Shamlodhiya v. Akpore et al

Filing 58

MEMORANDUM Opinion and Order. The court denies Shamlodhiya's petition for a writ of habeas corpus. Because Shamlodhiya has not "made a substantial showing of the denial of a constitutional right," the court declines to grant a certificate of appealability. 28 U.S.C. § 2253(c)(2). Signed by the Honorable Rebecca R. Pallmeyer on 9/4/2019. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America ex rel.
ASHWANI SHAMLODHIYA, R41722,
Petitioner,
v.
KEVWE AKPORE, Warden,
Hill Correctional Center,
Respondent.

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No. 13 C 8313
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
In April 2001, Petitioner Ashwani K. Shamlodhiya moved to West Chicago; rented a
bedroom in the home of Michael Li and his wife, Susan; and promptly began a sexual relationship
with Susan Li. Then, on the morning of September 11, 2001, Petitioner and Michael got into an
altercation. Petitioner struck Michael in the head with a hammer three times, killing him, and
started a fire in the Li home. The State charged Petitioner with arson and first-degree murder.
Petitioner has maintained throughout that Michael attacked him and that the killing was in selfdefense.
Petitioner had two jury trials in 2004, one in April, and one in October. In the April trial, a
jury convicted him of arson and residential arson but was deadlocked on the murder charge
because it "could not agree on a verdict among its choices of first degree murder, second degree
murder, involuntary manslaughter, and not guilty based on self defense."

(Rule 23 Order,

People v. Shamlodhiya, No. 2-05-0200, 373 Ill. App. 3d 1165, 943 N.E. 2d 339 (Table), 348 Ill.
Dec. 14 (Jul. 18, 2007), Ex. A to Answer (hereinafter "2007 Appellate Order") [23-1] at 2.) In the
October trial, a jury convicted Petitioner of first-degree murder after receiving only first-degree
murder, involuntary manslaughter, and self-defense instructions. Petitioner directly appealed his

murder conviction and completed postconviction proceedings in state court. Petitioner is currently
serving his 22-year first-degree murder sentence. 1
Shamlodhiya petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He seeks relief for the alleged ineffective assistance of his trial counsel, arguing (1) that his
counsel misinformed him about their trial strategy at the second trial, causing him to "forego [a]
second degree murder instruction to the jury," and (2) that his trial counsel "without consulting
[him], nullified the submission of [an] involuntary manslaughter" instruction at the second trial.
(See Petition [7] at 15, 19.) Petitioner also requests that this court "reduce first degree murder to
second degree murder," (id. at 22), or that it grant "any relief [the court] feels deserving, that law
& justice requires." (Reply [55] at 7.) 2 As explained here, Shamlodhiya's petition is denied.
BACKGROUND
I.

Factual Background
Absent clear and convincing evidence to the contrary, the court presumes that the "state

court's account of the facts are correct." Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012)
(citing 28 U.S.C. § 2254(e)(1); Miller–El v. Dretke, 545 U.S. 231, 240 (2005)). The facts below
are derived from the last state court opinion fully discussing the factual background of the case
(2007 Appellate Order) and from the October trial transcript. 3

1

His four-year arson sentence is to be served consecutively. The arson conviction
and sentence are not at issue here.
2

Petitioner also requests that the court "grant [him] a new trial for 1st-degree murder
or please request Assistant Appellate Defender Thomas Karalis . . . to represent me in P.L.A."
(Ex. A to Petition [7-1] at A112).
3

Illinois appellate courts issued several subsequent opinions in this case during
postconviction proceedings. See Rule 23 Order, People v. Shamlodhiya, No. 2-08-0440, 404 Ill.
App. 3d 1178, 996 N.E. 2d 776 (Table), 374 Ill. Dec. 1081 (Nov. 3, 2010), Ex. I to Answer
(hereinafter "2010 Appellate Order") [23-9] (reversing and remanding the circuit court's denial of
Petitioner's state postconviction petition); People v. Shamlodhiya, 2013 IL App (2d) 120065, 986
N.E. 2d 204, 369 Ill. Dec. 255, reh'g denied Apr. 26, 2013. (hereinafter "2013 Appellate Opinion"),
Ex. M to Answer [23-13] (affirming the circuit court's denial of Petitioner's state postconviction
2

Shamlodhiya, originally from India, completed a master's degree at the University of
Miami. (Petition at 13; 2007 Appellate Order at 13–14.) He then took a job in DuPage County
and moved to West Chicago in April 2001, renting a room in the home of Susan and Michael Li.
(2007 Appellate Order at 6.) "Shortly after" he moved in, Petitioner began a sexual relationship
with Susan Li. (Id.) Those relations ended in May 2001 but were rekindled briefly in August of
the same year while Michael was out of town. (Id. at 6, 14.) Susan testified at trial that she
thought her husband knew about her relationship with Petitioner. (Id. at 7 ("On cross-examination,
when asked whether Michael knew about her sexual relationship with defendant, Susan replied,
'I think so, yes.'").) Her testimony was somewhat equivocal on this score, however. Asked what
she told her husband about having sex with Petitioner, Susan responded, "I forgot." (See id. at 7.)
She also "forgot" whether she had "specifically asked [her] husband if [she] could have sex with
[Petitioner]." (Id. at 8.) After several other evasive answers, the trial judge reminded Susan during
a recess that "she was under oath and must answer the questions posed her." (Id. at 9–10.) The
judge also "admonish[ed] her that she must answer questions truthfully," and "questioned the
veracity of her testimony under cross-examination." (Id. at 10.) On re-direct examination, Susan
acknowledged having told police that she “only [slept] with [defendant] because Mike gave [her]
permission” and that her statement to the police was true. (Id. at 11.)
Petitioner's testimony at his April trial (that transcript was read to the jury in the October
trial) conflicted with Susan's. 4 In an apparent effort to establish that Michael attacked in in a

petition on remand). Neither opinion provides the full factual background of the case: the 2010
Appellate Order recounts only portions of the statements of Shamlodhiya's defense counsel's
closing argument, and the 2013 Appellate Opinion directs readers to the 2007 Appellate Order
for background information, recapping only information relevant to the postconviction appeal.
4

