The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
In 2003, following a bench trial, a Will County, Illinois judge found Jennifer Del Prete guilty of first degree murder. The judge later sentenced Del Prete to a twenty year prison term.
Del Prete's conviction was affirmed on direct appeal, and her petition for post-conviction relief was denied. She has now petitioned this Court for a writ of habeas corpus. She argues that insufficient evidence existed to support her conviction and that she received ineffective assistance of counsel.
Del Prete concedes that she did not assert part of her ineffective assistance claim in state court and that she therefore procedurally defaulted the claim. For the reasons stated below, the Court orders an evidentiary hearing on Del Prete's claim that the Court should excuse her procedural default.
In affirming Del Prete's conviction on direct appeal, the Illinois Appellate Court summarized the evidence as follows:
On December 27, 2002, three-month-old I.Z. (the victim) became non-responsive while in defendant's care at a daycare center. Defendant called 911 and performed C.P.R. on the victim. When the ambulance arrived, the victim was not breathing and had no pulse. Rescue personnel continued to administer CPR and were able to restore the victim's heart beat. Upon arrival at the hospital, the victim was unconscious. A medical examination revealed that there was no bruising or other signs of external injury to the victim's body. A cat [sic] scan, however, showed that there was acute and chronic bleeding in the victim's brain. Further scans showed that there were bilateral subdural hematomas in the victim's brain and retinal hemorrhages in the victim's eyes. Despite treatment, the victim never recovered and died almost a year later.
Defendant was charged with first degree murder. The indictment alleged that defendant shook the victim about the body, knowing that such acts created a strong probability of death or great bodily harm to the victim, and thereby caused the death of the victim.
At trial, both sides called an expert opinion witness to testify regarding the cause of the victim's injuries.*fn1 In addition to providing an opinion, each side's expert testified as to their qualifications, their experience with these types of injuries, the information they considered in forming an opinion, and the reasons why they reached the conclusions that they had reached. The State's expert opined that the injuries were the result of abusive head trauma (also known as Shaken Baby Syndrome), a form of child abuse where a child suffers brain injuries as a result of acceleration / deceleration forces, and that the victim's condition on December 27th was the immediate result of an injury that had been inflicted upon the victim just prior thereto. The State's expert opined further that the amount of force necessary to cause those type of injuries would be so severe that anyone shaking a child like that would know that the child would suffer severe injury. Defendant's expert opined that the victim's injuries were not the result of Shaken Baby Syndrome and that the injuries had actually occurred 18 to 24 hours before the event at the daycare center.
The appellate court ruled that the evidence at trial was sufficient to prove Del Prete's guilt. The court stated:
In the present case, taking the evidence in the light most favorable to the prosecution, we must conclude that defendant was proven guilty beyond a reasonable doubt. There was sufficient evidence submitted to the fact finder to resolve conflicts in the evidence and to draw inferences from the circumstantial facts. The trial court had before it the conflicting opinions of expert witnesses. The opinion of the State's expert supported a finding of guilty. The opinion of defendant's expert supported a finding of not guilty. It was for the trial court, as trier of fact, to resolve those conflicts. See People v. Seaman, 203 Ill. App. 3d 871, 883, 561 N.E.2d 188, 196 (1990). The trial court, in its discretion, was free to accept the testimony of the State's expert and reject the testimony of defendant's expert. Seaman, 203 Ill. App. 3d at 883, 561 N.E.2d at 196. The evidence of defendant's knowledge was not improbable or unsatisfactory and was sufficient to support a finding of guilty. See Flowers, 306 Ill. App. 3d at 266, 714 N.E.2d at 582; Price, 225 Ill. App. 3d at 1035, 589 N.E.2d at 194.
In her post-conviction petition, Del Prete alleged that her trial counsel was ineffective and again asserted that the evidence was insufficient to convict her. Specifically, she alleged that trial counsel had failed to investigate, interview, and call available experts to challenge the prosecution's expert testimony even though there was medical research available at the time that would have undermined that testimony. Del Prete also alleged that her trial counsel because he failed to inform her that he had previously been suspended from the practice of law because of unethical behavior as a Will County prosecutor.
The trial court dismissed Del Prete's petition as frivolous and patently without merit, and the Illinois Appellate Court affirmed that decision on appeal. Del Prete relied on a Wisconsin case with a similar fact pattern and similar expert testimony, State v. Edmunds, 308 Wis. 2d 374, 746 N.W.2d 590 (2008), in which the Wisconsin Supreme Court had reversed a murder conviction on the basis of newly discovered evidence and medical research asserting that infants who were found to have died as a result of shaken baby syndrome may have died from vaccine damage. The appellate court concluded that because Del Prete's expert had already "testified about the possible causes of the victim's injuries, other than shaken baby syndrome, that were similar to the theories of the new experts in Edmunds," that case did not support Del Prete's ineffective assistance claim. People v. Del Prete, No. 3-08-0431, slip op. at 10 (Ill. App. July 20, 2009). The court rejected Del Prete's argument regarding vaccine damage because she had not provided any evidence to show that vaccines were a possible cause of I.Z.'s injury. Id. at 10-11. It also rejected her argument regarding her trial counsel's failure to inform her of the ...