conducted her tests in October and November, 1989. Id. at 71a-89a.
Finally, even assuming arguendo that Rathman relied on the 1988 Manual in choosing the 5,000-unit figure, this would do little to help Respondent's case, as they have not provided any expert testimony to counter Harmor's expert opinion that 3,000 units was the proper figure.
As to this point, Letemps cannot demonstrate prejudice. The issue of whether the victim saw a van instead of a truck was essentially irrelevant to the case. Additionally, Letemps seems to argue that if the victim did not see him in the van, then her testimony would be called into question. However, regardless of whether she saw Letemps in some vehicle prior to the crime, she did identify him as her attacker.
Officer Linnenkamp testified that the victim gave a general description of her attacker. (App. A at 64-65). However, Officer Linnenkamp also stated that the victim did not speak much English, and so he called Officer Viamontes, a Spanish-speaking officer, to take her statement. Id. at 64. Officer Viamontes testified that the victim identified her attacker as a short black male wearing a two-toned, multi-colored shirt, and jeans. Id. at 70. In his police report, Officer Viamontes stated that the victim described the assailant as a black male wearing a two-tone multi-colored shirt, blue jeans, and white sneakers. (Pet. App. at 95a). Officer Viamontes did not recall the victim describing her attacker as having any unusual facial characteristics, and the police report does not mention Letemps's scar and missing tooth. Id.; (App. A. at 69).
However, Maldonado testified that when he arrived at the victim's home, she described the assailant's scar, missing tooth, and cigarette pack. Id. at 81. Therefore, even if counsel had cross-examined Officer Viamontes or Maldonado on the matter, no prejudice resulted. Moreover, the Court notes that the officers described the victim as distressed, crying, and shaking, which could otherwise account for the inconsistencies in her description. Other than the description of the color of Letemps's shoes, the victim's statement matched the clothing Letemps was wearing when he was stopped.
