IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

NICHOLAS E. GLUCKSMANN, )

)

Petitioner, ) No. 20 C 2946

v. )

) Judge Manish S. Shah

MELINDA EDDY, Warden of the )

Taylorville Correctional Center, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

A judge convicted petitioner Nicholas Glucksmann of aggravated battery of a 

child and aggravated domestic battery and sentenced him to seven years’ 

imprisonment. Now a prisoner at the Taylorville Correctional Center, Glucksmann 

seeks habeas corpus relief under 28 U.S.C. § 2254. For the reasons discussed below, 

the petition is denied.

I. Background

A. Trial

The state alleged that Glucksmann intentionally caused head trauma to his 

three-month-old son, E.G., on April 16, 2011. See People v. Glucksmann, 2019 WL 

2295737, at *1 (Ill. App. Ct. 2019).1 Its theory was that Glucksmann, frustrated when

awakened by E.G.’s crying, violently shook him, causing “bleeding in [E.G.’s] brain, a 

1 The facts and procedural history of this case are taken from the state appellate court 

decision in petitioner’s direct appeal, People v. Glucksmann, 2019 IL App (2d) 170515-U, 2019 

WL 2295737 (Ill. App. Ct. 2019), and are supplemented by the state-court record where 

needed. See Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (“We take the facts 

from the Illinois Appellate Court’s opinions because they are presumptively correct on habeas 

review”) (citing 28 U.S.C. § 2254(e)(1)).

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bruise on his brain, a bruise on his face, swelling on his face, [and] blood in his eyes.”

(Dkt. 1-6, pg. 172.)2 Glucksmann stated to several witnesses that, upon E.G. waking 

up, he put E.G. on the bed while he went to find a baby bottle and tripped on the 

comforter, causing E.G. to fall several feet onto a hardwood floor. Glucksmann, 2019 

WL 2295737, at *3. The prosecution called several medical experts who testified that

E.G.’s injuries were inconsistent with a fall, but consistent with violent shaking or 

inflicted impact. Id. at *3-7. Glucksmann challenged the experts’ conclusions through 

cross-examination and through one expert witness of his own, who testified that

E.G.’s injuries could have been caused by a fall. Id. The trial court judge credited the 

state’s witnesses, discredited Glucksmann’s witness, and found him guilty of all three 

counts. Id. at *8.

Before trial, Glucksmann moved to bar the state from presenting evidence that 

E.G. suffered from shaken baby syndrome or abusive head trauma on the basis that

neither met the general-acceptance test under Frye v. United States, 293 F. 1013 

(D.C. 1923).3 (Dkt. 22-1, pgs. 81-84, 98-113); Glucksmann, 2019 WL 2295737, at *1.

The trial court held a “pre-Frye” evidentiary hearing to consider whether the 

anticipated expert testimony constituted scientific evidence, for which a Frye hearing 

2 Page numbers in citations to district court docket entries are taken from the CM/ECF 

header placed at the top of filings.

3 Under Frye, to admit “expert testimony deduced from a well-recognized scientific principle 

or discovery, the thing from which the deduction is made must be sufficiently established to 

have gained general acceptance in the particular field in which it belongs.” Frye, 293 F. at 

1014; see also People v. McKown, 226 Ill.2d 245, 254 (2007) (In Illinois, scientific evidence is 

admissible at trial only if it meets the standard expressed in Frye).

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would be warranted, or instead constituted opinion testimony based on the experts’

training and experience, to which Frye does not apply. (Dkt. 1-10, pgs. 42-143.)

At the pre-Frye hearing, Dr. Suzanne Dakil, a child abuse pediatrics expert, 

testified. (Dkt. 1-10, pgs. 46-133.) She stated that, to determine how a child was 

injured, she used a differential diagnosis approach, meaning she would “brainstorm”

different possibilities explaining an injury and then, based on her training and 

experience, sort them according to their likelihood. Id. at 77-81, 114-23 (quote on pg. 

77). A diagnosis of abusive head trauma4 would mean the injuries were not caused 

by accident, which she would label as accidental head trauma, but instead, were

inflicted on the child by someone. Id. at 115-16; Glucksmann, 2019 WL 2295737 at 

*2. The trial court judge questioned Dakil about whether a diagnosis of abusive head 

trauma, which includes the term “abusive,” indicated the intent of the accused. (Dkt. 

1-10, pgs. 114-27.) After acknowledging that “abusive” may not be the most accurate 

term, Dakil reiterated that the diagnosis means that the injury neither was caused 

by an accident, nor was self-inflicted. Id. at 124-33.

At the conclusion of the hearing, the trial court judge determined that a Frye

hearing was unnecessary because he expected Dakil’s testimony to be based on her 

training and experience, rather than on a novel scientific theory. (Dkt. 1-8, pgs. 57, 

169-73.) “I am not gonna allow any doctor to testify that this is a diagnosis of abusive 

head trauma. I will allow the phrase that this is consistent with abusive head 

4 Dr. Dakil explained that the term “abusive head trauma” replaced “shaken baby syndrome”

since the victim’s injuries could be caused not only from shaking, but also from impact or a 

combination of shaking and impact. (Dkt. 1-10, pg. 79-80.).

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trauma.” Id. at 172-73 (relying on People v. Cook, 10 N.E.3d 410, 415-16, 425-26 (Ill. 

App. Ct. 2014) (no Frye hearing on abusive head trauma or shaken baby syndrome 

was required where experts’ opinions on injury causation were based on their medical 

training and experience, not a test or methodology for diagnosing shaken baby 

syndrome; testimony that injuries were consistent with shaking was not subject to 

Frye).5

At the bench trial, Genevieve Grimes, E.G.’s mother, testified that at about 

8:30 p.m. on April 16, 2011, E.G. went to sleep in a bassinet in the master bedroom 

that Grimes shared with Glucksmann, E.G.’s father. Glucksmann, 2019 WL 2295737, 

at *5. E.G. was three months old. Id. Sometime after E.G. fell asleep, Grimes went 

downstairs. Id. Later, she heard E.G. cry very loudly and saw Glucksmann bringing 

E.G. downstairs, saying E.G. had fallen. Id. E.G. looked “purpleish.” Id. Grimes

testified that before E.G. went to sleep, Glucksmann “seemed tired and frustrated”

and “was angered easily by little things.” Id. at *3, 5. Glucksmann was alone with 

E.G. when the incident occurred. Id. at *4, 5.

Glucksmann’s account was presented through statements he made to police 

officers, a Department of Children and Family Services investigator, and a medical 

social worker. Id. at *3, 4. According to his statements, when E.G. awoke in the 

bassinet, Glucksmann put E.G. on the bed and then went to get a baby bottle. Id.

Glucksmann tripped on the comforter, causing E.G. to fall approximately two-and5 The trial court also stated that it would give the jury a limiting instruction to caution the 

jury from blindly accepting any expert’s opinion. (Dkt. 1-8, pg. 173.) Ultimately, the case 

proceeded by bench trial.

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one-half feet off the bed onto a hardwood floor face first. Id. A police witness who 

measured the height from the floor to the top of the bedspread testified the height 

was 22 to 23 inches. (Dkt. 1-4, pg. 137.) According to Glucksmann, E.G. was pale, his 

eyes were rolling back, and the left side of his face was swollen. Glucksmann thought 

E.G. had passed out. Glucksmann, 2019 WL 2295737, at *3, 4. Glucksmann said he 

shook E.G. “in an up-and-down motion.” Id. at *4. Grimes and Glucksmann took E.G. 

to Provena Mercy Hospital in Aurora, Illinois. Id. at *3, 5. 

