Allan Kustok v. David Mitchell

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2125
A LLAN K USTOK,
Petitioner-Appellant,
v.
DAVID M ITCHELL,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-06932 — Matthew F. Kennelly, Judge.
____________________
A RGUED F EBRUARY 7, 2024 — DECIDED A PRIL 29, 2024
____________________
Before W OOD, LEE, and PRYOR , Circuit Judges.
WOOD, Circuit Judge. In 2014, a Cook County jury con-
victed Allan Kustok of murdering his wife, Anita “Jeannie”
Kustok. Kustok moved for a new trial, arguing that post-trial
evidence cast doubt on an expert witness’s testimony against
him. The state trial court denied Kustok’s motion and sen-
tenced him to 60 years’ imprisonment. Kustok unsuccessfully
challenged the denial of a new trial on direct appeal.

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2 No. 23-2125
Kustok then brought a state postconviction petition based
on a claim of ineffective assistance of trial counsel. He argued
that the jury might not have convicted him if his lawyer had
discovered the exculpatory evidence before trial, and that the
lawyer’s failure to do so amounted to a violation of his Sixth
Amendment right to counsel, as interpreted by Strickland v.
Washington, 466 U.S. 668 (1984). The state postconviction
court, and then the Illinois Appellate Court, determined that
Kustok had waived his Strickland claim by failing to raise it on
direct appeal.
Kustok then brought this federal habeas corpus petition
under 28 U.S.C. § 2254, presenting the same Strickland claim
that the state courts found to be waived. The district court
held that the state-court waiver meant Kustok had procedur-
ally defaulted the claim for federal-court purposes. Finding
that reasonable jurists could find this debatable, however, the
court granted Kustok a certificate of appealability, and he ap-
pealed. We agree that Kustok procedurally defaulted his
claim. Furthermore, we conclude that Kustok does not qualify
for any exception to the procedural-default rules, and so we
affirm the dismissal of his petition.
I
A
On the morning of September 29, 2010, Kustok arrived at
Palos Community Hospital carrying the body of his wife,
Jeannie. Jeannie had been shot in the head 45 to 90 minutes
earlier while she was in the couple’s bed.
According to Kustok, Jeannie woke up in the middle of the
night after hearing a noise in the house. Kustok investigated
and found nothing, but Jeannie brought a revolver to the

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No. 23-2125 3
bedroom for protection against possible intruders. Two hours
later, Kustok heard a gunshot and discovered Jeannie’s body
in the couple’s bed. He initially contemplated suicide, but
then fired the remaining bullets into a dresser to unload the
gun. Knowing that Jeannie was already dead, Kustok lay with
her for a while before attempting to clean the blood off her
body and taking her to the hospital. He claimed that Jeannie
had shot herself, either by accident or to take her own life.
B
The state did not believe Kustok’s story. It charged him
with first-degree murder, and the case went to trial. Over the
course of more than three weeks, the jury heard testimony
from a number of people. The state introduced three wit-
nesses who had spoken to Kustok after the incident; one tes-
tified that Kustok said he was in the bathroom when the gun
went off, while the other two testified that he told them he had
been sleeping in bed and was awoken by the gunshot. The
state also called the manager of the gun store where Kustok
had purchased the revolver three months before Jeannie’s
death, and the manager testified that Kustok said he was buy-
ing the gun for target practice. In addition, the jury heard
from Jeannie and Kustok’s adult daughter Sarah, who testi-
fied that she was not aware of any strife in the marriage and
did not know that her parents owned a gun. Two of Jeannie’s
coworkers, however, said that Jeannie had told them about
the gun. Several witnesses added that Jeannie appeared to be
happy shortly before her death and had made plans for the
future.
Over Kustok’s objection, the court admitted testimony
from five women who claimed to have had extramarital af-
fairs with Kustok, one of whom testified that he told her he

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4 No. 23-2125
planned to get a divorce. The woman with whom Kustok had
the longest affair (five years) testified that although Kustok
never spoke ill of Jeannie, he had said that he did not feel ful-
filled in his marriage.
Because there were no eyewitnesses, much of the trial cen-
tered on a battle of experts. Those experts included three fo-
rensic scientists called by the state; their testimony can be
summarized briefly. The first stated that the revolver had
safety features to prevent accidental discharges; the second
reported finding no gunshot residue on Jeannie’s hands; and
the third said that blood on Kustok’s clothing matched Jean-
nie’s profile, but that she had not found Kustok’s DNA on the
firearm.
The testimony of the next four experts warrants more at-
tention. They focused on two types of stains to determine
where Jeannie, Kustok, and the gun were at the time of the
gunshot. The first was bloodstains. The experts differentiated
between “transfer stains,” which show that an object came
into contact with blood by touching other stained objects, and
“impact spatter,” which indicates that blood splashed onto
the object as a spray coming from a fresh wound. The second
type of stain was soot; some guns expel soot onto nearby sur-
faces when fired, and so experts try to use soot stains to de-
termine where the gun was fired, relative to any stained sur-
faces.
The first of these four witnesses was Dr. Hiliary McElli-
gott, a forensic pathologist. Dr. McElligott testified that, upon
firing, the revolver would have left soot marks up to about six
inches from its barrel. Because she did not find any soot
around Jeannie’s gunshot wound, Dr. McElligott believed
that the gun must have been fired more than six inches from