Shamlodhiya testified at his both the April and the October trial. During the October
trial, "the State [ ] read a transcript of [Petitioner's] testimony from his [April] arson trial to the jury."
(2007 Appellate Order [23-1] at 13.) The Illinois Appellate court explained that "[m]uch of his
testimony [in October] repeated his testimony from his previous trial." (Id. at 21.)
3

jealous rage, Petitioner testified that Michael did not know about Petitioner’s relationship with
Susan and had only been "suspicious." (Id. at 14.) He testified further that, in August, Susan had
told him "that she intended to tell her husband about their relationship, but [Petitioner] convinced
her to delay telling Michael until after [Petitioner] moved out of the house in December or January."
(Id.)
On the morning of September 11, 2001, Susan had already gone to work, and Michael
agreed to take Petitioner to work because Petitioner was having car trouble. Michael first took
his and Susan's 9-year-old son to the bus stop nearby while Petitioner waited at home. Petitioner
then testified that he heard talking, and he came downstairs from his upstairs bedroom to see
"Michael standing near a telephone rubbing his head." (Id. at 15.) The 2007 State Appellate
opinion recounts what happened next:
[Shamlodhiya] asked Michael who was on the telephone, but Michael simply stared
at the floor and did not respond. When [petitioner] asked a second time, Michael
asked him why he was asking. Michael told [petitioner] that it was none of his
business, and he said the word "business" "so loudly like a little bit of saliva just
came out of his mouth." [Petitioner] noted that Michael appeared to be angry.
Michael asked defendant why Susan's picture was in his room, and, after the two
walked up to defendant's room and Michael showed defendant a picture of Susan
from defendant's drawer, defendant explained that Susan had given him a picture
for a website defendant was to design for her. . . . Defendant left his room and
went downstairs, and Michael followed him.
(Id.) Petitioner's theory was that Susan had called from work to tell Michael about her relationship
with Petitioner; Susan herself denied having done so. She "testified that . . . she did not call
Michael and admit her relationship with defendant" that morning. (Id. at 7.)5
Once downstairs, "[Petitioner] resolved to leave Michael alone for a while in order to give
[Michael] time to calm down, and [Petitioner] started to unlatch the front door to go outside." (Id.

5

Telephone records submitted to the jury showed that Susan called home twice on
the morning of September 11, between 8:34 and 8:35, and each call lasted less than one minute.
(Id. at 45.) Although he "did not know precisely when," Petitioner testified that he believed "the
school bus picked up the Lis' child at 8:43 a.m." (Id.)
4

at 15.) It appears the he got so far as unlatching the front door. (Id. at 18.) He did not leave,
however; "Michael told [Petitioner] that they needed to leave," presumably so that Michael could
take Petitioner to work. Instead of going out the door, Petitioner "turned around and started
walking toward the kitchen area" where Michael was. (Id. at 15.)
In the kitchen, Petitioner claimed, Michael began asking Petitioner questions about his
relationship with Susan.

After Michael asked Petitioner whether he had slept with Susan,

Petitioner testified that Michael hit Petitioner in his "private parts." (Id. at 16.) Petitioner "fell to
his knees on the floor, and Michael hit him again." (Id.) Petitioner testified that Michael then
"pulled a hammer out of a drawer. Upon seeing the hammer, [Petitioner] tried to run to the laundry
room, but Michael followed him and hit him on the back of the head. [Petitioner's] next memory
was waking up on the floor while Michael was holding him by the neck." (Id.) Michael then struck
some of Petitioner's fingers with the hammer. (Id.)
After a struggle, Petitioner "won control over the hammer." (Id.) "Michael chased him
around the center island of the kitchen and began throwing utensils at him and imploring him to
'come here.' On cross-examination, [Petitioner] explained that he used the kitchen island to
protect himself while Michael chased him." (Id.) There was a sliding glass door or window in the
kitchen, but Petitioner acknowledged that he made no effort to exit through it. (See Shamlodhiya
Testimony, Ex. YY to Answer (hereinafter "Shamlodhiya Testimony") [27-13] at 185:2–6 ("Q. So
you could have just run right out here through that glass, sliding glass window, correct? A. Yes,
sir. Q. But you didn't? A. No, sir, I did not."); id. at 190:1–8 (pointing out, on cross-examination,
another opportunity Petitioner had to exit the sliding glass door).) The State emphasized on crossexamination that Shamlodhiya never attempted to exit that door during the altercation. (See, e.g.,
id. at 187:6–10; 2007 Appellate Order at 18–19, 23–24.)
Petitioner testified that he approached the home phone and told Michael he was going to
call the police. (Shamlodhiya Testimony [27-13] at 187:11–188:3.) He walked away from the
5