The Provena emergency room physician testified that E.G. had a “raised and 

tense” bulge on the top of his head, indicating swelling and pressure around the brain; 

blood in the back of both eyeballs; dried blood in his nostrils; and bruising above and 

below the left eye. Id. A CT scan performed that night showed several areas of fresh 

and older bleeding around E.G.’s brain. Id. E.G. was airlifted to Lutheran General 

Hospital to be treated by specialists because the Provena physician “believed E.G.’s 

situation was life threatening.” Id. at *3, 5. The doctor said he had treated over one 

thousand children with a history of a fall and had never seen an infant come in with 

retinal hemorrhages and multiple intracranial hemorrhages in different healing 

states from a fall.6 Id. at *3; see also (Dkt. 1-4, pgs. 262-63.) A second CT scan was 

taken of E.G.’s head the following day at Lutheran Hospital. (Dkt. 1-6, pg. 124.)

Two radiologists, Drs. Bernard Schupbach and Bradley Strimling, testified

about the CT scans. Glucksmann, 2019 WL 2295737, at *4, 8. Dr. Schupbach made 

6 Petitioner’s counsel notes that “hemorrhage” is often used as a verb, while “hematoma” is a 

noun. (Dkt. 1, pg. 5 n.1.) Hemorrhage is not exclusively a verb, and can be used as a noun. 

See https://www.merriam-webster.com/dictionary/hemorrhage (visited Dec. 16, 2022). 

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the following findings: “[1] an acute epidural hematoma over the left frontal region; 

[2] an acute parietal subdural hematoma on the left side; [3] a chronic subdural 

hematoma over the left temporal region, with a superimposed acute hemorrhage; [4] 

some evidence of a contusion in the anterior right temporal lobe; and [5] an acute 

hemorrhage over the left tentorium at the back of the brain.” Glucksmann, 2019 WL 

2295737, *4. He explained that an acute hemorrhage is between one and seven days 

old, while a chronic hemorrhage is at least 21 to 30 days old. (Dkt. 1-4, pgs. 307-14, 

322-26.) Concerning the chronic hematoma with a superimposed acute bleed, he

explained that an old hemorrhage could rebleed as a new hemorrhage. Id. at 322-23.

“At the time he interpreted the CT scan, he did not have E.G.’s history of injury.”

Glucksmann, 2019 WL 2295737, *4. But “[t]he multiple areas of intracranial 

hemorrhage raised his concern of intentional trauma or nonaccidental head injury.”

Id.

Dr. Strimling reviewed the CT scans from April 16 and 17, 2011. (Dkt. 1-6, pg. 

124.) Strimling’s reading of the April 17th scan, similar to Schupbach’s reading of the 

April 16th scan, indicated E.G. had a “chronic [hemorrhage] on the left with 

superimposed acute blood and multicompartmental new blood on the right.” Id. at

164. “The new blood” on the right side, stated Strimling, “represents a contusion.” Id.

at 160. “His review raised concerns that E.G.’s trauma was nonaccidental. In 

particular, the new bleeding on the right side of the brain could not be explained by 

a re-bleed on the left side of the brain.” Glucksmann, 2019 WL 2295737, *8; see also

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(Dkt. 1-6, pg. 140.) Both radiologists denied E.G.’s bleeds were caused by thrombosis, 

a blood-clotting disorder. (Dkt. 1-6, pg. 159-60; Dkt. 1-4, pg. 321.)

The attending pediatric emergency physician at Lutheran supervised the 

examination of E.G. on April 17, 2011, including review of his medical records from 

the transferring hospital. Glucksmann, 2019 WL 2295737, *5. She testified that she 

had seen a lot of children that rolled off a bed but had not seen E.G.’s type of head 

trauma or head bleeds absent some underlying medical problem or a fall from an 

upper bunk bed. Id.; see also (Dkt. 1-5, pgs. 48-59.) 

E.G.’s pediatrician concurred with the other medical treaters. In her practice 

she had seen children who had fallen off beds and changing tables, but none of them 

presented with retinal hemorrhages or intracranial hemorrhages. Glucksmann, 2019 

WL 2295737, *5. She stated that E.G. had no retinal or intracranial hemorrhages 

when she first saw him, two weeks after he was born. Id. She added that she had no 

concern that E.G. had any genetic condition, metabolic abnormality, clotting disorder, 

autoimmune condition, or nutritional deficiency. Id. When she examined E.G. in 

March and May of 2011, before and after the incident, he was developmentally 

normal. Id.; see also (Dkt. 1-5, pgs. 7-43.)

Dr. Dakil, who testified at the pretrial hearing about abusive head trauma and 

shaken baby syndrome, also testified at trial. Based on her training and experience—

which included having treated at least one thousand children (Dkt. 1-5, pgs. 174-

85)—she ruled out both accident, such as a fall from a bed, and preexisting medical 

conditions as causes of E.G.’s injuries. She opined instead that E.G.’s injuries were 

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caused by violent shaking and impact.7 Glucksmann, 2019 WL 2295737, *6-7; see also

(Dkt. 1-5, pgs. 191-02, 223-34; Dkt. 1-10, pgs. 115-16.) She explained: “Children often 

have short falls and we don’t see this type of injury. Small impacts can lead to skull 

fractures, small subdural hemorrhages underneath a fracture, unilateral 

hemorrhage, maybe. We don’t see bilateral hemorrhage. We don’t see fleshy bruising 

on the face and bilateral retinal hemorrhages in children in short falls.” (Dkt. 1-5, 

pgs. 201-02); see also Glucksmann, 2019 WL 2295737, *6. Dakil acknowledged that a 

short fall could cause an old hemorrhage to rebleed, but explained that the only old 

hemorrhage was on the left side of E.G.’s brain, meaning that the new bleeds on the 

right side could not have been caused by minor trauma. (Dkt. 1-5, pgs. 214, 226-27.) 

Dakil acknowledged that E.G.’s birth involved complications—he was 

delivered by vacuum extraction (use of a suction cup on his head to pull him through 

the birth canal), and his mother had used Methadone during pregnancy—but Dakil 

ruled out those circumstances, as well as any genetic or nutritional disorders, 

abnormal blood conditions, or other diseases. Id. at 223-34. Nor could E.G.’s injuries, 

according to Dakil, have been caused by Glucksmann “gently” shaking E.G. to revive 

him, as Glucksmann had reported to doctors. Instead, “violent shaking” was required.

Id. at 191-92. She concluded that E.G.’s injuries were “consistent with abusive head 

trauma and child physical abuse.” Id. at 191.

7 There was evidence that about three weeks before the April 16, 2011 incident, Glucksmann

elbowed E.G. in the head while taking a nap next to E.G., who “whined” a bit, but did not cry. 

Glucksmann, 2019 WL 2295737, at *4. Dakil testified: “it’s doubtful that [the elbowing] would 

have caused any injury at all.” (Dkt. 1-5, pg. 203.)

