Del Prete v. Thompson (10 F. Supp. 3d 907, 2014)

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In 2005, an Illinois judge convicted Jennifer Del Prete of first degree murder and sentenced her to a prison term of twenty years. Del Prete has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

In her petition, Del Prete alleges that the evidence at trial was insufficient to sustain a conviction of first degree murder and that her trial counsel rendered unconstitutionally ineffective assistance. Her ineffective assistance claim has two distinct parts. Del Prete concedes that she procedurally defaulted one part of the claim, but she contends that the Court should excuse her default because new evidence demonstrates that she is actually innocent of the underlying charge. The Court previously ordered an evidentiary hearing regarding Del Prete’s claim of actual innocence. United States ex rel. Del Prete v. Hulett, No. 10 C 5070, 2012 WL 774992 (N.D.Ill. Mar. 6, 2012).

For the reasons stated below, the Court finds that Del Prete has established by a preponderance of the evidence that based on all of the relevant evidence, no reasonable jury would find her guilty beyond a reasonable doubt. This permits the Court to consider the merits of her defaulted ineffective assistance claim.

Background

On December 27, 2002, Del Prete, a mother of two children and a longtime daycare worker, was working alone at a daycare facility in Romeoville when three-month-old I.Z. became unresponsive while in her care. Del Prete called 911 and performed CPR on the infant. When the ambulance arrived at the daycare, the paramedics found that I.Z. was not breathing and did not have a pulse. The paramedics continued CPR and eventually restored her heartbeat. They took I.Z. to Provena St. Joseph Medical Center in Elgin, where she arrived unconscious. As discussed more fully below, a CT scan performed later that day documented abnormalities in I.Z.’s brain. Despite prolonged treatment at three different hospitals, I.Z. never fully recovered. She died a little over ten months later, on November 9, 2003. Del Prete was charged with first degree murder.

A. State court proceedings

1. Dei Prete’s trial

At Del Prete’s trial, I.Z.’s mother testified that she started taking I.Z. and her other son to the daycare center where Del Prete worked on December 6, 2002. She stated that I.Z. had been taking Amoxicillin, an antibiotic, since December 18 for an infection, and that December 27 (the day of I.Z.’s collapse) was the last day of the prescription. She also testified that I.Z. had been hospitalized in late October for a fever and was on an antibiotic at that time via an intravenous feed. She further testified that she had gas drops for I.Z. and told both Del Prete and Gleanne Kehr, the owner of the daycare, to give I.'Z. the drops if she “seemed like she was fussy.” Ex. Q at 260. She stated that she had never noticed any problems in feeding I.Z. and had only given her gas drops once. She also testified that neither she nor hér husband ever disciplined any of their children physically.

LZ.’s mother said she had dropped off I.Z. at the daycare around 7:15 a.m. on December 27. She called the center late that morning, and Del Prete told her that I.Z. had just had a bottle and was asleep and that everything was okay.

Gleanne Kehr, the owner of the daycare, testified that she hired Del Prete in early October 2002, based on her observations that Del Prete was an active parent with her own children and was creative with the children in the school that both Del Prete’s and Kehr’s daughter attended. Specifically, Kehr stated that Del Prete always seemed patient with her younger son, who at the time was “in the midst of his terrible two’s.... ” Ex. Q at 274. Kehr was out of town on December 27, leaving Del Prete alone at the daycare. She testified that she had no concerns about leaving her alone with the children.

a. The prosecution’s investigative witnesses

Don Casagrande, a Lockport Fire Department paramedic who responded to the 911 'call, testified based on his report that he and his partner received a call from the dispatcher at 1:38 p.m. advising them of the 911 call and that they arrived at the daycare approximately six minutes later. When they arrived, Del Prete was performing CPR on I.Z., who was lying on the floor near the couch. He did not see any signs of trauma to the baby. According to Casagrande, I.Z. was blue and had no pulse or heart rate, and he took I.Z. to the ambulance while continuing to perform CPR. His partner intubated I.Z. and administered epinephrine, which restored her heartbeat. They took I.Z. to Provena Hospital.

Officer Michael Michienzi testified that he was dispatched to or arrived at the daycare at approximately 2:17 p.m. to assist the Lockport Fire Department in response to Del Prete’s 911 call. Michienzi stated that .when he entered the home, he saw Del Prete crying and talking to Lock-port Fire Department personnel. There were five other children there whom Del Prete was also caring for. Michienzi interviewed Del Prete about LZ.’s collapse, and Del Prete told him I.Z. had had diarrhea that soaked through her diaper and into her clothes. She reported that she changed I.Z.’s diaper and clothes. After this, I.Z. appeared to be sleeping. Del Prete picked her up and “the baby made a snort sound,” and her head fell backwards. Ex. Q, partial Feb. 23, 2005 trial tr. at 28. Del Prete said she tried to give I.Z. a bottle, but she did not suck on the nipple or swallow the milk. Del Prete reported that she then called 911. According to Michienzi, Del Prete reported performing four sets of CPR before the paramedics arrived at the daycare. Del Prete also told him the baby had been on Amoxicillin for nine days for an infection. She said she had contacted I.Z.’s father after calling 911.

Officer Kelley Henson testified that she and Detective Scott McLaughlin also spoke to Del Prete on December 27 at the daycare about I.Z.’s collapse. There were a number of other children there, and those whom Henson saw appeared to be fíne. Del Prete said that she prepared a bottle for I.Z. between 1 and 1:30 p.m. When she took I.Z. out of her swing to feed her, Del Prete noticed that the baby had soiled her clothing through her diaper. She changed I.Z. on the couch and propped her up on the couch for a moment while she stepped five feet away to retrieve I.Z.’s diaper bag. (Henson saw the diaper bag in that spot.) She explained to Henson that she had to get a burp cloth for I.Z. because the baby spit up a lot or had a reflux problem.