phone, however, when Michael "came very fast towards [him] with his hand behind his back."
(Shamlodhiya Testimony [27-13] at 188:6–8.) He testified that Michael then unplugged the phone.
(2007 Appellate Order at 24–25; Shamlodhiya Testimony [27-13] at 189:2–7.) After that, Michael
swung at him with a knife, but Petitioner "pushed him back with the hammer," striking Michael in
the face. (2007 Appellate Order at 17.)
[Petitioner] was backing up during the confrontation, and he backed up further as
Michael continued toward him. Michael "came very fast *** with the knife," and
[Petitioner], who "was scared," "just hit him at that time." [Petitioner] hit him once
on the left temple or left forehead, and twice more in the head when Michael
continued towards him. [Petitioner] struck all three blows before Michael went to
the ground.
(Id. (modifications in original).) The forensic pathologist who later conducted an autopsy on
Michael confirmed at trial that Michael's skull had "three depressed skull fractures: the first above
the left eye on the forehead, the second above the right ear on the side of his head, and the third
on the back of the head 'a little to the right of the mid-line.' " (Id. at 4.) The autopsy also revealed
"two bruises on the head," "lacerations under the victim's scalp, on the lip, below the eyebrow,
and on the right cheek," and Michael's "nose also appeared to have been broken." (Id.) According
to the pathologist, “any of the three skull fractures could have been fatal." (Id. at 5.)
After striking Michael with the hammer, Petitioner explains that he "started to leave," but
"realized that Michael was dead" and "panicked." (Id. at 17.) He took Michael's body to the
basement of the home and decided to "try to make the whole incident look like a robbery." (Id.)
Petitioner testified that he removed the knife Michael had brandished, cleaned it, and put it
somewhere else to promote the appearance of a robbery. (Shamlodhiya Testimony [27-13] at
168:8–169:18.)
Eventually, Petitioner decided to commit suicide. (2007 Appellate Order at 17.) First, he
tried to hang himself in the basement, but he "lost his nerve." (Id.) He then "decided to asphyxiate
himself by starting a fire" in the basement. (Id.) He started two fires—"one near the top of the
stairs and another under the stairs." (Id. at 18.) Shortly after starting the fires, he escaped the
6

house and summoned help. He told the police that an intruder had attacked him and Michael,
but, "[o]n cross-examination, [Petitioner] agreed that the entire story he told police about an
intruder was a lie." (Id.) Petitioner was taken to the hospital for his injuries. An officer who visited
him in the hospital testified that Petitioner "had a bruise on his forehead, a swollen and red right
cheek, a swollen and bruised lower lip, and a bruised and scraped left hand. There was also
dried blood on defendant's lip, left hand, and chest. [The officer] did not notice any knife wounds
on [Petitioner]." (Id. at 11.) Another officer testified that Petitioner's "lips, right cheek, and left
forehead appeared to be swollen [and that his] left hand was bandaged." (Id. at 5.) Petitioner
was arrested a few days later.
As noted earlier, Petitioner was tried twice for murder. The jury was deadlocked on the
murder charge during the April 2004 trial. Following that trial, Shamlodhiya turned down the
State's offer to have a "bench trial on stipulated evidence" on a charge of second-degree murder.
(People v. Shamlodhiya, 2013 IL App (2d) 120065, ¶ 2, 986 N.E. 2d 204, 369 Ill. Dec. 255, reh'g
denied Apr. 26, 2013 (hereinafter "2013 Appellate Opinion"), Ex. M to Answer [23-13].) He was
re-tried for murder in October 2004. There, he was represented by two public defenders, Robert
Miller and Thomas Ost. Near the end of that trial, the court held a hearing on jury instructions.
(See Trial Transcript, Ex. FF to Answer (hereinafter "Trial Transcript") [25-9] at 958:1–968:24.)
Both Mr. Ost and Petitioner himself confirmed for the court that the "[involuntary manslaughter
instruction] is being given at the request and with the understanding of" Shamlodhiya. (2007
Appellate Order at 25; Trial Transcript [25-9] at 964:6–14.) Petitioner also informed the court that
he had conferred with his attorneys and did not want a second-degree murder instruction. (See
Trial Transcript [25-9] at 966:13–967:1 ("The Court: Is it correct then that you are not asking that
that [second degree murder] instruction be given? Defendant Shamlodhiya: Yes, sir. . . . The
Court: You talked to your attorneys about that and that's your decision, is that correct, with their

7

advice? Defendant Shamlodhiya: Yes, sir.").) 6 These jury instructions, along with the contents
of the closing arguments from trial, lie at the heart of Shamlodhiya's habeas corpus petition.
In closing, the prosecutor re-capped how Petitioner had changed his story to the police
multiple times. The prosecutor also emphasized Petitioner's intelligence and education while
disparaging Petitioner's trial testimony. (Trial Transcript [25-9] at 998:21–999:12 (describing the
ways the prosecution believed Petitioner had changed his story over time); id. at 1021:6–8
(arguing that "this smart guy had a plan. He had a plan."); see also id. at 1092 (calling Petitioner
"a liar" during rebuttal).) 7 The prosecutor further emphasized Petitioner's opportunities to avoid
confrontation with Michael. (See 2007 Appellate Order at 30 (quoting the State's closing: "Now,
the defendant did not run away. Defendant said he panicked. He just didn't think of it. . . . What
is the most instinctual thing to do when someone is coming after you? To get the heck out of
there, and he had every opportunity to do that.").) In making this argument, the prosecutor told
the jury: "Defendant has numerous times to escape and never does. . . . He doesn't have to run.
The law says he does not have to run. You will get an instruction on that." (Id.) The jury was
never given a no-duty-to-retreat instruction, however. Finally, the State argued that "[i]f you look
at the facts and circumstances of this case, involuntary manslaughter couldn't apply" because
there was "[n]othing reckless" about Shamlodhiya's actions. (Trial Transcript [25-10] at 1024:12–
1025:3; see also id. at 1025:15 ("Involuntary manslaughter does not apply. Under the law, it
might, but the facts of this case, absolutely not.").)