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A pediatric specialist who examined E.G. on April 17, 2011, echoed Dakil’s 

opinion that E.G.’s brain hemorrhages could not be explained by a fall triggering a 

new bleed from an old bleed, but instead were consistent with violent shaking.

Glucksmann, 2019 WL 2295737, at *5-6; (Dkt. 1-5, pgs. 61-75.) He added that, based 

on his experience and his reading of medical literature, most retinal hemorrhages in 

babies were caused by violent shaking, thus causing increased “interval pressure and 

pressure on the vessels in the back of the optic nerve.” Glucksmann, 2019 WL 

2295737, at *5-6; (Dkt. 1-5, pg. 73, 75). Such injuries, he said raised a concern about 

abusive head trauma. Id. at *5; (Dkt. 1-5, pg. 67).

Two ophthalmologists testified at trial. A pediatric ophthalmologist who 

examined E.G. on April 17, 2011, testified that E.G. had hemorrhages in both retinas.

“In her opinion, E.G.’s retinal hemorrhages were unlikely to have been caused by a 

fall.” Glucksmann, 2019 WL 2295737, *6; see also (Dkt. 1-5, pg. 168) (at trial, she

described the hemorrhages as “fairly d[if]use,” and stated: “I would say it would be 

unlikely to have that extensive of hemorrhages from falling off a bed.”). A retina 

specialist examined E.G. on April 22, 2011. (Dkt. 1-5, pg. 140-41.) He also saw 

hemorrhages in both of E.G.’s retinas, and he believed the “hemorrhages were 

consistent with [shaken baby syndrome].” Glucksmann, 2019 WL 2295737, *6; see 

also (Dkt. 1-5, pgs. 143, 150.)

The defense called one witness, Dr. Shaku Teas, a pathologist who reviewed 

E.G.’s CT scans, as well as medical, police, and DCFS reports. Id. She also consulted 

with two radiologists, Drs. Julie Mack and Patrick Barnes. Id. at *7, 9. According to 

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Teas, a fall from a short distance could have caused E.G.’s hemorrhages and face 

injuries, and she disagreed that the CT scans showed a brain contusion. Id. at *7. She

also characterized E.G.’s injuries as “minor transient injuries.” (Dkt. 1-6, pg. 64.) Teas 

noted that E.G. had no neck injury, id. at 13, or fractures, and that his cervical spine 

assessment was normal. Glucksmann, 2019 WL 2295737, at *7. She also said that 

E.G. had chronic hemorrhages on both sides of his brain. (Dkt. 1-6, pgs. 9, 36.)

Teas testified that retinal hemorrhages are caused by increased intracranial 

pressure, but she had no opinion on why E.G.’s intracranial pressure increased; nor 

did she think retinal hemorrhages were meaningful for drawing conclusions about 

mechanisms of injury. Glucksmann, 2019 WL 2295737, at *7. Teas acknowledged the 

existence of theories that shaking can cause retinal hemorrhages, but she claimed 

such theories were not proven. Id.; see also (Dkt. 1-6, pgs. 16, 74-75, 81-82.)

She suggested that E.G.’s chronic brain hemorrhages could have been caused 

by E.G.’s delivery by vacuum extraction. (Dkt. 1-6, pgs. 6, 62-63.) She also testified

that vitamin deficiencies can cause bleeding (Dkt. 1-6, pg. 12), and opined that

thrombosis (a blood clotting disorder) could explain E.G.’s acute bleeding—although 

she had “no idea” if E.G. had such a disorder. (Dkt. 1-6, pgs. 12, 13, 36, 47, 81). 

The trial court judge, citing the testimony of the state’s experts (Dkt. 1-6, pg. 

235), found that “E.G. suffered three acute areas of subdural hematoma with one of 

these acute areas superimposed on a chronic area of subdural hematoma. These were 

three separate and distinct areas of acute subdural hematoma. I also find E.G. 

suffered from retinal hemorrhaging . . . I find E.G. suffered great bodily harm.” Id. at

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238. Glucksmann was the only person present when the injuries took place. Id. at 

240.

The trial judge further found, after considering all the experts’ testimony and

Glucksmann’s statements to doctors and investigators, including a lengthy recorded

statement, id. at 239-40, that: “The defendant’s version of E.G.’s fall off the bed was 

not consistent with the injuries. . . . I find the defendant did create a situation which 

subjected E.G. to injury, trauma to the head.” Id. at 235-43, 250-52 (quote from pg. 

241). The judge added: “I draw no conclusions from the experts’ opinions that the 

injuries were consistent with shaken baby syndrome or abusive head trauma,” but 

instead considered “the circumstantial evidence of all the injuries.” Id. at 236. The 

court did not accept expert testimony to the extent it suggested that “certain types of 

diagnoses automatically is proof of a certain type of mental state or knowledge” or 

“that certain types of injuries which are consistent with the diagnosis of shaken baby 

syndrome or abusive head trauma ... gives rise to a conclusion intent of the 

defendant.” Id. at 242-43. 

The judge also found that Glucksmann’s statements that he gently shook E.G. 

to revive him “not credible and an attempt to mislead or minimize and put an 

innocent explanation on the incident.” Id. at 250. Instead, the judge found that 

Glucksmann “did shake E.G. at the time of the incident” and “knowingly caused great 

bodily harm to E.G. and created a situation which subjected E.G. to head trauma.” 

Id. at 250. The “nature and extent of the injuries is indicative of trauma intentionally 

caused.” Id. at 250. The judge found Glucksmann guilty of all counts. Id. at 251-52.

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B. Post-Trial

With new counsel, Glucksmann moved for reconsideration of the guilty verdict,

or for a new trial, claiming: insufficiency of the evidence; improper testimony from 

the state’s witnesses that E.G. was abused; and ineffective assistance of trial counsel.

Glucksmann, 2019 WL 2295737, at *8. The trial court held an evidentiary hearing at 

which Drs. Teas and Mack (one of the radiologists with whom Teas consulted for trial) 

testified; the other radiologist with whom Teas consulted, Dr. Barnes, submitted a 

written report—the same report he had provided Teas before trial. Id. at *8-9. Teas’s 

testimony was consistent with her trial testimony. Id. at *9. Mack echoed Teas’s 

opinion that E.G.’s injuries could be explained by rebleeding of chronic (older) bleeds 

that occurred during birth; that rebleeding could have occurred with a minor trauma, 

such as a fall; and that E.G.’s short-lived injuries were inconsistent with shaking. Id.

Barnes’s report opined, consistent with Teas’s testimony, that E.G.’s brain 

hemorrhages represented thromboses and strokes, and that he saw nothing on the 

CT scans to indicate nonaccidental injury. Id.

The trial court judge denied Glucksmann’s motion, concluding again that the 

state’s evidence at trial was more credible than the evidence Glucksmann presented 

at the hearing and that the hearing evidence largely duplicated Teas’s trial 

testimony. Id. at *10.

C. Direct Appeal

On direct appeal, Glucksmann argued: (1) the trial evidence was insufficient 

to support his convictions because (a) E.G.’s bleeding had stopped by the time his 

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second CT scan was taken eight hours after the incident and he thus sustained no 

great bodily harm, and (b) several state expert witnesses relied on radiologist Dr. 