Henson testified that Del Prete told her that I.Z. remained exactly where she had left her on the couch, but that when she picked the baby up, she seemed limp. Del Prete cradled I.Z. in her arm to feed her the bottle, telling Henson that I.Z. had taken a bottle while sleeping in the past. Henson stated that she “didn’t find that strange, because being a mother, sometimes babies drink when they’re sleeping.” Id. at 46. Del Prete told Henson that when the milk trickled out of I.Z.’s mouth, she wiped I.Z.’s mouth, picked her up underneath her armpits, and held her out, shaking her slightly and saying her name. Henson testified that Del Prete demonstrated for her the slight shaking motion, and she testified she did not see anything inappropriate about what Del Prete said she had done. Del Prete told Henson that she then realized something was wrong, and she checked I.Z.’s mouth for a foreign object and put her fingers on I.Z.’s chest to check her heartbeat. Del Prete reported that she felt I.Z.’s heart still beating, but she told Henson that she was panicked and so called 911. Del Prete said that she followed the 911 operator’s instructions regarding CPR, but she did not think it was working. Del Prete told Henson that she completed two rounds of about CPR before the paramedics arrived. Henson retrieved the soiled diaper from the garbage and put it into a plastic bag to preserve it.

Henson stated that when Del Prete told her about finding I.Z. unresponsive, she became more upset and started to cry. She told Henson that she had only left I.Z. alone in the swing once earlier in the day, when she went up the stairs to print a schedule sheet for the other children. Henson testified that Del Prete told her I.Z. was “pretty much normal all day,” id. at 50, although she described I.Z. as generally crabby. She also said that I.Z. tended not to be as active as the other infant in the daycare at the time. Id. at 50.

Romeoville police detective Scott McLaughlin also testified about the conversation that he heard Henson having with Del Prete at the daycare on December 27. He testified that Del Prete told the police that Isabella was on Amoxicillin but did not report that she had given I.Z. her medication prior to her collapse that day. She said that around 1 p.m., I.Z. was sleeping in her swing, and the other children at the daycare were eating lunch. After they finished, she prepared a bottle for Isabella and then changed her diaper because it was soiled. Isabella was “somewhat fussy” while Del Prete was preparing the bottle. Id. at 80. According to McLaughlin, Del Prete said that when or after she changed I.Z., the baby gave an irritated cry and shake, which she said I.Z. did from time to time, and I.Z.’s lip was quivering. McLaughlin stated that Del Prete reported that when she walked across the room to retrieve the diaper bag, I.Z. made a “congested ... snorting type of sound.” Id. at 81. She picked up I.Z., who seemed limp, which was not normal for her. She then attempted to feed I.Z. with the bottle, thinking I.Z. might be sleeping and recalling that I.Z. had previously sucked on a bottle while sleeping.

Romeoville detective Kenneth Kroll testified that he first interviewed Del Prete on December 29, when Del Prete voluntarily came to the police station to discuss the incident. Detective McLaughlin was also present. Kroll testified that he asked Del Prete how I.Z. acted at daycare. Del Prete described I.Z. as a “gassy baby,” Ex. Q at 292, and fussy eater who cried more than other babies. She also reported that I.Z. would sometimes clench her fists and shake while she was eating, and Del Prete speculated that this may be due to a problem with acid reflux. She indicated that I.Z.’s mother had provided the daycare center with “gas drops,” a medication to control this.

Kroll said that Del Prete told them that I.Z.’s mother brought her to the daycare around 7 a.m. that day. She gave I.Z. a bottle between 8 and 9 a.m. and noticed I.Z.’s fists were clenched during the feeding. Del Prete put I.Z. in her swing, where she slept from approximately 9:30 a.m. until Del Prete changed her diaper in the afternoon. Kroll initially testified that Del Prete told him she changed I.Z. at approximately 12:30 p.m., but he admitted on cross examination that she may have reported feeding the other children before she attended to I.Z. and thus changed I.Z. later than 12:30 p.m.

Kroll testified that Del Prete told him that she took I.Z. out of a swing and briefly placed I.Z. on the couch while she briefly went into the kitchen. According to Kroll, Del Prete said that when she came back, I.Z.’s eyes were half open and she was making a “snoring, labored breathing sound” and was limp. Id. at 295. At first she felt I.Z. had fallen asleep. She tried giving a bottle to I.Z., but she was not responsive, and the liquid dribbled out the side of her mouth. Kroll stated that Del Prete reported picking I.Z. up under her arms and gave her a “very slight shake” while speaking her name. Id. at 296. When that did not work, Del Prete told Kroll that she turned I.Z. over onto her stomach and gave her three to five pats on the back to dislodge anything that may have been choking her. After further questioning, Del Prete told Kroll that I.Z.’s head flopped more violently when Del Prete turned her onto her stomach than it had when Del Prete had briefly shaken her. She again tried to feed I.Z., who would sometimes such a bottle while asleep, but the contents of the bottle ran out of her mouth. Del Prete became panicked and then called 911.

Kroll testified that he took a short break at some point in the interview. When he returned, he employed a confrontational interviewing technique, telling Del Prete that he believed that she was involved in LZ.’s collapse. Kroll stated that Del Prete became upset and began to cry. She repeated that she couldn’t remember “exactly how things took place” because of the increasing panic she had experienced as I.Z. remained unresponsive. Kroll testified that Del Prete told him that she “could have shaken [I.Z.] a little harder than she thought.” Id. at 303. Kroll said that he brought up the concept of shaken baby syndrome and told Del Prete that her statements were not consistent with what the police had learned from doctors. Kroll stated that Del Prete said, “[E]ven if I was panicked, aren’t I responsible? Am I going to go to jail?” Id. at 339; see also id. at SOI. According to Kroll, however, Del Prete never indicated that she had tried to hurt I.Z. She maintained throughout the interview that she had not handled I.Z. roughly.

On cross examination, Kroll admitted that Del Prete told him that although she was panicked, she was not rough with I.Z. He stated that when Del Prete admitted she may have shaken I.Z. harder than she thought, she was referring to her attempts to arouse I.Z. after she had collapsed, and she did not say she had shaken I.Z. at any point before she lost consciousness. He testified that he did not consider any of Del Prete’s statements to the police to be inconsistent with one another. Finally, Kroll testified that he interviewed some of the children at the daycare, none of whom saw anything unusual in the way that Del Prete interacted with I.Z. Kroll could not recall whether he shared that information with Del Prete during her interview.

b. The prosecution’s medical evidence

Dr. Adrian Nica, an emergency room intensive care physician with training in pediatrics, testified that I.Z. was unconscious when she arrived at St. Joseph Hospital on December 27. After stabilizing I.Z., he transferred her to intensive care and put her on a ventilator to permit her to breathe. Nica testified that he ordered blood and urine cultures, a chest x-ray, a spinal tap to test for meningitis, and a CT scan of the brain. He put I.Z. on an antibiotic because she had previously been prescribed an antibiotic by her pediatrician.