6

The parties also confirmed that first-degree murder and self-defense instructions
would be given. (Trial Transcript [25-9] at 25:16–18, 30:7–19.)
7

Several pages of the trial transcript appear to be missing from the State's exhibits.
The last page of transcript in Exhibit FF, page 1000, does not align with the first page of Exhibit
GG, page 1001. Thus, the court relies, in part, on the 2007 Appellate Order, which quotes parts
of the parties' closing statements.
8

In the defense closing, Attorney Miller made a self-defense argument; he emphasized the
reasons Michael had for attacking Petitioner first and recounted Petitioner's account of the
aggression. (See, e.g., id. at 1038:23–1039:14, 1040:12–1046:17.) Miller also reminded the jury
about the involuntary manslaughter instruction:
[The] Judge will give you the choice of looking at involuntary manslaughter and
deciding whether or not that is the charge that [Petitioner] is truly guilty of.
I consider that a compromise verdict. This has been a trial of self defense. We
started with self defense and we are ending with self defense, because that is the
truth; and every piece of physical evidence . . . supports [Petitioner's] version of
what occurred; that is self defense.
Now, the State may try to argue to you yet, but the evidence still supports
involuntary manslaughter. They may argue, why don't you compromise? We are
not asking you that. It's a case of self defense.
I don't want the compromised verdict, and I don't want first degree murder, because
the State can't prove it.
(Id. at 1089:1–18.)
The state doubled down on Miller's statements about involuntary manslaughter during its
rebuttal: "I do agree with counsel on one thing. Involuntary manslaughter has nothing to do with
the case. Counsel says, don't consider it. I agree. He's absolutely right. It has nothing to do
with this case. It's a murder case." (Id. at 1109:19–23.) After closings, the court gave the jury
instructions on first-degree murder, involuntary manslaughter, and self-defense. Neither party
submitted an instruction regarding defendant's duty to retreat, and none was given. (2007
Appellate Order at 31.) The jury returned a guilty verdict on the first-degree murder charge, and
Petitioner was ultimately sentenced to twenty-two years in custody.
II.

Post-Trial Proceedings
Following his conviction, Petitioner "filed a pro se posttrial motion alleging ineffectiveness

of counsel, and the trial court held a preliminary hearing on the motion on January 6, 2005." (Id.
at 31.) In his motion, Petitioner argued that his counsel should have requested a no-duty-toretreat instruction. He also argued that the trial court should have given a second-degree murder
9

instruction, despite his having specifically confirmed to the trial judge that he did not want such
an instruction. That motion, and a later one (not identified in this record) were denied. (2007
Appellate Order at 32.)
Petitioner Shamlodhiya then directly appealed his conviction through counsel. He first
argued that the prosecution's statements about a forthcoming no-duty-to-retreat instruction that
was never actually tendered deprived him of a fair trial. The Appellate Court disagreed, finding
that "none of the items [Petitioner] complains of were actually error, or, in any event, were
sufficiently prejudicial to be reversible error, either individually or in total." (Id. at 38.) He also
argued that some of the factual contents of the prosecution's closing argument caused undue
prejudice. The Appellate Court rejected that argument, too, and Petitioner has not raised those
issues in this habeas petition.
More importantly for this case, Petitioner also argued that his defense counsel was
ineffective when they "tendered instructions on involuntary manslaughter pursuant to [Petitioner's]
wishes but subsequently disavowed the lesser offense without any apparent consent from
[Petitioner]." (2007 Appellate Order at 1; see Brief and Argument for Defendant-Appellant, Ex. B
to Answer [23-2] at 58.) The Appellate Court denied Shamlodhiya's appeal on these grounds as
well, but later granted a petition for rehearing solely on this issue. Upon rehearing, the court did
not issue a new opinion; instead, the panel modified its original opinion. (2007 Appellate Order
at 42–44; Answer [22] at 15; Petition for Rehearing, Ex. E to Answer [23-5].) The ruling majority
explained that it understood Petitioner's position "not [to be] that counsel's argument equated to
a withdrawal of the jury instruction on the lesser included offense, but rather that counsel's
argument undermined defendant's decision to tender the [involuntary manslaughter] instruction."
(2007 Appellate Order at 42; see id. at 49 (Johnson, J. dissenting "on the issue of whether a
defense attorney may, through his closing argument, advise the jury to disregard the defendant's
decision to tender a lesser included offense instruction to the jury").) The court explained that a
10

criminal defendant does have "the exclusive right to decide whether to submit an instruction on a
lesser-included offense." (2007 Appellate Order at 39 (quoting People v. Medina, 221 Ill. 2d 394,
403–04, 851 N.E. 2d 1220, 303 Ill. Dec. 795 (2006)).) 8 But it ultimately "reject[ed] [Petitioner's]
premise that [his] counsel's [closing] argument [ ] effectively undermined the jury instruction even
though the instruction was actually tendered," because "jurors are presumed to follow the court's
instructions," regardless of counsel's closing arguments. (2007 Appellate Order at 43 (citing
People v. Malave, 230 Ill. App. 3d 556, 563, 595 N.E. 2d 117, 123, 172 Ill. Dec. 54, 60 (1992)).)
The court observed that defense counsel's closing argument could have had "a discernable
strategic advantage" and affirmed Shamlodhiya's conviction. (2007 Appellate Order at 43.)
Petitioner's Petition for Leave to Appeal ("PLA") was denied by the Illinois Supreme Court on
November 29, 2007. (Petition for Leave to Appeal, Ex. G to Answer [23-7]; Denial of PLA, Ex. H
to Answer [23-8].)
Early in 2008, Petitioner initiated state collateral proceedings, raising some similar and
some new issues. 9 (See Postconviction Petition, Ex. Y to Answer [24-16] at PageID # 2192.)
Relevant to the present Petition is Shamlodhiya's argument, echoing his argument on direct

8

Such a right is recognized as a matter of Illinois law. See People v. Brocksmith,
162 Ill. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994) ("As the comments to the ABA Standards
suggest, we believe that the decision to tender a lesser included offense is analogous to the
decision of what plea to enter, and that the two decisions should be treated the same."). Failure
of a state court to give a lesser-included-offense instruction is not, by itself, a basis for habeas
relief; instead, “the question is . . . whether failure to do so constituted a defect so fundamental
that it results in a complete miscarriage of justice or omission inconsistent with the standards of
fair procedure." Reeves v. Battles, 272 F.3d 918, 920 (7th Cir. 2001).
9