Schupbach’s flawed conclusions that E.G. had a brain contusion and a preexisting, 

chronic bleed only on the left side; (2) the trial court erred by not conducting a Frye

hearing; and (3) his trial attorney was ineffective (a) for failing to call a radiologist, 

such as Drs. Mack or Barnes, to testify at trial, and (b) for not calling expert witnesses 

to discredit the theories of abusive head trauma and shaken baby syndrome. (Dkt. 

22-5, pgs. 1-55.)

The Illinois appellate court affirmed, concluding that the evidence was 

sufficient to prove Glucksmann’s intentional acts caused great bodily harm to E.G., 

that no Frye hearing was necessary, and that Glucksmann could establish neither 

the deficient performance nor the prejudice prong of his ineffective assistance claims.

Glucksmann, 2019 WL 2295737, at *11-15. Glucksmann unsuccessfully sought a 

rehearing, (Dkt. 22-8; Dkt. 22-9, pg. 4), and his petition for leave to appeal to the 

Illinois Supreme Court was denied. (Dkt. 22-9); People v. Glucksmann, 135 N.E.3d 

555 (Ill. 2019). He then filed his federal habeas petition.8

II. Analysis

Glucksmann’s § 2254 petition argues: (1) the trial evidence was insufficient to 

support his convictions; (2) his due process right to a fair trial was violated because 

he was convicted based on the controversial and discredited theories of shaken baby 

8 This case was assigned to the undersigned judge in September 2022.

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syndrome and abusive head trauma; and (3) his trial attorney was ineffective. (Dkt. 

1, pgs. 23-42.)

A. Standard of Review and Procedural Default

With respect to claims adjudicated on the merits by a state court, federal 

habeas corpus relief is unavailable unless that adjudication: 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the State 

court proceeding.

28 U.S.C. § 2254(d).

An unreasonable application of federal law under § 2254(d)(1) means “more 

than incorrect; it must have been objectively unreasonable.” Felton v. Bartow, 926 

F.3d 451, 464 (7th Cir. 2019) (citing Williams v. Taylor, 529 U.S. 362, 409-11 (2000)).

It “means something . . . lying well outside the boundaries of permissible differences 

of opinion.” McGhee v. Dittmann, 794 F.3d 761, 769 (7th Cir. 2015) (citations omitted);

see also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“a state prisoner must show 

that the state court’s ruling . . . was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement”).

Under § 2254(d)(2), a state court decision involves an unreasonable 

determination of the facts if it “rests upon fact-finding that ignores the clear and 

convincing weight of the evidence.” Gage v. Richardson, 978 F.3d 522, 528 (7th Cir. 

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2020) (citation omitted). A federal court cannot “conduct its own independent inquiry 

and reweigh factors as a de novo matter,” Sanders v. Radtke, 48 F.4th 502, 510-11 

(7th Cir. 2022) (quoted case omitted), and a federal court “may not characterize . . .

state-court factual determinations as unreasonable ‘merely because [it] would have 

reached a different conclusion in the first instance’” Brumfield v. Cain, 576 U.S. 305, 

313-14 (2015) (citation omitted).

If § 2254(d)’s deferential standard appears “difficult to meet, that is because it 

was meant to be. [...] [H]abeas corpus is a ‘guard against extreme malfunctions in the 

state criminal justice systems,’ not a substitute for ordinary error correction through 

appeal.” Harrington, 562 U.S. at 102-03; see also Minnick v. Winkleski, 15 F.4th 460, 

468 (7th Cir. 2021). Glucksmann bears the burden of showing that the state court’s 

decision was unreasonable. Harrington, 562 U.S. at 99.

With respect to claims Glucksmann did not fully and fairly present to the state 

courts, such claims are procedurally defaulted. State prisoners must exhaust statecourt remedies before bringing their claims to federal court. See § 2254(b); O’Sullivan 

v. Boerckel, 526 U.S. 838, 844 (1999). If a state prisoner did not fully and fairly present 

his federal claim to the state courts, federal habeas review is available for these 

claims only if he establishes either: (1) cause for the default and actual prejudice; or 

(2) a resulting fundamental miscarriage of justice if his federal claim is not reviewed, 

e.g., that new, reliable evidence demonstrates he is actually innocent. See Blackmon 

v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016) (citations omitted).

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B. Sufficiency of the Evidence

Glucksmann makes two arguments that the evidence was insufficient to prove

his guilt. First, he argues the evidence showed that E.G. had a chronic (older) 

hemorrhage on both the left and the right sides of his brain, such that his acute 

(newer) hemorrhages on both sides could be explained as rebleeds caused by a fall.

(Dkt. 1, pgs. 24-28.) Second, he contends the state courts relied on the discredited 

theories of shaken baby syndrome and abusive head trauma to find that he 

intentionally caused E.G.’s injuries. Id. at 28-33.

The Illinois Appellate Court stated the correct legal standard for such a claim:

“‘the relevant question is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trial of fact could have found the essential 

elements of the crime beyond a reasonable doubt.’” Glucksmann, 2019 WL 2295737, 

*11 (emphasis in original) (quoting People v. Bishop, 843 N.E.2d 365, 375 (Ill. 2006) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Glucksmann does not challenge state-court findings with respect to several 

elements of his aggravated-battery-of-a-child conviction,9 such as Glucksmann’s and 

9 Glucksmann was convicted of three counts: aggravated battery of a child causing great 

bodily harm (count 1); aggravated battery of a child causing bodily harm (count 2), and 

aggravated domestic battery (count 3). Because “[c]ounts two and three merged into count 

one,” the state appellate court focused on the sufficiency of the evidence of count one.

Glucksmann, 2019 WL 2295737, at *10; see also (Dkt. 22-4, pg. 9-10) (in its judgment of 

conviction, the trial court also merged counts 2 and 3 into count 1); People v. Betance-Lopez, 

38 N.E.3d 36, 50 (Ill. App. Ct. 2015) (“The effect of a trial court merging one conviction into 

another conviction is vacatur of the merged conviction.”).

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E.G.’s ages at the time of the incident or whether E.G. suffered great bodily harm.10

Instead, Glucksmann argues the Illinois courts unreasonably determined that his 

intentional acts caused E.G.’s injuries based on: (1) misunderstandings of the

radiologists’ interpretations of E.G.’s CT scans, and (2) the discredited theories of 

shaken baby syndrome and abusive head trauma.

1. Chronic Bleed on the Right Side of E.G.’s Head

Glucksmann states the Illinois Appellate Court, Dr. Dakil, and the trial court

misinterpreted evidence from the radiologists, mainly Dr. Strimling. (Dkt. 1, pgs. 24-

25.) “The radiologists,” states Glucksmann, “unanimously agreed that E.G. had 

chronic or old bleeding on both the left and the right sides of his head.” Id. at 26

(emphasis in Glucksmann’s brief). Glucksmann contends that a correct reading of the 

radiologists’ testimony supports his position at trial—that E.G. had older bleeds 

before the April 16, 2011 incident and that an accidental fall from a bed onto a

10 Under Illinois law, the offense of aggravated battery of a child is committed when “[a]ny 

person of the age 18 years and upwards . . . intentionally or knowingly, and without legal 

justification and by any means, causes great bodily harm . . . to any child under the age of 13 

years.” 720 ILCS 5/12-4.3(a) (2008). Although Petitioner’s appellate brief and PLA on direct 

appeal challenged whether E.G. suffered “great bodily harm,” (Dkt. 22-5, pg. 47-48), his 

§ 2254 petition does not repeat this claim. His petition twice refers to E.G.’s injuries as 

“transient,” (Dkt. 1, pgs. 24, 28), but “underdeveloped, conclusory” allegations in a petition 

do not sufficiently assert a claim. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) 

(citing cases); see also Rule 2(c) of the Rules Governing § 2254 Cases. Furthermore, whether 

transient injuries—in this case acute bleeding in/around an infant’s brain and retinas—

qualify as “great bodily harm” under Illinois law is really an issue of state law not cognizable 

in federal habeas review. See Crockett v. Butler, 807 F.3d 160, 168 (7th Cir. 2015). 