Nica testified that I.Z. had a significantly elevated white blood cell count. Specifically, he estimated that I.Z. had a count of 38,000, which was well above the normal level of 20,000-22,000. Nica stated that this could be the result of an infection or stress, such as trauma. He stated that I.Z.’s blood sugar levels were also well above normal, which he testified could be the result of diabetes or significant stress of any type. Nica testified that I.Z.’s spinal tap was very bloody, which was abnormal. He stated that this could have been the result of damage to blood vessels in the process of conducting the test or some other cause, such as a bleed in the brain.

Nica stated that the neurologist at St. Joseph Hospital reported to him that I.Z.’s CT scan showed that she had an “apparent” fracture on the right temporal area of the skull, see id. at 366, and both acute (relatively newer) and chronic (relatively older) changes in the brain, which resulted from bleeds in different levels of I.Z.’s brain. Id. at 355. He stated that “[p]rob-ably the baby was having some bleeding episode[s] before.” Id. Nica testified that when confronted with these types of injuries, “if [s]he is not involved in a car accident or so, you have to assume that it was a child abuse or baby shaking.” Id. at 355-56. Nica testified that I.Z. needed neurological attention, which he was not equipped to give, so he directed her transfer to the University of Illinois Chicago (UIC) Hospital. He testified that before transferring I.Z., he noted that her pH level — the level of acid in her blood — was improving and becoming less acidic, but she did not regain consciousness or improve neurologically before the transfer. Nica also testified that he ordered an EEG, the result of which returned after I.Z. had already left St. Joseph Hospital. The results of the EEG showed a significant abnormality, which was “significant ... in this case for bleedings.” Id. at 361— 62.

On cross examination, Nica testified that he did not personally read the CT scan but instead relied on the radiologist’s interpretation of the imaging. He agreed that the report said only that there was an “apparent” fracture and that there was no other independent confirmation of an actual fracture. Id. at 366. Nica stated that he saw no external signs of injury anywhere on I.Z. Regarding the chronic collections of blood in I.Z.’s brain, Nica said that was a preexisting condition. When asked if there was “a time frame that would constitute chronic,” he initially said, “No, I don’t think so,” and then said it would be “probably days or week [sic] probably before the acute episode if you will.” Id. at 367. On redirect, Nica said, “[f]or how long they were there, one week, 10 days, I cannot [say]. It’s a speculation.” Id. at 372. He stated that he could not identify a specific time frame that the chronic collection had been there, only that it was more than one day earlier.

Dr. Howard Hast, a pediatric critical care physician, testified as both an expert in that field and as a treating physician. He admitted, that he was not an expert in child abuse cases. He treated I.Z. from December 30, 2002, shortly after she was transferred to UIC Hospital, through January 16, 2003. I.Z. was on a ventilator when Hast first examined her. He noted that her anterior fontanelle — the soft spot on the top of an infant’s head — was slightly full, which Hast opined was indicative of a mild increase in I.Z.’s intracranial pressure. Hast testified that I.Z. withdrew from most stimuli and moved her extremities and reacted to deep painful stimuli by partially opening her eyes. Hast put her on a ventilator to support her breathing and prescribed her an anticonvulsant.

Hast testified that he was present during I.Z.’s retinal examination on December 31. Hast stated that according to I.Z.’s medical records, the ophthalmologist who conducted the exam found a lot of blood within I.Z.’s retinas and vitreous, the clear gellike substance that fills the eyeball. The retina is a light-sensitive layer of tissue that lines the inner surface of the eye from the ora serrata near the lens of the eye around the back of the eye and up to the ora serrata on the other side of the eye.

Hast opined that he believed that I.Z. had suffered seizures. Specifically, he testified that someone at St. Joseph Hospital had observed “something ... that was thought to be a seizure” and that I.Z. had had some “focus observed movements that were thought to be seizures” while at UIC Medical Center. Id. at 437. Hast testified that he and pediatric neurologist at the hospital “always suspected that she had seizures” based on “a lot of abnormal movements” that they observed. Id. at 446. He stated that they were never able to document any of her seizures on an EEG, but they were never able to order a prolonged EEG before I.Z. was transferred to Children’s Memorial Hospital. Hast stated that the family did not report a family history of seizures or epilepsy. On cross examination, however, Hast testified that it is possible for an infant to have a seizure without it being recognizable to an adult. He also said that incontinence is a possible indicator of a seizure.

Hast testified that he ordered a number of x-rays and CT scans for I.Z. while she was at UIC Medical Center. None of the x-rays showed signs of a skull fracture or any other fracture. Hast stated that based on his review of the CT scans, he concluded that I.Z. had bifrontal subdural hematomas. Hast explained that a subdural hematoma is a collection of blood in the space immediately underneath the dura mater, a tough membrane that surrounds the brain and spinal cord and separates them from the skull. Hast testified that I.Z. had subdural hematomas on both sides of her brain near or in the frontal lobe. He stated that he performed multiple neurological examinations of I.Z. and ordered the blood work and chemistries that are done routinely for critically ill patients. According to Hast, he found “nó bleeding tendency” or metabolic disease to explain the subdural hematomas. Hast opined that the most likely cause of I.Z.’s subdural hematomas was shaking or “some other acceleration-deceleration injury” (e.g., being dropped or thrown). Id. at 448.

Hast testified that on January 10, 2003, I.Z. underwent surgery to drain her subdural hematomas because they were increasing in size. Hast stated that after her surgery, I.Z.’s neurological status improved, and she gradually became more alert. I.Z. had poor control over her throat, however, and Hast testified that she was unable to swallow effectively. Hast recommend a tracheostomy to prevent any secretions from I.Z.’s mouth from blocking her airway. He also ordered a feeding tube for I.Z.

Hast testified that I.Z. had suffered from an apparent life threatening event (ALTE), which describes an infant that stops breathing, experiences a change in muscle tone (becoming either stiff or floppy), and changes in skin color. In this situation, he said, it is common for a frightened caregiver to attempt to revive the infant through CPR. Hast said that he did not know the cause of the ALTE in I.Z.’s case. On cross examination, Hast admitted that in approximately forty percent of ALTE cases, doctors are unable to come up with a diagnosis to explain the ALTE. He stated that the report regarding I.Z.’s condition when paramedic arrived at the daycare center was consistent with an ALTE. He testified that he would not be able to determine medically whether a baby was shaken before or after an ALTE occurred. Finally, Hast stated that reflux can lead to an ALTE. He stated that he did not test I.Z. for reflux but that there was no report of a family history of reflux.