New grounds for relief, not raised in the petition before this court, included that trial
counsel failed to call as a witness a doctor "who could have testified" that Shamlodhiya "did inform
him of the pain in the back of [his] head," supporting Petitioner's contention that Michael was the
initial aggressor; that trial counsel failed to elicit on cross-examination that Susan "ha[d] been
taking antidepressant medications," apparently at the time of trial; and that his appellate counsel
on direct appeal failed to raise several ineffective assistance of trial counsel claims. (See
Postconviction Petition, Ex. Y to Answer [24-16] at PageID ## 2194–98.)
11

appeal, that his "[t]rial counsel told the jury to abandon Involuntary Manslaughter. . . . Trial
counsels never informed me prior to closing argument that they would ask the jury to ignore
Involuntary Manslaughter." (Postconviction Petition, Ex. Y to Answer [24-16] at PageID # 2194.)
Petitioner also argued that appellate counsel was ineffective for failing to raise a claim of
ineffective assistance of counsel, based on trial counsel's failure to request a second-degree
murder instruction. (Memorandum Opinion, Ex. Z to Answer [25-1] at PageID # 2271.) The trial
court denied all of Petitioner's claims in a written memorandum. (Id. at PageID # 2265.)
Petitioner appealed, through new counsel, raising "a single issue—whether his trial
attorney was ineffective for abandoning defendant's request that the jury consider . . . involuntary
manslaughter[ ] during closing argument." (Rule 23 Order, People v. Shamlodhiya, No. 2-080440, 404 Ill. App. 3d 1178, 996 N.E. 2d 776 (Table), 374 Ill. Dec. 1081 (Nov. 3, 2010), Ex. I to
Answer (hereinafter "2010 Appellate Order") [23-9], at PageID # 683; see Brief and Argument for
Plaintiff-Appellee, Ex. K to Answer [23-11].) The Second District Appellate Court reversed and
remanded in November 2010, determining that "[D]efendant has identified an arguable basis in
both law and fact regarding his claim . . . sufficient to survive the first stage of postconviction
proceedings." (See id. at 4.) 10

10

The appellate court also determined that res judicata did not preclude
Shamlodhiya's postconviction petition, relying on a footnote in the 2007 Appellate Order that, in
the 2010 Appellate Court's view, "expressly reserve[d] . . . [Shamlodhiya's] right to bring a
subsequent action." (2010 Appellate Order at 5 (citing People v. Carroccia, 352 Ill. App. 3d 1114,
1124, 817 N.E.2d 572, 288 Ill. Dec. 214 (2004)).) (Res judicata had been the state's only
response in the postconviction appeal.) That footnote read: "To the extent there is some
evidence, not in the record on appeal, that defendant did not agree [for his trial counsel not argue
involuntary manslaughter], that is not a matter we are able to consider in this appeal. . . . Our
view is that the proper procedure for bringing forth such evidence lies elsewhere (eg. [sic], under
post-conviction proceedings . . . )." (2007 Appellate Order at 42 (citation to state statute omitted).)
Petitioner, seizing on this invitation, attached an affidavit from one of his trial attorneys to his
postconviction petition, as evidence that Petitioner had not agreed with trial counsel's closing
tactic. The 2010 Appellate Court reviewed that affidavit and explained that, while the 2007
decision had foreclosed the issue of "disavowal" of the involuntary manslaughter instruction, it
had not definitively determined whether trial counsel had "withdrawn" the instruction. (2010
Appellate Order at 5–6.) (Neither the 2007 nor the 2010 Appellate Order identifies a clear
12

On remand, Petitioner moved pro se to amend his petition to include, in addition to his
previously-raised grounds, the argument that, if his trial counsel had told him "that [counsel] would
argue to jury to ignore involuntary manslaughter . . . then I would have made an 'intelligent and
informed decision' to give 2nd-degree murder instruction to the jury." (Motion to File Supplement
to Amend Post-conviction Petition, Ex. Z to Answer [25-2] at PageID # 2442.) This pro se motion
followed, by two days, a petition filed by counsel who made a slightly different argument: that,
"[h]ad Defendant been aware that trial counsel would abandon the pursuit of a finding of guilt on
involuntary manslaughter, Defendant would have explored his other options to resolve this case,
including pursuing a bench trial." (Amended Petition for Post Conviction Relief, Ex. Z to Answer
[25-1] at PageID # 2320, 2322.) Under those circumstances, counsel urged, Petitioner may have
been found guilty for second-degree murder instead of first-degree murder. (Id.)
The trial court granted an evidentiary hearing on whether trial counsel's statements about
involuntary manslaughter during closing were "trial strategy or inadvertent," dismissing all of
Petitioner's other claims. (Hearing Transcript of Nov. 7, 2011, Ex. ZZ to Answer [27-15] at PageID
# 8738; see also Hearing Transcript of Nov. 10, 2011, Ex. ZZ to Answer [27-15] at PageID # 8745
("We can't, frankly, keep rehashing these issues every time the defendant, pro se, decides he
wants to raise another issue."); Brief and Argument for Petitioner Appellant, Ex. N to Answer [2314] at 16 (explaining that, with the exception of the involuntary manslaughter issue, "the [trial]
court granted the State's motion to dismiss" all other postconviction claims on remand).) At the
December 2011 evidentiary hearing, Attorney Miller testified that he did not intend to tell the jury

distinction between “disavowal” and “withdrawal,” but the opinions suggest that these courts view
disavowal as a strategy-based determination that can be made by an attorney, while withdrawal
implicates the criminal defendant’s rights under state law (discussed infra n. 8.) (See 2007
Appellate Order at 38–42; 2010 Appellate Order at 6.)) Because the 2010 Appellate Order
concluded that the attorney's affidavit appeared to address withdrawal (the issue reserved the in
2007 footnote), claim preclusion did not bar the argument.
13