Glucksmann’s characterization of E.G.’s injuries as minimal or temporary is just part of his 

factual argument that they were more consistent with a fall from a bed, rather than from 

violent shaking. (Dkt. 1, pgs. 24-33.)

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hardwood floor caused the old bleeds to rebleed, thus causing intracranial pressure, 

which resulted in retinal hemorrhaging. Id. at 24-25. According to Glucksmann:

The key question was whether there was chronic bleeding on the right 

side of E.G.’s brain. If there was, then all experts agree that the short 

fall from the bed could have caused the acute or new bleeding on the 

right side as well as on the left. The radiologists Strimling and Mack 

both affirmatively testified that there was old or chronic bleeding on 

both sides of E.G.’s brain. No radiologist testified that there was chronic 

bleeding only on the left. Thus, Dr. Dakil’s opinion, which the Illinois 

Court relied upon to uphold the conviction, was unsupported. And the 

Illinois Appellate Court upheld Glucksmann’s conviction based upon 

evidence that does not exist in the record.

(Dkt. 23, pg. 6.)

Because the state appellate court decided the merits of Glucksmann’s 

sufficiency-of-the-evidence claim, he must demonstrate that its decision “was 

contrary to, or involved an unreasonable application of, clearly established” federal 

law as determined by the Supreme Court, or “resulted in a decision that was based 

on an unreasonable determination of the facts in light of the evidence.” § 2254(d)(1)-

(2).

The Illinois Appellate Court stated the correct legal standard for reviewing a 

sufficiency-of-the-evidence claim and, contrary to Glucksmann’s contention, 

reasonably applied the standard. Strimling said “yes” in response to a question that 

asked if there was new and old blood on the left and right sides of E.G. brain. But he 

also said there was new blood on the right side, with some subdural blood, (Dkt. 1-6,

pg. 160), and described the left hemisphere as having new blood “superimposed upon 

old subdural blood.” (Dkt. 1-6, pg. 161.) A finder of fact could reasonably understand 

Strimling’s testimony to mean that the right side was different than the left, with a 

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contusion on the right side and acute high-density blood unexplained by thrombosis.

With the testimony of at least six other medical experts who opined that E.G.’s 

injuries were not caused by a fall, and other parts of Dakil’s testimony ruling out an 

accident based on evidence other than the CT scans, there was evidence from which 

the trial court could reasonably find an injury that was not caused by an accidental 

fall as described by Glucksmann in his statements. That leaves sufficient grounds to 

infer intentional infliction of injury.

Jackson’s sufficiency-of-the-evidence “deferential standard does not permit 

the type of fine-grained factual parsing” that Glucksmann suggests for Strimling’s 

testimony, particularly not with the added deference afforded the state appellate 

court’s decision under § 2254(d). Coleman v. Johnson, 566 U.S. 650, 655 (2012); see 

also Cavazos v. Smith, 565 U.S. 1, 7-8 (2011).

The state appellate court’s determination of the intentional and knowing 

element of Glucksmann’s offense was based on the following: 

Next, the evidence was also sufficient to prove defendant’s mental state. 

The State’s ophthalmologist witnesses [...] were both accepted as 

experts and both personally examined E.G. [One ophthalmologist] never 

testified to abusive head trauma or shaken baby syndrome, only that in 

her opinion, a short fall was unlikely to cause retinal hemorrhages. [The 

other] testified that, based on his examination, E.G.’s retinal 

hemorrhages were ‘consistent with’ shaken baby syndrome. He also 

testified that retinoschisis and retinal folds were rarely caused by 

trauma. Teas agreed that increased intracranial pressure could cause 

retinal hemorrhages, but she disagreed that retinal hemorrhages were 

diagnostic of abuse. Contrary to [the second ophthalmologist’s] 

testimony, she believed retinoschisis and retinal folds would have been 

more diagnostic of abuse. The [trial] court resolved this conflict in the 

evidence in the State’s favor, finding [the State’s witness] more credible 

than [the defense’s].

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Glucksmann, 2019 WL 2295737, *12. This description of the evidence has support in 

the record. See (Dkt. 1-5, pg. 168); see also id. at 143 (retina specialist’s opinion based 

on his examination of E.G.’s retinas (and not CT scans, which is the focus of

Glucksmann’s § 2254 argument above)).

The state appellate court further stated:

Beyond the testimony from the ophthalmologists, the court heard 

additional circumstantial evidence of defendant’s intent. Dakil testified 

that E.G.’s bruise was unlikely to have been caused by a fall but more 

likely to have been caused by a sharp impact force.

Glucksmann, 2019 WL 2295737, *12. This too is supported by the record. See (Dkt. 1-

5, pg. 192-93, 202-03).

Continuing, the state appellate court noted that other doctors, “both 

pediatricians, testified that they had treated many children who fell off beds, and 

absent some underlying issue, those children did not present with intracranial 

bleeding or retinal hemorrhages.” Glucksmann, 2019 WL 2295737, *12; see also (Dkt. 

1-5, pgs. 50-59); (Dkt. 1-5, pg. 23). 

After its discussion of the testimony from several of the state’s witnesses, the 

Illinois Appellate Court concluded:

Accordingly, there was sufficient evidence for a rational trier of fact to 

convict defendant. The trial court weighed the State’s medical testimony 

against Teas’s testimony, and it found the State witnesses more 

credible. We are mindful that we do not retry a defendant on appeal 

([People v.] Kant, 2016 IL App (2d) 140340, ¶ 18 [(Ill. App. Ct. 2016)], 

and under these facts, we cannot say that the trial court's findings were 

unreasonable.

Glucksmann, 2019 WL 2295737, *12. The state appellate court clearly understood 

the sufficiency-of-the-evidence standard and applied it reasonably. As that court 

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observed, with support in the record, there was evidence—apart from Glucksmann’s 

analysis of Strimling’s testimony about E.G.’s CT scans—that E.G.’s injuries were 

inconsistent with a fall. The possibility that E.G.’s right-side bleed was caused by 

minor trauma does not make unreasonable the determination that the other evidence 

recounted by both the state trial and appellate courts (the retinal hemorrhages and 

the multiple pediatricians and ophthalmologists who personally examined E.G. and 

opined that his injuries were nonaccidental based on their training and experience) 

directly supported the conviction. 