Dr. Jeff Harkey, a forensic pathologist, testified as an expert in the field of forensic pathology. He stated that he performed an autopsy on I.Z. at the DuPage County Coroner’s Office on November 10, 2003, the day after I.Z. died. Before conducting the autopsy, he reviewed medical records from UIC Hospital and a report from Dr. Emalee Flaherty that stated I.Z. had originally been injured in December 2002. He noted several devices to help sustain LZ.’s life, including a tracheostomy tube to help I.Z. breathe, an intravenous line, and a feeding tube to give her nutrition. Harkey testified that at the time of her death, LZ.’s head was 171/2 inches in circumference. He observed scars on her brain that were indicative of a surgery that I.Z. had received in January 2003 to relieve pressure on her brain from a subdural hematoma' — a collection of blood in the space immediately underneath the dural membrane that surrounds the brain. Harkey said that “the entire examination of the brain was less than optimal,” id. at 384, because the brain was very soft. He attributed this to encephalomalacia — localized softening of the brain — caused by a prior injury, as well as the fact that I.Z. had spent the twenty-four hours immediately before her death on a respirator, during which time the brain breaks down through a process known as autolysis.

Harkey testified that he observed LZ.’s brain to- be symmetrical and did not see any evidence of bleeding on the outside of the brain. Harkey stated that he believed that her brain weighed approximately 930 grams, which Harkey opined was less than average for a child of LZ.’s age. Harkey admitted that his opinion was not based on researching the average size of a child’s brain, but instead merely based on his “feeling that the skull circumference was less than average and the brain was less than average in weight.” Id. at 387. Harkey testified that he could not determine I.Z.’s level of neurologic function. After weighing I.Z.’s brain, Harkey placed it into formalin, a substance that preserves the brain tissue. Harkey stated that he did not conduct a microscopic examination of I.Z.’s brain after placing it in the formalin.

Harkey testified that he did not examine I.Z.’s eyes microscopically because there was no indication of a recurrence of trauma, and over time, the retinal hemorrhages that ophthalmologists found in I.Z.’s eyes in January 2003 likely would have healed by the time of her death. Harkey stated that he observed autolysis occurring in I.Z.’s other organs and that his microscopic observations were consistent with multiple system organ failure as a result of a lack of oxygen (hypoxia), a lack of blood flow (ischemia), or some combination of the two (hypoxia-ischemia).

Harkey concluded that the cause of I.Z.’s death was multiple system organ failure resulting from “anoxic-ischemic injuries” that were caused by abusive head trauma. Id. at 398. Harkey testified, however, that his conclusion that abusive head trauma caused the hypoxia-ischemia was based entirely upon I.Z.’s medical records for the preceding eleven months prior to her death (i.e., from her hospitalization in December 2002 through the time of her death). On cross examination, Harkey stated that his conclusion regarding abusive head trauma was based on the findings in Dr. Flaherty’s report. He also said he observed no signs of recent or old trauma.

Finally, Dr. Emalee Flaherty, a pediatrician at Children’s Memorial Hospital, testified as an expert in the field of pediatrics and child abuse. Flaherty testified that she read all of the EMS and paramedic reports, as well as the police reports. She reviewed all of I.Z.’s medical records from UIC Medical Center, discussed LZ.’s case with Dr. Hast, and looked at the imaging studies done for I.Z. She also interviewed I.Z.’s parents and examined I.Z. personally once she was transferred to Children’s Memorial Hospital on January 30, 2003.

Flaherty opined that based on her review, I.Z. had suffered abusive head trauma, or “shaken baby syndrome,” immediately prior to her collapse on December 27. Id. at 477. She testified that Del Prete was the only person who could have caused I.Z.’s injuries.

Flaherty described the theory behind abusive head trauma. Specifically, she testified that when an adult shakes an infant, the brain’s motion relative to the skull causes the infant’s bridging veins to stretch, rupture, and bleed, causing hemorrhage to leak into the subdural or sub-arachnoid space. Bridging veins are the veins that drain blood from the brain into the superior sagittal sinus, a large vein that runs within the dura directly between the two hemispheres of the brain from front to back.

Flaherty testified that because young infants have weak neck muscles and proportionally large heads, they have little resistance to being shaken and are therefore at a greater risk than older children. She stated that the forces that adults inflict on infants when adults shake them violently are referred to as acceleration-deceleration forces.

Flaherty stated that the acceleration-deceleration forces that cause an infant’s bridging veins to rupture similarly cause hemorrhages within the optic nerve — the fibers connecting the eye to the brain— and the retina. Flaherty testified that “when you see hemorrhages to the ora serrata as in [LZ.’s] case, those kinds of extensive hemorrhages are only caused by these acceleration/deceleration forces or seen in shaken baby syndrome.” Id. at 485-86; see also id. at 490. Flaherty testified that I.Z. also had vitreous hemorrhages in both eyes.

Flaherty testified that I.Z. had evidence of both subdural and subarachnoid hematomas. She opined that “extensive subdural hematomas like [I.Z.] had over extensive areas of the head, those are only caused by acceleration and deceleration forces.” Id. at 487. Flaherty did not identify the reports or images from which she concluded that I.Z. had extensive subdural hematomas. She opined, however, that the force required to produce such extensive hematomas would necessarily be so severe that the abuser “would know that [the] child would suffer severe injury.” Id.

Finally, Flaherty testified that I.Z. had sustained injuries to her axons — nerve fibers transmitting information between nerve cells that comprise the white matter in the brain. Flaherty testified that the axonal injury resulted in the localized softening of the brain known as eneephalomalacia. Flaherty opined that the encephalomalaeia in LZ.’s brain was severe and affected critical areas for I.Z.’s functioning.

Flaherty testified that performing CPR on an infant could not cause injuries like those present in I.Z. She agreed that I.Z. could have had seizures without a layperson realizing it but that neither a seizure nor a “simple fall,” id. at 492, could have caused LZ.’s injuries. Flaherty stated that I.Z.’s injuries could only have come from being physically abused and that her loss of consciousness “would be immediate” after the abuse occurred. Id. at 491. Specifically, Flaherty testified that because Del Prete reported that I.Z. awoke and was “smiling and crabby” at 1 p.m., id. at 490, I.Z. had not yet suffered severe brain injury at that point.