not to consider involuntary manslaughter. (See Hearing Transcript of Dec. 27, 2011, Ex. ZZ to
Answer [27-15] at PageID # 8780:9–19 (testifying that he did not object when the prosecution, in
rebuttal, characterized his closing argument as telling the jury "not to consider involuntary
manslaughter," but explaining that that messaging "wasn't [his] intent . . . Maybe that was
conveyed through [the prosecutor's] remark and the absence of an objection by my part, but that
wasn't my intent").) Instead, Miller explained his reasoning, making clear that his argument was
a function of strategy. He was "fearful that if we didn't get 12 people to agree on self-defense out
of the box, that we might have a split jury," and so he attempted to "make it look as if [the trial
judge] was the one who tendered [the involuntary manslaughter instruction]" so that "if [the jury
was] compromising, they [wouldn't] feel as if they're giving a benefit to either side." (Id. at
PageID # 8779:9–19; see id. at PageID # 8779:19–22 ("It was my belief that I wasn't abandoning
the verdict, but giving the jury a third choice if they weren't unanimous on the self-defense.").) 11
Following this hearing, the trial court dismissed this last claim in a written memorandum opinion.
(See People v. Shamlodhiya, 01-CF-2665 (18th Cir. Cty. of Du Page Jan. 17, 2012), Ex. AA to
Answer (hereinafter "2012 Circuit Court Opinion") [25-4], at PageID # 2628, 2631 (analyzing
Attorney Miller's actions under Strickland v. Washington, 466 U.S. 668 (1984), and holding that
Shamlodhiya did not "establish[ ] that counsel's conduct effected a withdrawal of the involuntary
manslaughter instruction nor did his performance fall below an objective standard of
reasonableness").)

11

Attorney Miller had also written Shamlodhiya a letter explaining his approach to
the closing argument, which Shamlodhiya attached to his initial state postconviction petition. (See
Jan. 13, 2008 Letter, Ex. Y to Answer [24-16], at PageID # 2203.) In that letter, Miller explains
that: "Arguing two contrasting theories to a jury is always difficult. It was my strategic decision to
ask for a 'not guilty' verdict . . . . Telling the jury that Involuntary Manslaughter was a 'compromise
verdict' necessarily implies a blending of the Defense's request for a 'not guilty' verdict with the
state's request for a 'guilty' verdict." (Id.)
14

Shamlodhiya again appealed. First, he argued that "his [trial] attorneys' failure to disclose
to him that they would not argue for the lesser included offense of involuntary manslaughter
rendered him incapable of making a knowing decision regarding whether to seek a second-degree
murder conviction in a bench trial." (2013 Appellate Opinion ¶ 2.) He also again raised his
argument regarding the withdrawal of the involuntary manslaughter instruction. (Id.) This time,
the Appellate Court affirmed the dismissal. (Id. at ¶ 20.) Regarding the second-degree murder
instruction, the court reasoned that "[t]he content of closing argument is generally considered a
matter of trial strategy" (id. at ¶ 15 (citations removed)), and that even though the contents of the
closing argument here arguably affected Shamlodhiya's right under the Illinois Constitution to
decide whether to waive a jury trial, "it is not enough that counsel's argument may have impacted
upon [his] decision to seek a bench trial and a conviction of second-degree murder." (Id. at ¶¶ 16,
18.) "The mere fact that an issue has constitutional implications does not mean that it necessarily
rises to the level of a constitutional deprivation." (Id. at ¶ 17.) Regarding the withdrawal of the
involuntary manslaughter instruction, the Appellate Court concluded that "nothing in counsel's
closing argument [ ] would amount to the functional withdrawal of the involuntary-manslaughter
instruction." (Id. at ¶ 20.) Thus, the Second District fully affirmed the dismissal. Petitioner's
request for rehearing was denied. (See Order Denying Petition for Reh'g, Ex. R to Answer [24-3]
(reiterating that the content of a closing argument is a matter of trial strategy).) The Illinois
Supreme Court denied Petitioner's PLA on September 25, 2013. (People v. Shamlodhiya, 996
N.E. 2d 21 (Table), 374 Ill. Dec. 574 (Ill. 2013), Ex. T to Answer (hereinafter ("2013 PLA Denial")
[24-5].)
Shamlodhiya filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 in
November 2013. After filing his federal petition, Shamlodhiya sought, and was granted, an
"extension of time and/or stay of proceeding" to pursue additional claims in state court. (Minute
Entries [29, 31, 41, 43, 50, 54].) This court previously characterized its stay as providing Petitioner
15

the opportunity to "explore the possibility of filing a successive post-conviction petition in state
court on what he characterizes as a new claim: that the trial court's failure to ask defense counsel
whether they wanted a second-degree murder instruction effectively denied Petitioner's due
process and equal protection rights." United States ex rel. Shamlodhiya v. Dorethy, No. 13 C
8313, 2015 WL 5731854, at *2 (N.D. Ill. Sept. 30, 2015) (emphasis in original). In his October
2014 Motion for Stay of Proceedings, Shamlodhiya informed the court that he had "filed a
successive post-conviction petition in trial court on Sept. 15, 2014, and the [state circuit] court
denied it on Sept. 30, 2014." (Motion for Stay of Proceedings [32].) He filed an appeal of that
denial, which was denied some time in late 2016 or early 2017. (Status of Petitioner's State Court
Proceedings [49] ¶ 1.) The Illinois Supreme Court denied Shamlodhiya's PLA on March 29, 2017.
People v. Shamlodhiya, 80 N.E. 3d 5 (Table), 414 Ill. Dec. 272 (Ill. 2017). Neither the substance
of Petitioner's state court filings, nor the contents of the state courts' decisions, have been filed
with this court. Petitioner filed his reply brief in this court on July 28, 2017 following the denial of
his PLA, and his habeas petition is now fully briefed.
DISCUSSION
I.