Strimling testified that his initial impression after viewing the April 16, 2011 

scan “was concern[ ] at that time for nonaccidental trauma given the spectrum of 

abnormal findings on [E.G.’s] CT brain. This was further confirmed on a subsequent 

study on the 17th.” (Dkt. 1-6, pg. 147.) Dr. Schupbach, the other radiologist who 

testified at trial, similarly stated that, after viewing the April 16, 2011 CT scan, he 

was concerned that E.G. had sustained an “intentional trauma or nonaccidental head 

injury.” (Dkt. 1-4, pg. 312.) Neither radiologist who testified at trial supported

Glucksmann’s theory that E.G.’s injuries were caused by an accidental fall from a 

bed. So even if some part of Strimling’s testimony supported Glucksmann’s old-bleed

theory, other parts emphasized Strimling’s bottom-line opinion that E.G.’s injury was 

nonaccidental. A fact finder could reasonably credit that portion of his testimony. 

Furthermore, “even if ‘[r]easonable minds reviewing the record might disagree’ about 

the finding in question, ‘on habeas review that does not suffice to supersede the trial 

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court’s . . . determination.’” Wood v. Allen, 558 U.S. 290, 301 (2010) (quoting Rice v. 

Collins, 546 U.S. 333, 341 (2006)).

For all the reasons stated above, Glucksmann cannot clear the high hurdle set 

by § 2254(d) and, thus, no federal habeas relief is available for this claim.

2. References to Shaken Baby Syndrome and Abusive Head Trauma

Glucksmann argues that evidence of the discredited theories of shaken baby 

syndrome and abusive head trauma improperly influenced the guilty verdict. (Dkt. 1, 

pgs. 28-33.)

Before trial, the judge addressed whether expert witnesses could testify that 

they diagnosed shaken baby syndrome or abusive head trauma. See Glucksmann, 

2019 WL 2295737, *1. After an evidentiary hearing to address if a Frye hearing was 

needed to determine if the diagnoses were “generally accepted” scientific principles 

in the medical field, the trial court ruled: “I am not gonna allow any doctor to testify 

that this is a diagnosis of abusive head trauma. I will allow the phrase that this is 

consistent with abusive head trauma.” (Dkt. 1- 172-73) (relying on People v. Cook, 10 

N.E.3d 410, 415-16, 425-26 (Ill. App. Ct. 2014). Accordingly, the judge barred any 

testimony that E.G. was diagnosed with shaken baby syndrome or abusive head 

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trauma but allowed testimony that E.G.’s injuries were “consistent with” them. (Dkt. 

1-8, pgs. 163-73.)11

At trial, no expert witness testified he or she diagnosed shaken baby syndrome 

or abusive head trauma or that E.G.’s injuries were necessarily the result of shaken 

baby syndrome or abusive head trauma. Rather, the state’s witnesses, based on their 

training and experience, opined that E.G.’s injuries were inconsistent with a fall, but 

were consistent with shaking and impact. Three witnesses described E.G.’s injuries 

as being “consistent” with abusive head trauma or shaken baby syndrome. (Dkt. 1-5, 

pgs. 68, 72-73, 143,191.) But the trial judge expressly rejected those references. (Dkt. 

1-6, pgs. 236, 242, 250-51.) “I draw no conclusions from the experts’ opinions that the 

injuries were consistent with shaken baby syndrome or abusive head trauma. . . . I 

do listen to all the experts on their opinions as to the injuries . . . [and] how these 

injuries could be caused.” Id. at 236. “I am not comfortable with relying on the 

11 The trial judge’s ruling reflected two concerns. One was the application of Frye to the 

proffered testimony. There, the court’s citation to and discussion of Cook, demonstrated its 

application of Illinois law to the admissibility of expert testimony under Frye. The second 

concern was about the implication that a diagnosis of shaken baby syndrome or abusive head 

trauma was direct evidence of Glucksmann’s intent. See Dkt. 1-8, pg. 171-173 (“I still feel 

that brings into play intent [...] but I think I can cure at least most of those problems with 

the limiting instruction.”). Separate from the Frye inquiry, Illinois law directs trial courts to 

exercise caution when admitting expert testimony about a criminal defendant’s mental state 

or the actual circumstances under which apparently nonaccidental injuries occurred. See 

People v. Willett, 37 N.E.3d 469, 487-489 (Ill. App. Ct. 2015). Allowing an expert to testify 

that injuries were consistent with nonaccidental injury simply tracks state-law evidentiary 

principles. See id. at 488 (trial court did not abuse its discretion by allowing experts to 

describe injuries as consistent with nonaccidental trauma). The trial judge’s statements 

about the scope of expert testimony were in line with how Illinois courts resolve both Frye

issues and the admissibility of evidence of intent.

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experts/doctors’ opinions that certain types of injuries . . . are consistent with the 

diagnosis of shaken baby syndrome or abusive head trauma.” Id. at 242.

The judge was, however, “comfortable with taking the conclusions and opinions 

of experts and doctors concerning the nature of the injuries and how they are caused 

and then coming to my own conclusions concerning the mental state of the 

defendant.” Id. at 243. When issuing his verdict, the trial court judge found that 

“defendant did shake E.G. at the time of the incident,” “[t]he defendant’s version is 

not consistent with the physical injuries observed, and . . . is not credible,” and the 

trial judge drew that “conclusion not from the diagnosis of the expert[s], but from the 

injuries caused, actually the totality of the circumstances of the evidence presented 

in this case.” Id. at 257-58.

Glucksmann’s contention that the trial court relied on shaken baby syndrome 

and abusive head trauma when making its findings is belied by the record. Instead, 

the Illinois courts relied on the expert witnesses’ opinions that E.G.’s injuries were 

inconsistent with a fall (as Glucksmann contended in his statements) and were more 

consistent with being shaken. (Dkt. 1-6, pg. 250); see also Glucksmann, 2019 WL 

2295737, *3-8. Glucksmann does not argue, nor can he, that physicians cannot 

distinguish accidental from inflicted injuries, or opine on the possible causes of 

injuries.

And the verdict was not based entirely on opinions about abusive head trauma. 

The trial judge relied on: Glucksmann’s statement that he shook E.G.; the court’s 

credibility assessment that Glucksmann’s version of shaking minimized his conduct;

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the evidence that Glucksmann was alone with E.G.; the corroborative impact of 

multiple experts opining that the injuries were nonaccidental; and its assessment of 

the weight of the prosecution’s expert testimony compared to the defense’s. (Dkt. 1-6, 

pg. 233-251.) None of these findings depended on any reliance on the theory of shaken 

baby syndrome.

Furthermore, even if the state courts relied on shaken baby syndrome or 

abusive head trauma to conclude that Glucksmann caused E.G.’s injuries, that would 

not warrant federal habeas relief under § 2254(d). Some authorities have questioned

the validity of shaken baby syndrome. (Dkt. 1, pgs. 28-33; Dkt. 1-3; Dkt. 23, pg. 11); 

see also Cavazos v. Smith, 565 U.S. 1, 13-14 (2011) (Ginsburg, J., dissenting). But the 

United States Supreme Court has never ruled that admission of testimony about 

these theories is unconstitutional or so unreliable to be a factual basis for habeas 

relief. The only decision on the subject from the Supreme Court reinstated a jury 

verdict in a child-homicide case that rested on shaken baby syndrome evidence.

Cavazos, 565 U.S. at 2-9. Thus, even if the Illinois courts had relied on the syndrome,

such reliance would not be “contrary to, or involve[] an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the United 

States.” § 2254(d)(1); see also Wright v. Van Patten, 552 U.S. 120, 126 (2008).

Glucksmann’s challenges to the sufficiency of the evidence warrant no federal 

habeas relief. 