On cross examination, Flaherty stated that if CPR causes retinal hemorrhages, this is rare and would produce only a few hemorrhages near the back of the retina (on redirect, she stated that I.Z.’s retinal hemorrhages were not confined to that area). She said, however, that she was unaware of any study documenting retinal hemorrhages caused by CPR. Flaherty agreed that I.Z. had ho external signs of abuse but stated that external signs are “not part of the definition” of shaken baby syndrome, id. at 498, and she stated that external bruising is “pretty uncommon” in the case of a shaken baby, though she said the reasons for this are not clear. Id. at 504. Finally, Flaherty admitted that although she testified during direct examination that I.Z. had subarachnoid hemorrhages, her report made no mention of subarachnoid hemorrhage.

c. Del Prete’s defense evidence

After the prosecution rested, Del Prete called a number of witnesses to testify about her reputation as an honest, law-abiding, dependable, well-respected, and peaceful person. These witnesses included parents who had children in activities with Del Prete’s children and whose children Del Prete had babysat in daycare or otherwise; a pastor who hired her as a supervising nursery attendant for services and events at his church; and persons who had worked with Del Prete at the children’s room of the local public library.

Del Prete also re-called Gleanne Kehr, the daycare center operator. Kehr testified that she hired Del Prete because she was honest, trustworthy, caring, and good with children. She said that she had never observed Del Prete as anything other than “calm and patient” with children at the daycare. Id. at 586.

Kehr further stated that when I.Z. took a bottle, she “tended to tense up and to arch her back.” Id. at 562. Kehr testified that I.Z. seemed very uncomfortable during and after eating and had to be burped more frequently than most babies. Kehr testified that she had spoken with I.Z.’s mother about the possibility that I.Z. had excess gas, although she conceded that she did not know whether I.Z. was ever diagnosed with a problem relating to gassiness. Kehr also testified that in early December, she observed at the daycare center an incident during which I.Z.’s father physically disciplined her brother (also a daycare resident) when he was uncooperative in putting his shoes on, grabbing him by the foot and dragging him to where the shoes were kept.

Karli Hinton, who worked at the daycare center with Del Prete and Kehr, testified that I.Z. was colicky and cried frequently. She recalled being given “gas drops” for the colic to add to I.Z.’s bottle to help relieve her gas. Hinton described I.Z. as “phlegmy” and said that she frequently had a runny nose and a cough. Id. at 603. Steve Blake, whose son also attended the daycare in the fall of 2002, testified that I.Z. “didn’t seem well.” Id. at 616. He stated that I.Z. was frequently crying during the short periods of time that he spent at the daycare.

Christine Murphy, a pediatric intensive care nurse and the mother of three children who attended the daycare, testified that Del Prete called her on December 27 after I.Z. collapsed to ask her husband to pick up their children. She also testified that she knew I.Z.’s family and had seen both parents physically discipline I.Z.’s older brother, R.Z. Ms. Murphy stated that her family and I.Z.’s family had visited a local pumpkin patch together in October 2001, before I.Z. was born. The families were getting onto a small train but R.Z. hesitated and the other people in line took R.Z.’s seat. According to Ms. Murphy, R.Z.’s father got angry, began yelling at R.Z., and dragged him away from the area by his arm. Ms. Murphy testified that she had seen R.Z.’s father physically discipline him on at least ten prior occasions, although she could not specify dates. Ms. Murphy stated that R.Z.’s father would typically grab R.Z.’s arm or would grab the young boy and “toss him onto the couch.” Id. at 672.

Brennan Murphy, Christine Murphy’s husband, also testified that he saw R.Z.’s father discipline him physically when R.Z. was approximately four years old by grabbing him by the arm, pulling him close to his face, and yelling at him. Murphy also testified that he saw R.Z.’s father spank R.Z. at least four separate times. Murphy admitted, however, that he never saw either of the parents physically discipline I.Z.

Finally, Del Prete called Dr. Wayne Tucker, a physician and medical officer for the Department of Defense Military Entrance Processing Station, to testify. Trial counsel sought to qualify Tucker as an expert in the fields of pathology and pediatrics. The prosecution objected to his testimony as an expert witness, arguing that he was not a board-certified pediatrician and had not practiced in the field of pediatrics since 1991 or testified as an expert since 1994. The prosecution further argued that Tucker had only one publication in the field of pathology and had never published in the field of pediatrics. Finally, the prosecution argued that Tucker admitted that although he had “glanced through some shaken baby articles,” he had not attended any conferences or published in the field of shaken baby syndrome. Id. at 723.

Defense counsel argued in response that Tucker had over forty years of medical experience and had performed approximately 7,000 autopsies. Counsel argued that Tucker had previously been qualified as an expert in three shaken baby, syndrome cases and although he had not been involved in pediatric family practice since 1983, he had provided pediatric services for a long time before that. Finally, counsel argued that “[t]here is nothing that’s changed about the make-up of a child” since 1983. Id. at 726. The trial court overruled the prosecution’s objection and found that Tucker was qualified to testify as an expert in the fields of pathology and pediatrics.

Tucker testified that he reviewed all of I.Z.’s medical records and.poliee reports of her collapse. He opined that based on his review of the records, I.Z. sustained her injuries between eighteen and twenty-four hours before she collapsed. Specifically, he stated that I.Z.’s medical records did not support the theory that her injuries had been sustained just hours earlier because “there was a chronicity to the situation of the frontal hematomas, subdural.” Id. at 735-36. He explained that a subdural hematoma in a chronic phase “means it’s been there up to 10 days ... 7 to 10 days.” Id. at 740. In other words, I.Z. had chronic hematomas as well as acute hematomas. Tucker concluded that I.Z.’s injuries could not have been the result of shaken baby syndrome and that he held this opinion within a reasonable degree of medical and scientific certainty.

Tucker stated that he would have considered a seizure as one possible cause of I.Z.’s injuries. He testified .that it would be possible for I.Z. to suffer a seizure without twitching or displaying any other external signs of seizure. The fact that I.Z. was on medication for an infection was also significant because she may have had “an allergic toxicity to the drug.” Id. at 737. He explained that I.Z.’s records reflected that she had been prescribed 250 milligrams of Amoxicillin (an antibiotic), which is an adult dosage, and if I.Z. was allergic to the 'medication, the toxicity could have caused her to have a seizure. He further opined that I.Z.’s. gas drops, which I.Z. had been taking with her bottles to help her feed, could have aggravated a reflux problem, which can lead to an ALTE.

