The opinion of the court was delivered by: Hon. George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the court is Craig Zimmerlein's ("Zimmerlein" or "petitioner") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
In 1997, a jury in Kane County, Illinois convicted Zimmerlein of murdering his three- year-old stepson, Travis Follman ("Travis"). The trial judge sentenced Zimmerlein to a 40-year term of incarceration for Travis' murder. Zimmerlein is currently serving his sentence at the Dixon Correctional Center in Dixon, Illinois. In his petition, Zimmerlein seeks a writ of habeas corpus claiming his trial counsel was ineffective because, during the jury trial, his counsel failed to present available witnesses whose testimony would have raised reasonable doubt as to whether he was guilty of murder. Petitioner claims that if the jury had heard from the uncalled witnesses, it would have convicted him of the lesser crime of involuntary manslaughter and not murder. Zimmerlein also claims that his due process rights were violated when the Illinois Appellate Court applied the wrong standard of review on his direct appeal of the trial court's denial of his motion to suppress. Petitioner claims the Illinois Appellate Court applied a manifest weight of the evidence standard instead of the correct de novo standard of review.
Under 28 U.S.C. § 2254(e)(1), the Court presumes the state court's factual determinations are correct for the purpose of habeas review. The facts relevant to Zimmerlein's petition follow. Travis was born on February 20, 1993 and diagnosed with Down's Syndrome and a heart defect. Travis underwent a complicated heart surgery when he was six months-old and was developmentally delayed and smaller in size than other children his age. Travis died approximately one month after his third birthday, on March 23, 1996. At the time of his death, Travis had not yet learned to talk.
Zimmerlein began dating Travis' mother, Donnita, in August 1995, when Travis was approximately two and a half years-old. Donnita and Zimmerlein married in January 1996 and Zimmerlein assumed parenting responsibilities for Travis. On the evening of March 20, 1996, Donnita went shopping with her friend Tina at around 7 p.m. They left Travis and Tina's eighteen month-old daughter, Kristen, in Zimmerlein's care. According to what Zimmerlein told Mike Anderson, a detective sergeant in the Kane County Sheriff's department, while Travis and Kristen were in his care, Zimmerlein kicked Travis twice in the stomach because Travis went into a bedroom that he was not allowed to enter.
During the murder trial, Zimmerlein testified that while he was caring for Kristen and Travis on the evening of March 20, 1996, he heard the children making noise in an upstairs bedroom. At about 7:30 p.m. that evening, Zimmerlein yelled at the children to get out of the bedroom he shared with Donnita. The children complied and went downstairs. A half hour later, around 8:00 p.m., Zimmerlein heard the children upstairs again and felt frustrated and agitated.
He went upstairs and found Travis and Kristen in his bedroom where they were not allowed to be. Zimmerlein lost his temper and kicked Travis in the stomach. Travis fell to the floor and cried and Zimmerlein kicked him again in the stomach. Zimmerlein testified that he kicked Travis as a punishment, but did not think that the kicks were hard enough to hurt Travis. In March 1996, Zimmerlein was a fairly muscular person. He lifted weights about four times a week, rollerbladed and waterskied.
After the kicks, Zimmerlein testified that Travis was crying and Zimmerlein took Travis' hand and walked him over to the stairs. Travis sat down and started to scoot down the stairs, but then fell and tumbled to the bottom of the stairs. During the tumble, Travis cut his lip. Thereafter, Zimmerlein changed Travis' cloths, put him in bed and gave him a sipper cup. Later, Zimmerlein checked on Travis and became concerned because Travis' stomach was swelling and his hands were cold. Travis had also vomited in bed and some blood came out of his mouth.
Around 8:45 p.m. that evening, Zimmerlein paged Donnita. When Donnita answered the page and called Zimmerlein, he told her that she should come home and "see the damage." When Donnita saw Travis she began to cry and immediately took Travis to Delnor Hospital in St. Charles. The doctor on call at the hospital, Narha Lee, ordered a CT scan that indicated a rupture in Travis' abdomen. Exploratory surgery of Travis' abdominal cavity revealed a six to seven centimeter tear in his stomach. According to Dr. Lee, Travis' stomach was "just blown out" and there appeared to be Spaghettios, which Travis had eaten for dinner that evening, all over his abdomen. Travis also had a small tear on his spleen. According to Dr. Lee, Travis' injuries were caused by a "great deal of force" and that was consistent with being kicked twice in the stomach by an adult. The injury could not have been caused by falling down the stairs. The injury would have been very painful and Travis likely would have cried until he exhausted himself.
Travis was transferred to Children's Memorial Hospital ("Children's") on March 21, 1996 and arrived at approximately 1:15 a.m. At that time, Travis was critically ill, but borderline stable and had uncontrolled internal bleeding. Dr. Arensman at Children's performed another surgery on Travis because the bleeding would not stop. Travis had a stomach laceration, swollen bowel and bruised pancreas. Dr. Arensman repaired the stomach to stop the bleeding, but Travis did not improve because his lungs began to fill with fluid. Travis died on March 23, 1996.
Dr. Arensman opined that Travis was a victim of child abuse and that his stomach injury was caused by a "very forceful blow to the abdomen" and was not consistent with falling down the stairs. The blow must have been "tremendous" because the stomach has an extra muscle coat and does not perforate easily.
According to petitioner, the crucial question at his criminal trial was whether his actions of kicking Travis in the stomach on March 20, 1996 were acts of murder or involuntary manslaughter. The jury received instructions on both offenses. In his closing argument, Zimmerlein's defense attorney argued that petitioner's actions constituted involuntary manslaughter and not murder because Zimmerlein loved Travis. The attorney argued that because Zimmerlein loved ...