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C. Due Process Right to a Fair Trial

Glucksmann also argues that “[a] conviction based upon flawed and discredited 

science violates Due Process.” (Dkt. 1, pg. 32.) Similar to his sufficiency-of-theevidence challenge, Glucksmann contends that “recent scientific tests have . . . shown 

that the whiplash forces required to cause bleeding around a child’s brain would also 

be expected to cause neck and spine injuries and/or broken ribs. Yet, E.G. sustained 

no injuries other than the internal hemorrhages.” Id. at 40. “A conviction based on 

flawed and discredited science,” repeats Glucksmann, “violates a defendant’s right to 

Due Process under the Fifth and Fourteenth Amendments . . . by denying him a 

fundamentally fair trial.” Id.

Glucksmann acknowledges he did not raise a due process challenge to the 

medical evidence in state court. See id. at 40-41 and n.17 (“He did not specifically 

raise a Due Process challenge to the State’s medical evidence.”); see also Glucksmann, 

2019 WL 2295737, *12-13 (the state appellate court addressed whether the trial court 

should have conducted a Frye hearing under Illinois law, but not whether the failure 

to do so violated due process).

The failure to present a federal claim in one full round of state-court review 

results in a procedural default. See § 2254(b); Boerckel, 526 U.S. at 844-45.

Glucksmann had to assert his claim “in concrete, practical terms, [so that] the state 

court [was] sufficiently alerted to the federal constitutional nature of the issue.” Ward 

v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010) (quoting Ellsworth v. Levenhagen, 248 

F.3d 634, 639 (7th Cir. 2001). Glucksmann did not do this. (Dkt. 22-5, pgs. 48-52; Dkt. 

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22-9, pgs. 11-19.) His failure to specifically present his due process claim with respect 

to the absence of a Frye hearing or to the references to shaken baby syndrome and 

abusive head trauma at trial resulted in a procedural default. See Ward, 613 F.3d at 

696; see also Mitchell v. Lashbrook, No. 12 CV 9603, 2018 WL 1586245, at *6 (N.D. 

Ill. Mar. 31, 2018) (the failure to argue a due process violation when challenging the 

absence of a Frye hearing in state court did not fairly present the due process claim, 

which was considered defaulted).

Glucksmann argues his default should be excused because he is actually 

innocent. (Dkt. 1, pg. 41); Coleman, 501 U.S. at 750; Hicks v. Hepp, 871 F.3d 513, 531 

(7th Cir. 2017). He “must establish that, in light of new evidence, ‘it is more likely 

than not that no reasonable juror would have found [Glucksmann] guilty beyond a 

reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 

513 U.S. 298, 327 (1995)). This standard usually requires “‘new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or 

critical physical evidence—that was not presented at trial.’” House, 547 U.S. at 537 

(quoting Schlup, 513 U.S. at 324); see also Hayes v. Battaglia, 403 F.3d 935, 938 (7th 

Cir. 2005) (“evidence . . . [sufficient] to meet the actual innocence bar . . . is 

‘documentary, biological (DNA) or other powerful evidence: perhaps some nonrelative who placed him out of the city, with credit card slips, photographs, and phone 

logs to back up the claim.’”)

Glucksmann presents no new evidence. Instead, he repeats his discussion of 

the trial evidence and relies on a 2019 law review article generally challenging the 

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diagnosis of shaken baby syndrome. (Dkt. 1, pg. 40-42; Dkt. 1-2.) This is not the type 

of showing sufficient to establish actual innocence. House, 547 U.S. at 537; Schlup, 

513 U.S. at 324; Hayes, 403 F.3d at 938. Discrediting shaken baby syndrome through 

more recent scientific studies would not have made it likely that no fact finder would 

convict. Such evidence would not change the admissible opinion evidence that E.G.’s 

injuries were nonaccidental, Glucksmann’s admission that he shook E.G., or the 

evidence that he was the sole cause of E.G.’s injuries.

Furthermore, even if Glucksmann could satisfy the actual-innocence exception, 

the Illinois courts did not rely on shaken baby syndrome or abusive head trauma to 

determine that E.G.’s injuries were intentionally inflicted. No doctor at trial testified 

that E.G.’s injuries were intentionally caused based on a diagnosis of shaken baby 

syndrome or abusive head trauma. Although three expert witnesses stated that E.G.’s 

injuries were consistent with shaken baby syndrome, (Dkt. 1-5, pgs. 68, 72-73, 143, 

191), the state trial court put those statements aside. (Dkt. 1-6, pg. 236); id. at 242; 

id. at 243. The references to shaken baby syndrome or abusive head trauma by some 

of the expert witnesses did not “so infect[] the ju[dge]’s deliberation that they denied 

[Glucksmann] a fundamentally fair trial.” United States v. Brown, 822 F.3d 966, 975 

(7th Cir. 2016) (explaining the standard for a violation of the due process right to a 

fair trial) (citing United States v. Avila, 557 F.3d 809, 822 (7th Cir. 2009) (“We must 

use care not to magnify the importance of errors that had little significance in the 

trial setting.”). The trial court credited the prosecution’s experts’ opinion only as far 

as they opined that the injuries were consistent with nonaccidental causes; the court 

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then weighed that against the evidence of accidental causes (Glucksmann’s various 

statements and Teas’s testimony), and arrived at a conclusion beyond a reasonable 

doubt. There was no due process error.

D. Ineffective Assistance of Counsel

Glucksmann claims his trial counsel was constitutionally ineffective in two 

ways: (1) failing to consult with a radiologist to better equip counsel to cross-examine 

Dr. Dakil about her conclusion that E.G.’s only chronic hemorrhage was on the left 

side of his brain; and (2) failing to interview and call expert witnesses to challenge 

the theories of shaken baby syndrome and abusive head trauma purportedly relied 

on by the prosecution. (Dkt. 1, pgs. 33-39.) Neither claim is availing.

Under Strickland v. Washington, 466 U.S. 668, 104 (1984), Glucksmann must 

show both (1) counsel’s performance “fell below an objective standard of 

reasonableness,” and (2) “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 

688, 694. Failure to prove either prong is fatal to the claim. Id. at 697; Winfield v. 

Dorethy, 956 F.3d 442, 452 (7th Cir. 2020). Glucksmann procedurally defaulted the 

first claim and cannot show that the state appellate court unreasonably applied 

Strickland in rejecting the second.

1. Failure to Consult with a Radiologist

Glucksmann argues that trial counsel should have consulted with a 

radiologist, such as Dr. Mack, to enable counsel to cross-examine Dakil more 

effectively about the location of E.G.’s old and new bleeding. (Dkt. 1, pgs. 33-36.)

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Glucksmann claims that consulting a radiologist would have helped counsel suggest 

E.G. had chronic hemorrhages on both sides of his brain, bolstering Glucksmann’s 

theory that E.G.’s new bleeding was rebleeding of chronic hemorrhages, consistent 

with a fall. (Dkt. 1, pgs. 33-36.)