According to Tucker, the fact that I.Z. took a bottle on the morning of December 27 did not rule out the possibility that she sustained her injuries before taking the bottle, because an infant’s sucking reflex can override cerebral or physical damage the child may have already incurred. Regarding Dr. Flaherty’s testimony about I.Z.’s hematomas, Tucker testified that he had not seen any documentation of sub-arachnoid hemorrhages in I.Z.’s medical records. He also stated that a variety of benign conditions could cause a chronic subdural hemorrhage to rebleed in an infant, including coughing, sneezing, or gas reflux problems. Finally, Tucker testified that every victim of shaken baby syndrome he had seen had external bruises from the shaking, which I.Z.’s records showed she did not have.

Regarding I.Z.’s retinal hemorrhages, Tucker testified that several conditions can cause retinal hemorrhages in infants, and he stated that it was “not uncommon to have that in any infant under the age of six months.” Id. at 742. He stated that based upon his review of the medical records, he could not determine whether I.Z.’s retinal hemorrhages extended as far as the ora serrata, but that events like CPR and seizures may cause retinal hemorrhages that extend to the ora serrata.

On cross examination, Tucker testified that he relied upon the police reports in determining that I.Z. had been prescribed 250 milligrams of Amoxicillin. He said that I.Z.’s medical records did not indicate what dosage she was taking or what time she had last taken the antibiotic. He was, however, shown medical records that, based on the trial transcript, appear to reflect a lesser dosage on December 27. See id. at 758-59. Regarding his previous expert testimony regarding shaken baby syndrome, Tucker testified that the three other infants involved all had external bruising. At the time those children suffered their injuries (diming the 1980s), the medical technology available was not sophisticated enough to detect subdural hematomas or retinal hemorrhages. Tucker stated that he had seen retinal hemorrhages in children that resulted from sneezing, but that he had never treated those retinal hemorrhages, and he admitted that it had been several years since he had treated any children. Tucker also admitted that the I.Z.’s blood tests were normal, that no other tests found that I.Z. had a toxic level of antibiotics, and that I.Z. was never diagnosed with an organic or metabolic bleeding disorder at any point during her life.

Tucker agreed that when I.Z. arrived at the daycare center on the morning of December 27, she did not have any known structural defect of her brain or neurological system. He testified, however, that she was not evaluated neurologically because the doctors concluded that resuscitation was the priority. Tucker admitted that he could not state within a reasonable degree of scientific or medical certainty that a seizure caused I.Z.’s injuries.

On redirect examination, Tucker testified that I.Z.’s bilateral frontal subdural hematomas could have been the result of her falling and hitting the back of her head, as a “contrecoup” would occur after the brain initially hits the back of the head and then rebounds to the front of the skull. He testified that if I.Z. experienced a fall of this type before she arrived at the daycare on the morning of December 27, her symptoms may nevertheless not have appeared until the afternoon.

d. The verdict

On March 4, 2005, the trial court found Del Prete guilty of first degree murder. When it announced the verdict, the court did not explain the basis upon which it found Del Prete guilty. The court did, however, comment on its guilty finding at a later date, when it denied Del Prete’s motion for a judgment of acquittal notwithstanding the verdict. The court expressed some disbelief at many of Del Prete’s statements to the police following I.Z.’s collapse, including her statement that she put I.Z. on the couch after finding that I.Z. had had diarrhea that soaked through her clothes and her statement that she tried to feed I.Z. a bottle after finding the infant limp and unresponsive. The court stated that the prosecution presented evidence that showed beyond a reasonable doubt that I.Z.’s severe injuries were the direct result of Del Prete shaking the infant. The court also noted that the injuries documented were serious and that “[h]er injuries to her eyes, the testimony before me was that only resulted from severe shaken baby cases.” Id. at 978. The court did not give additional findings of fact. On November 30, 2005, following a four-day sentencing hearing, the court sentenced Del Prete to a prison term of twenty years.

2. Appeal and post-conviction proceedings

Del Prete appealed her conviction, arguing that there was insufficient evidence to find her guilty beyond a reasonable doubt. The Illinois Appellate Court denied her appeal and a subsequent petition for rehearing, and the Illinois Supreme Court denied her petition for leave to appeal. Del Prete filed a petition for post-conviction relief in March 2008, arguing ineffective assistance of trial counsel based on counsel’s failure to investigate or call expert witnesses to challenge the prosecution’s expert testimony and his failure to disclose that he had previously been suspended from the practice of law because of unethical behavior as a prosecutor in Will County. The Will County Circuit Court dismissed her petition upon initial review. The Illinois Appellate Court subsequently denied Del Prete’s appeal and petition for rehearing, and on November 25, 2009, the Illinois Supreme Court denied her petition for leave to appeal.

B. Del Prete’s habeas corpus petition

Del Prete timely filed a habeas corpus petition in this Court on August 12, 2010. In her petition, Del Prete asserts two claims. First, she contends that the evidence at trial was insufficient to sustain a conviction of first degree murder. Second, she argues that trial counsel was unconstitutionally ineffective for failing to challenge the admission of expert testimony on the theory of shaken baby syndrome and failing to present appropriate expert testimony to dispute the prosecution’s theory of shaken baby syndrome.

The parties agree that Del Prete procedurally defaulted the former part of the ineffective assistance of counsel claim by not raising it in state court. She contends, however, that the Court should excuse the default and consider the merits of her claim under the “fundamental miscarriage of justice” exception. Specifically, Del Prete contends that new evidence shows she is innocent of the crime for which she was convicted.

The Court concluded that Del Prete had presented a plausible claim of innocence and ordered an evidentiary hearing. See U.S. ex rel. Del Prete v. Hulett, No. 10 C 5070, 2012 WL 774992 (N.D.Ill. Mar. 6, 2012). The Court conducted the evidentia-ry hearing on December 17-21, 2012 and January 14-16, 2013, hearing testimony by numerous' expert witnesses presented by Del Prete and respondent. In April 2013, Del Prete requested the Court to reopen the evidentiary hearing, based upon her recent discovery of a memorandum written by Detective Kroll regarding Dr. Harkey and his autopsy of I.Z. The Court granted Del Prete’s motion and allowed the parties to present testimony regarding that issue on June 21, 2013. The Court then again took the matter under advisement.

