Stephen Deuman, the man convicted of killing his daughter during a sexual assault, has petitioned the court to vacate his conviction, according to court records.
If a judge would not grant acquittal, the defense is asking for a new trial. Court records show that the defense says the evidence does not support forceful rape, rather that the child accidentally choked on a used condom.
The 15-week old baby died Aug. 12, 2010 after her father, Stephen Deuman said her found her dead body on the floor next to his bed. He also said he found a condom in her mouth.
The condom contained the baby's DNA on the outside and the DNA of her parents, which attorney Richard Stroba says is "consistent with (Evelynee) choking on a used condom."
Federal prosecutors have not yet responded to the filings.
The case was handled in federal court because the killing occurred on an American Indian reservation.