On direct appeal, Glucksmann argued that trial counsel was ineffective for 

failing to call Drs. Mack or Barnes to testify in order to rebut the State’s evidence 

that E.G. suffered a brain contusion and to clarify that E.G.’s intracranial bleeding 

was not within the brain, but instead, only around it. (Dkt. 22-5, pgs. 51-53.); see also

Glucksmann, 2019 WL 2295737, at *14. Glucksmann’s § 2254 claim is different as it 

involves counsel’s failure to properly prepare her cross-examination of Dakil 

concerning the location of old and new hemorrhages. See Rittenhouse v. Battles, 263 

F.3d 689, 695 (7th Cir. 2001) (adequate presentation of a claim through one complete 

round of state-court review requires petitioner to “present both the operative facts 

and the legal principles that control each claim to the state judiciary”). Because

Glucksmann did not fairly present to the state court the operative facts of the claim 

he now raises, he procedurally defaulted it. Stevens v. McBride, 489 F.3d 883, 894 

(7th Cir. 2007) (raising a related, yet different, claim in state court did not fairly 

present the § 2254 claim). 

Glucksmann repeats his contention that any default should be excused because 

he is actually innocent. (Dkt. 23, pg. 12 n.2.) But as explained above, he does not make 

the requisite showing of actual innocence to excuse his default.

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But even if this court could review this claim, it fails on the merits. First,

Glucksmann points to no evidence, such as an affidavit, showing that trial counsel 

failed to consult a radiologist before trial or demonstrating how trial counsel would 

have cross-examined Dakil differently had counsel consulted radiologists. See Pole v. 

Randolph, 570 F.3d 922, 946 (7th Cir. 2009) (refusing to assume trial counsel failed 

to investigate potential defense witnesses where defendant failed to substantiate his 

claim with evidentiary support); see also Doxy v. United States, No. 08 CV 283, 2009 

WL 1748013, at *8 (N.D. Ind. June 18, 2009) (“Speculation does not suffice to make a 

showing of ineffective assistance,” and a litigant must provide “some explanation 

[about] the cross-examination that should have been conducted.”) (citations omitted).

Second, more vigorous cross-examination of Dakil, aided by counsel’s 

consultation with a radiologist such as Mack, would not have raised a “reasonable 

probability” that “the result of the proceeding would have been different.” Strickland, 

466 U.S. at 694. The trial court judge, after hearing Dr. Mack testify, still found “the 

defendant’s rendition of what happened to not be credible. I found it then and I find 

it today after having viewed all . . . the materials that were presented to the Court,”

which included Dr. Barnes’ report. (Dkt. 1-9, pg. 50.) Yet Glucksmann contends that, 

had his trial counsel consulted Mack or Barnes, neither of whom the trial court 

credited over the state’s experts, counsel’s cross-examination of the state’s witnesses 

would have been not simply more effective, but would have persuaded the trial judge 

to believe Glucksmann’s version of the events. But the judge still did not believe the 

defense radiology theories after hearing from the radiologists.

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2. Failure to Call Experts to Challenge Shaken Baby Syndrome

Glucksmann claims that trial counsel was ineffective for failing to present 

testimony from scientific experts to challenge the theories of shaken baby syndrome

and abusive head trauma, and that the Illinois Appellate Court’s rejection of this

claim was an unreasonable application of Strickland. (Dkt. 1, pgs. 36-39.) The state 

appellate court resolved this ineffectiveness claim as follows:

[T]rial counsel’s decision not to present evidence against theories of 

shaken baby syndrome and abusive head trauma was neither 

unreasonable nor prejudicial. Such evidence was unlikely to be helpful 

because, as we explained [earlier], the State did not rely on a theory of 

shaken baby syndrome or abusive head trauma. Rather, the State relied 

on its physicians’ opinions that E.G.’s injuries were not caused by a short 

fall from the bed, and their opinions were based on their training and 

experience. Defense counsel reasonably focused on offering alternative 

explanations for E.G.’s injuries and disputing the State’s conclusions, 

but the [trial] court found the State’s witnesses to be more credible.

Glucksmann, 2019 WL 2295737, at *15.

That analysis reasonably applied Strickland. First, trial counsel vigorously 

challenged the admissibility of shaken baby syndrome and abusive head trauma

evidence before trial and succeeded in persuading the trial court to bar testimony 

that E.G. was diagnosed with either. See Glucksmann, 2019 WL 2295737, *1-2.

Second, as explained above, the state did not rely on the theory of shaken baby 

syndrome to prove its case, and the trial judge, though he allowed testimony that 

E.G.’s injuries were “consistent with” shaken baby syndrome and abusive head 

trauma, ultimately gave no weight to that characterization. The basis of

Glucksmann’s conviction was the testimony that E.G.’s injuries were inflicted rather 

than accidental, that they were inconsistent with a fall and, instead, indicated violent 

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shaking and impact. Shaken baby syndrome or abusive head trauma did not provide 

a necessary inferential step toward conviction. Presenting expert witnesses to testify 

against those theories would not have created a “reasonable probability” that “the 

result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

Glucksmann’s claim therefore fails.

E. Evidentiary Hearing

Glucksmann requests an evidentiary hearing “to present witnesses and 

evidence to further support [his] claims.” (Dkt. 1, pgs. 1, 43 (quote on pg. 43); Dkt. 23, 

pg. 17.) Before a federal court conducts an evidentiary hearing in a § 2254 case, the 

requirements of 28 U.S.C. § 2254(e)(2) must be met. Under that section, “[i]f [a

petitioner] has failed to develop the factual basis of a claim in State court 

proceedings,” he must satisfy the higher standards of § 2254(e)(2)(A) and (B), which 

require not only a showing that the evidence could not have been previously 

discovered, but also that the new facts “would be sufficient to establish by clear and 

convincing evidence that but for constitutional error, no reasonable factfinder would 

have found the applicant guilty of the underlying offense.” § 2254(e)(2)(B).

Glucksmann says a hearing would allow him to introduce scientific evidence to 

discredit the theories of shaken baby syndrome and abusive head trauma and clear 

up any ambiguities in Dr. Strimling’s testimony. But he does not specify how either 

subjects could not have been previously discovered or how a hearing would result in 

the requisite clear and convincing showing. He does not grapple with § 2254(e)(2)(A) 

and (B). See also Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022) (adding that a federal 

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habeas court is not required to take any evidence, and the decision to permit new 

evidence must be informed by principles of comity and finality). Given this court’s 

determination that the state courts did not act unreasonably and that Glucksmann’s 

proffered subject areas of inquiry would not have affected the outcome of the trial, an 

evidentiary hearing is unnecessary.

III. Conclusion

Glucksmann’s habeas corpus petition, (Dkt. 1), is denied. The court declines to 

issue a certificate of appealability.12 The Clerk shall: (1) terminate Respondent 

Clarke from the docket, (2) add Melinda Eddy, Warden, Taylorville Correctional 

Center, as Respondent, (3) alter the case caption to Glucksmann v. Eddy, and (4) 

enter judgment and terminate civil case.

ENTER:

____________________________

Manish S. Shah

United States District Judge

Date: 12/19/2022

12 Glucksmann had a viable trial strategy, but the verdict was based on a fact finder’s 

reasonable weighing of admissible evidence, and the state courts evaluated the legal issues 

within the bounds of settled principles. Glucksmann has not made a substantial showing of 

the denial of a constitutional right, or that reasonable jurists would debate, much less 

disagree with, this court’s resolution of Glucksmann’s claims, including its procedural 

rulings. Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008) (citing 28 U.S.C. 

§ 2253(c)(2)); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

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