C. Evidentiary hearing testimony

The witnesses at the nine-day evidentiary hearing before the Court were called somewhat out of order due to availability issues. In the following discussion, the Court has reorganized the sequence of the witnesses so that corresponding experts for each side are discussed one after the other. The Court summarizes their testimony as following, noting that it does not intend this to be a complete recitation of the testimony.

1. Dr. Patrick Barnes (neuropathologist testifying for petitioner)

Del Prete called Dr. Patrick Barnes to testify about the radiological findings in I.Z.’s case. Dr. Barnes currently serves as chief of pediatric neuroradiology and comedical director of the MRI and CT Center at the Lueile Packard Children’s Hospital. He is also a professor of radiology at Stanford University Medical Center. Dr. Barnes testified that he co-founded a northern California child abuse task force, referred to as the Suspect Child Abuse and Neglect (SCAN) team, a multidisciplinary team that reviews cases of suspected child abuse and neglect.

In addition to testifying at the evidentiary hearing, Barnes also submitted two reports. The first report, dated June 29, 2012, discussed his assessment of I.Z.’s imaging studies and offered a differential diagnosis — a list of possible causes for abnormal findings in a patient’s imaging studies — regarding what caused LZ.’s neurological problems. Barnes explained that radiologists offer differential diagnoses to pediatricians and other doctors as part of the normal course of their work. Barnes testified that although he later reviewed 1.Z.’s medical records and the reports from respondent’s experts, his initial interpretation of the imaging was done “totally blindly,” that is, without reference to any other expert’s report or I.Z.’s medical records. He stated that “this is what a radiologist is supposed to do is not be biased by what the doctors say, what even the medical records say. We’re supposed to let the imaging speak for itself....” Hrg. Tr. at 78.

Barnes submitted a supplemental report on December 13, 2012. This included a discussion of the opinions of the other radiologists that the parties consulted in preparation for the evidentiary hearing and the radiologist who interpreted I.Z.’s imaging studies at the time they were taken. Barnes also included various references to medical literature throughout his report, as well as additional conclusions that he reached “after re-reviewing the medical records, other expert reports, references and so forth.... ” Hrg. Tr. at 120.

Barnes made reference to literature on “evidence-based medicine,” explaining that it has become more accepted in the past decade that medical practice, in particular standards for diagnosis and treatment, must have a firm scientific basis. He stated that improvements in imaging techniques have contributed to advances in this regard. See Hrg. Tr. at 68-69.

Barnes testified that in the field of radiology, there are two predominant methods used to depict specific sections of a body’s interior. The first method, computed tomography (CT) scan, uses x-rays to generate images of the body’s interior. The other method, magnetic resonance imaging (MRI), uses magnetic fields and radio wages to produce images of the body’s interior. Barnes stated that because of the more precise technology, MRIs convey a good deal more information about the brain and are able to date the age of hemorrhages or clots more accurately than CT scans.

Doctors treating I.Z. used both of these types of imaging in the days following her collapse. I.Z. had a series of CT scans of her brain taken on the day of her collapse, December 27, 2002. She had another series of CT scans taken the next day, taken both before and after doctors injected a contrast agent (iodine) into a vein to show the flow of blood. I.Z. had several more CT scans throughout January 2003. I.Z.’s first MRI was taken on January 7, 2003, eleven days after she collapsed, and her second and final MRI was conducted on January 30. I.Z. also had several x-rays taken in the weeks following her collapse.

Barnes opined that an important finding from LZ.’s imaging studies was that they showed chronic collections of fluid that appeared between LZ.’s brain and her skull. He stated that these collections, which he referred to as chronic extracerebral collections, could be several weeks to months old or could even date back to I.Z.’s birth in September 2002. He testified that another important finding was more recent hemorrhage or thrombosis (clotting), found within the chronic collections. Third, Barnes noted that I.Z. had brain injury that was due to a lack of oxygen or blood flow to the brain, commonly known in the medical profession as hypoxia-ischemia. Barnes stated that a final important finding was the absence of any signs of direct traumatic injury to I.Z.’s head, skull, brain, or neck. On the latter point, Barnes stated in particular that Dr. Rorke-Adams’s opinion (in examining brain tissue taken ten months later after I.Z. died) that I.Z. had brain contusions was not supported by the imaging, done of her brain in December 2002— January 2003.

Barnes stated that I.Z.’s first CT scan, taken on December 27 approximately six hours after Del Prete called 911, depicted a dark band between I.Z.’s skull and the frontal lobe of her brain, which he said constituted old collections of fluid. He stated that those chronic collections were once an area of hemorrhage (bleeding), but that over time the body resolves the bleeding and converts the blood into cerebrospinal fluid. He testified that this collection was at least two to three weeks old but could have existed since I.Z.’s birth about three months earlier. Barnes explained that the CT scan could not age the collection precisely and that other records, such as records of I.Z.’s head circumference in the weeks following her birth, could help indicate the age of the chronic collections. Barnes also testified that there was not yet any evidence of parenchymal injury to the brain — injury to the substance of the brain itself.

Barnes testified that there were two areas on the same scan that indicated acute activity, which he dated as being anywhere between a few hours and ten days old. First, he pointed to a white area running from the very back of I.Z.’s head toward the front directly down the center. He opined that this line appeared to follow the cerebral falx, a membrane that separates the two hemispheres of the brain from front to back. He testified that he could not determine based upon the December 27 CT scan whether that line represented a hemorrhage in either the subdural or subarachnoid space or whether the blood was contained within the membrane of the falx itself or the nearby inferior sagittal sinus, a large vein that runs along the top of the falx.

Barnes also noted in the image a shorter white line in the right frontal area of I.Z.’s head, surrounded by the chronic collection. He opined that the CT imaging did not provide enough detail to determine whether the acute activity represented a hemorrhage or a thrombosis (blood clot). Barnes explained, however, that the fact that the white line in the frontal right area of the brain appeared to have a structure despite being surrounded by water suggested that it was not free flowing blood, or a hemorrhage. He opined, rather, that the blood appearing on the CT scan was in a membrane (either normal or abnormal) or following a vein. Barnes further opined that the appearance of the white line in the frontal right area was consistent with the course of a cortical vein, or a vein between the brain and the skull.