Legal Standard
Section 2254 of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") permits a

federal district court to grant a writ of habeas corpus for a state prisoner "only on the ground that
[the prisoner] is in custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254. When a state court has adjudicated the merits of a habeas petitioner's claim,
the court looks to the "last state court decision to address the merits of a prisoner's claim." Weaver
v. Nicholson, 892 F.3d 878, 883 (7th Cir.), cert. denied, 139 S. Ct. 649 (2018). "[A] federal court
may grant habeas relief . . . only when that decision (1) '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) 'was based on an unreasonable determination of the facts in
16

light of the evidence presented in the State court proceeding.' " Schmidt v. Foster, 911 F.3d 469,
476–77 (7th Cir. 2018) (quoting §§ 2254(d)(1), (2)). And, of course, before a prisoner may raise
any claim in a federal habeas petition, he must first "exhaust his remedies in state court." Snow v.
Pfister, 880 F.3d 857, 864 (7th Cir.), cert. denied sub nom. Snow v. Nicholson, 138 S. Ct. 2637,
201 L. Ed. 2d 1030 (2018) (citing Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016);
§ 2254(b)(1)(A)).
II.

Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, Shamlodhiya must "show: (1) that

[his] attorney provided constitutionally deficient performance; and (2) that the deficient
performance prejudiced [his] defense." Reynolds v. Hepp, 902 F.3d 699, 704 (7th Cir. 2018)
(citing Strickland v. Washington, 466 U.S. 688, 687 (1984)). "Counsel is constitutionally deficient
if her assistance falls below 'an objective standard of reasonableness.' " Jordan v. Hepp, 831
F.3d 837, 846 (7th Cir. 2016) (quoting Strickland, 466 U.S. at 687–88). That standard creates a
high hurdle for habeas petitioners: "Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment." Jordan, 831 F.3d at 846. Combined with "Section 2254(d)(1)'s deferential standard
of review of the state court's decision, . . . Strickland's presumption that counsel acted reasonably"
creates a " 'doubly' deferential' . . . [standard for reviewing] the state court's decision" in ineffective
assistance of counsel claims. Jordan, 831 F.3d at 846.
Shamlodhiya's two ineffective assistance of counsel claims are closely related. First, he
mirrors his state-court claim on involuntary manslaughter, arguing that his counsel's closing
argument "nullified" the involuntary manslaughter instruction. Second, he contends that his trial
counsel was "ineffective for misinforming [him] of [counsel's] strategy that led [Shamlodhiya] to
make [the] misinformed decision to forego [a] second degree murder instruction to the jury."
(Petition at 15.) Notably, this second-degree murder instruction argument is phrased slightly
17

differently from the argument addressed by the Illinois Appellate Court in its final opinion on the
merits. The Appellate Court's 2013 opinion affirmed the trial court's dismissal. The trial court had
held that trial counsel was not ineffective under Strickland, but the Appellate court did not discuss
Strickland—instead it held that Attorney Miller's closing argument did not deprive Petitioner of his
right to request a bench trial, as guaranteed by the Illinois Constitution. In the present petition,
however, Petitioner reverts to his claim from the trial-court level; he asserts that his counsel was
ineffective for misleading him, leading to his decision not to request a second-degree murder
instruction at all, and to explicitly confirm that decision to the trial judge. (See Trial Transcript [259] at 966:13–967:1.)
A.

Involuntary Manslaughter Instruction

The state Appellate Court adjudicated Petitioner's involuntary manslaughter argument on
the merits: "we see nothing in counsel's closing argument that would amount to the functional
withdrawal of the involuntary-manslaughter instruction." (2013 Appellate Opinion ¶ 20.) The court
also "note[d] that the manner in which counsel chose to pursue . . . [his argument] . . . was clearly
a matter of trial strategy." (Id. at ¶ 23 (citing People v. Milton, 354 Ill. App. 3d 283, 289, 820
N.E.2d 1074, 290 Ill. Dec. 7 (1st Dist. 2004)); see also id. ("[C]ounsel placed the involuntarymanslaughter instruction before the jury in the way that he believed the jury would be most
receptive to it.").) These conclusions are neither contrary to established law nor based on an
unreasonable determination of facts.
Whether this determination—that there was no functional withdrawal of the involuntary
manslaughter instruction—is a finding of fact or a legal conclusion is debatable. Assuming that
the determination was factual, this court's review would be governed by § 2254(d)(2). See
Wood v. Allen, 558 U.S. 290, 293 (2010) (treating a state court finding that a state postconviction
petitioner's "attorneys' failure to pursue and present mitigating evidence of his borderline mental
retardation was a strategic decision rather than a negligent omission" as a determination of fact,
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and not one of law). As factual determinations, they are entirely reasonable. The Appellate Court
looked directly to the contents of Attorney Miller's closing argument. (2013 Appellate Opinion
¶ 21 ("We do not see where in this argument counsel tells the jury to disregard the involuntarymanslaughter instruction.").) It also considered Miller's testimony from the evidentiary hearing.
(See id. at ¶ 22 (noting that "[Miller] stated that arguing for involuntary manslaughter would have
undermined the credibility of his attempt to secure an acquittal on self-defense . . . . Thus, he
tried to imply that the involuntary-manslaughter instruction came from the trial judge.").) This
court finds nothing unreasonable about those factual findings.
To the extent that the Appellate Court, instead, made legal determinations, those too pass
muster under § 2254(d)(1)'s deferential standard. This court has located no Supreme Court law
suggesting that Attorney Miller's closing argument did, in fact, unconstitutionally withdraw the
involuntary manslaughter instruction. Nor did the Appellate Court's finding that Attorney Miller's
closing argument was a matter of trial strategy constitute an unreasonable application of
Strickland. See Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003) ("[C]ounsel has wide latitude in
deciding how best to represent a client, and deference to counsel's tactical decisions in his closing
presentation is particularly important because of the broad range of legitimate defense strategy
at that stage. Closing arguments should 'sharpen and clarify the issues for resolution by the trier
of fact,' . . . but which issues to sharpen and how to best clarify them are questions with many
reasonable answers.") (quoting Herring v. New York, 422 U.S. 853, 862 (1975)).
Ultimately, whether characterized as determinations of fact or law, neither of the Appellate
Court's determinations regarding the involuntary manslaughter instruction is unreasonable.
B.

