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United States ex rel. Shamlodhiya v. Akpore

United States District Court, N.D. Illinois, Eastern Division

September 4, 2019

United States of America ex rel. ASHWANI SHAMLODHIYA, R41722, Petitioner,
KEVWE AKPORE, Warden, Hill Correctional Center, Respondent.



         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 self-defense.

         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.


         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]

         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 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. 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 cross-examination 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 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 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. . . . ...

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