Barnes testified that the amount of bleeding in this CT scan was not consistent with ruptured bridging veins, “because these hemorrhages or clots are very small.” Hrg. Tr. at 46. He stated that bridging veins typically carry a large flow of blood and that if one or more of those veins had ruptured, he would expected to see a “large white hemorrhage” on the imaging. Hrg. Tr. at 48. Barnes stated that based on this image, he would have recommended that I.Z. be tested for coagulopathy, which he defined as including both disorders in which the patent bleeds too easily and those in which the patient’s blood has an undue tendency to clot.

I.Z.’s second CT scan occurred on December 28, after she was transferred to UIC. Doctors at UIC conducted a first set of scans and then injected a contrast agent into a vein and took a second set of scans to observe the blood flow. Barnes opined that the image depicting the lowest section of I.Z.’s brain showed a number of normal vessels that properly collected the contrast agent throughout the vein or artery. He admitted, however, that on the pre-contrast image, there were two white areas along the tentorium, the membrane that separates the cerebral hemispheres above from the cerebellum below. Barnes stated that these areas may or may not indicate a hemorrhage, but even if it so, they were confined by a structure and did not consist of free-flowing blood. He also reaffirmed that this area did not represent hemorrhage from a ruptured bridging vein, because its volume was too small and it was confined.

Barnes testified the post-contrast image revealed that there was no clot in the superior sagittal sinus but instead indicated that there was some acute hemorrhaging around the vein. Additionally, he stated that the falx membrane contained at least some veins that were not thrombosed. Barnes said that this indicated that hemorrhaging should thus continue to be included in the differential diagnoses as a possible cause of I.Z.’s abnormalities.

Turning to the right frontal area of I.Z.’s brain, Barnes testified that the post-contrast image further indicated that the abnormality there was a clot, not a hemorrhage. He opined that the white line appeared to be incompletely enhanced throughout, with a portion of the white line appearing brighter than the rest. According to Barnes, this uneven coloration is “highly suggestive” that there was a clot blocking the contrast’s flow throughout the vein. Hrg. Tr. at 69. He admitted, however, that this was not conclusive and that further testing would be required to confirm that it was a thrombosed vein. Barnes further testified that on the left frontal area of LZ.’s brain, a number of other cortical veins appeared normal in the post-contrast imaging.

Finally, Barnes testified that other precontrast images depicting higher planes of I.Z.’s head showed other areas of possible acute activity near the center of I.Z.’s frontal lobe and on either side of the falx membrane near the top of her head. He opined that the areas could indicate either a hemorrhage or a clot, and that the CT scan was insufficient to determine whether they were small hemorrhages or areas of venous thrombosis. The post-contrast image, however, showed incomplete enhancement, suggesting that it was another area of probable venous thrombosis (clotting).

Barnes concluded, based upon the imaging, that ruptured bridging veins could not have caused the abnormalities present in I.Z.’s brain on December 28. He testified that the amount of acute activity was not large enough to have resulted from ruptured bridging veins. Because bridging veins carry a large volume of blood at a high rate, he explained in detail, a rupture of one or more of these veins would result in much more extensive bleeding, over a larger area, than appeared on LZ.’s CT scans. Dr. Barnes further testified that post-contrast images depicting the top of I.Z.’s head depicted intact bridging veins with no large hemorrhages.

Instead, Barnes posited that cortical venous thrombosis (CVT) was a likely cause of LZ.’s brain abnormalities. He testified that when a vein becomes clotted, the clot expands the vein, causing it to partially break down and leak a small amount of hemorrhage outside of the vein into the subarachnoid or subdural spaces. According to Barnes, this could account for any small areas of hemorrhage that appear on I.Z.’s imaging studies. Barnes disagreed with Dr. Hedlund’s opinion that the scans showed ruptured and thrombosed bridging veins.

On January 4, 2003,1.Z. had another CT scan of her brain at UIC. Barnes opined that the January 4 CT scan demonstrated that the chronic collections between I.Z.’s brain and her skull were increasing. He noted a decrease in differentiation between the gray and white matter in the substance of I.Z.’s brain toward the back of her head caused by edema (swelling) of the brain. He opined that I.Z.’s edema was the result of hypoxia-ischemia and confirmed that she had a major brain injury.

Barnes testified that the white line that appeared on the CT image in the right frontal area of I.Z.’s brain was still present. He stated that the fact that there were no other white areas around it or in the chronic collection further suggested that the fine on imaging was a persistent cortical venous thrombosis. Barnes further stated that imaging of a higher plane of I.Z.’s head depicted another white line, which he posited could represent an additional area of cortical venous thrombosis.

I.Z.’s first MRI occurred on January 7, 2003, eleven days after her injury. Barnes testified that an MRI machine takes multiple images of the patient’s brain using a number of techniques. (As noted earlier, Barnes testified that an MRI image is a more detailed and precise image of the brain than the one produced by a CT scan.) In analyzing I.Z.’s MRI imaging study, Barnes noted that the T2 technique demonstrated that the chronic collections near the front of LZ.’s head were in fact water (cerebrospinal fluid), although he could not conclude whether the water was normal or abnormal based on the MRI imaging. He further opined that the chronic collection on the right side of I.Z.’s brain was older than the collection on the left, based on the whiter color of the right frontal collection. He also noted a small chronic band of water near the back of I.Z.’s head on the right in the image nearer the base of LZ.’s brain. Finally, Barnes identified another chronic collection that wrapped around the right side of I.Z.’s brain between her brain and her skull. According to Barnes, this collection was older than seven days at the time of the imaging on January 7 and was probably closer to two or three weeks old. Barnes testified that the light color of these collections further conflicted with a diagnosis of ruptured bridging veins. According to Barnes, if a bridging vein had ruptured, he would expect that area to be all black on the MRI image (indicating a more acute hemorrhage).

Regarding the abnormality on the right frontal area of I.Z.’s brain, Barnes opined that the T2* technique, which is most susceptible to clotted blood, confirmed that the abnormality was a microscopic clot in a cortical vein. Barnes explained that the microscopic iron that the T2* detects in the brain was not dispersed throughout the chronic fluid collection, as it would be if there were a hemorrhage in that area, but instead was confined within a smaller structure within the collection. Finally, Dr. Barnes testified that as the images moved further up the plane of I.Z.’s head, the black area further darkens and branches out, indicating that the affected area is a vein and its branches and that there is clotting withi