Second-Degree Murder Instruction

Next, the court turns to Petitioner's claim that his counsel was ineffective for essentially
misleading him in a way that caused him to forego a second-degree murder instruction. In this
court's view, that claim is not exhausted, given that the Illinois Appellate Court's holding focused
19

on the implications of trial counsel's closing argument on Petitioner's rights under the Illinois
Constitution (see 2013 Appellate Opinion ¶¶ 17–18), while the present Petition focuses solely on
an ineffective assistance of counsel claim. See Snow, 880 F.3d at 864 ("State prisoners must
give the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process.") (quoting O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)). Respondent has not raised the exhaustion issue, however;
in fact, the State oddly concedes that Shamlodhiya exhausted his claims in state court. (See
Answer to Petitioner's Petition for a Writ of Habeas Corpus [22] at 20.) Thus, the court will address
the substance of Petitioner's claim.
It is not clear that any Illinois court directly adjudicated this claim—that counsel was
ineffective in counseling him on a second-degree murder instruction—on the merits. The trial
court's memorandum opinion on the postconviction proceedings solely addressed Petitioner's
involuntary manslaughter claim. (See 2012 Circuit Court Opinion at PageID ## 2628–32.) And,
as explained above, the Illinois Appellate Court primarily addressed whether Attorney Miller's
closing argument violated the Illinois Constitution. The Appellate Court did correctly note that
"[t]he content of closing argument is generally considered a matter of trial strategy," (2013
Appellate Opinion ¶ 15 (citing, inter alia, People v. Milton, 354 Ill. App. 3d 283, 289, 290 Ill. Dec.
7, 820 N.E. 2d 1074 (2004))), and that "it would appear that what defendant is allegedly aggrieved
by is a matter of trial strategy, which would not typically be cognizable as a claim of
ineffectiveness." (Id. (citing People v. Max, 2012 IL App (3d) 110385, ¶ 65, 366 Ill. Dec. 443, 980
N.E. 2d 243).) These comments regarding effectiveness of counsel, however, were only dicta.
Still, this court's de novo review of Petitioner's second-degree murder instruction claim
leads to the same conclusion—counsel's closing statement did not fall below an objective
standard of reasonableness, even if counsel's prior discussions with Petitioner did not forecast
the specific contents of the closing, and even if that lack of knowledge led Petitioner to decide to
20

forego a second-degree murder instruction. The Seventh Circuit has often recognized that
defense attorneys have wide latitude to make strategic decisions in their closing arguments. See,
e.g., Angelini v. Walls, 42 F. App'x 888, 889, 890 (7th Cir. 2002) (finding that defense counsel in
a sexual assault case made a "reasonable strategic decision," when he "asked the jury to remain
objective even though [his client-defendant] looked 'guilty,' 'cold,' 'like he could care less' about
the victims, and 'like a rapist' " in an effort to "gain credibility with the jurors"); Underwood v. Clark,
939 F.2d 473, 474 (7th Cir. 1991) (holding that a lawyer made a reasonable tactical decision when
he acknowledged in closing that "the weight of the evidence" was against his client on one charge,
in order to contrast it with a lack of evidence against his client on a separate charge). And
attorneys are not required to discuss their strategic arguments with clients before closing. See
Underwood, 939 F.2d at 474 (explaining, in a case where the attorney said in closing, "I think the
evidence establishes the commission of that offense" [by his client-defendant], and where the
defendant-Petitioner argued in his habeas petition that he had not consented to that admission of
his guilt, that "a lawyer is not required to consult with his client on tactical moves."). Therefore,
Shamlodhiya's argument here fails.
III.

Reduction of Sentence
Finally, Petitioner asks the court to "reduce first degree murder to second degree murder."

(Petition at 22.) It is not clear whether Shamlodhiya seeks this reduction in his conviction as his
preferred relief, in the event his habeas petition is granted, or if he intends to argue that somehow
the state courts' failure to reduce his sentence constitutes an independent ground for granting his
petition. If it is the former, the court has found that Petitioner's detention does not violate the
Constitution or laws of the United States; thus, there are no grounds for reducing his sentence,
much less for ordering any state court to modify his conviction record. If it is the latter, Petitioner
fails to identify any basis for the court to find that the state courts violated United States law by
refusing to reduce his conviction. In fact, it appears that Shamlodhiya failed to properly raise this
21

argument to a state court, meaning it cannot have been exhausted. As explained by Petitioner,
he asked his appellate counsel on direct review to request a reduction of his sentence, but
"counsel did not do so because 2nd degree murder instruction[s] were not submitted to the jury."
(Petition at 22.) Petitioner further explains that, in postconviction proceedings, he "requested
again Appellate counsel to ask Appellate court to reduce conviction to 2nd-degree murder but
counsel informed me that Appellate court does not entertain these requests in post-convictions."
(Id.) Petitioner tried to circumvent this roadblock by writing directly to the Appellate Court himself
in late 2012, "requesting the court to please reduce my offense to 2nd-degree murder; the court
denied it responding that I have court appointed counsel to plead on my behalf." (Id.) Finally, in
his postconviction appeal to the Illinois Supreme Court, Shamlodhiya requested the Supreme
Court to "reduce 1st-degree murder to 2nd-degree murder." (Attachment to Petition [7-1] at
A112.) The Supreme Court summarily denied Petitioner's PLA. (See 2013 PLA Denial.) Because
it was not properly raised on direct review or in postconviction proceedings, Shamlodhiya's claim
is non-cognizable here.
CONCLUSION
For the foregoing reasons, the court denies Shamlodhiya's petition for a writ of habeas
corpus.

Because Shamlodhiya has not "made a substantial showing of the denial of a

constitutional right," the court declines to grant a certificate of appealability. 28 U.S.C.
§ 2253(c)(2).
ENTER:

Dated: September 4, 2019

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

22