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No. 23-2125 5
Jeannie’s face. Dr. McElligott found that distance to be incon-
sistent with Kustok’s suicide theory, reasoning that most self-
inflicted gunshot wounds are contact wounds. Her conclu-
sion was bolstered by the path of the bullet: Kustok had
claimed to find the gun in Jeannie’s right hand, which rested
on her chest, but forensic examination showed that the bullet
entered Jeannie’s face on the left side and traveled downward.
Dr. McElligott found it unlikely that Jeannie would have
reached across her body to shoot herself, and she noted that
any recoil from the gun would have pushed her hand further
away from her body rather than onto her chest.
Kustok did not let this testimony go unchallenged. On
cross-examination, Dr. McElligott admitted that she had not
spent much time considering whether Jeannie’s death might
have been an accident. More importantly, Kustok offered the
testimony of his own expert, Matthew Noedel. Noedel testi-
fied that it is not uncommon for the revolver that shot Jeannie
to discharge accidentally; that he believed the gun was fired
three to six inches from Jeannie’s face; and that many self-in-
flicted gunshot wounds are not accompanied by gunshot res-
idue.
That brings us to the heart of Kustok’s Strickland petition:
a stain on a pillowcase. The stain became relevant during the
testimony of the two remaining expert witnesses. The first
was Rod Englert, a retired police officer who testified as the
state’s expert in crime-scene reconstruction and blood-pattern
analysis. The second was Paul Kish, Kustok’s own expert on
blood-pattern analysis.
Using photographs of the bedroom, Englert had at-
tempted to reconstruct the scene of Jeannie’s death, down to
the location of each pillow on the bed. He testified that, based

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6 No. 23-2125
on the blood spatters on the gun and on Kustok’s clothes,
Kustok had been standing above Jeannie when she was shot,
meaning that he could not have been asleep or in the bath-
room at the time. Englert explained that he discounted the
possibility of an accidental discharge because he had not
found any soot on the pillows, which indicated that the gun
was not resting on or under a pillow when it went off.
Enter the pillowcase stain. On cross-examination, Kustok
asked Englert whether a dark spot on one of the pillowcases
might be soot. In his reconstruction, Englert had determined
that the stained pillow was beneath the pillow in which the
bullet was found, meaning that, if Englert’s reconstruction
were correct, it would have been difficult for soot to travel
from the gun to the stained pillow. Englert testified that the
prosecution had asked him about that stain before trial, that
he had inspected it, and that he had concluded that it was “ob-
viously clotted blood,” not soot. He admitted that he had not
recommended testing the stain with sodium rhodizonate, a
five-minute laboratory test that Englert acknowledged is the
standard way to detect soot.
After this testimony (and ten days into the trial), Kustok’s
lawyer asked the court for permission to test the stain on the
pillowcase. The court denied that request, reasoning that
Kustok knew the pillowcase existed and should have asked to
test it before trial.
That did not leave Kustok without a way to challenge Eng-
lert’s testimony. Kustok called Kish to the stand, and Kish tes-
tified that he did not believe there was enough information
accurately to reconstruct the scene of the shooting. He disa-
greed with Englert’s methodology; in his view, the blood
stains were inconclusive. When questioning turned to the

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No. 23-2125 7
stain on the pillowcase, Kish testified that it did not resemble
a bloodstain and that it should have been tested for soot, alt-
hough he admitted that he was aware of the stain before trial
but had not recommended testing it.
C
The jury found Kustok guilty. His first response was to file
a motion for a new trial and to renew his request for permis-
sion to test the stain on the pillowcase. This time the prosecu-
tion did not object to the latter, and the court granted his re-
quest. At the hearing on Kustok’s motion for a new trial,
Kustok introduced the testimony of forensic scientist Nicole
Fundell, who testified that she had tested the pillowcase and
found soot on both its inside and outside. She had also fired
the gun into another pillow at various distances to try to rec-
reate the fatal gunshot, and she found that the most similar
soot patterns appeared when she fired the gun three inches
away from the pillow. Kustok also recalled Noedel, who tes-
tified that, based on the soot stain, Englert’s reconstruction
could not have been accurate.
The trial court opined that the experts’ reconstructions
“cancel each other out” and that, given the soot stain, “[n]o
expert that testified can say how this happened.” It nonethe-
less denied Kustok’s motion for a new trial. It reasoned that
the soot on the pillowcase was not newly discovered evidence
because Kustok could have discovered it before trial with the
exercise of due diligence; that evidence about the soot was cu-
mulative of the defense experts’ testimony contradicting Eng-
lert’s reconstruction; and that other evidence overwhelmingly
supported the jury’s verdict.

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8 No. 23-2125
Kustok appealed on two grounds: that the trial court
should have granted the new trial, and that it erred in admit-
ting testimony about Kustok’s extramarital affairs. The Illi-
nois Appellate Court affirmed, agreeing with the trial court
that the soot stain was not newly discovered evidence. See
People v. Kustok, 2016 IL App (1st) 143812-U (Ill. App. 1st Dist.
2016). The Illinois Supreme Court denied Kustok’s request for
leave to appeal.
D
Shortly after Kustok’s direct appeal, the Supreme Court of
Illinois decided a case that has taken center stage in Kustok’s
collateral challenges to his conviction. That case involved a
defendant convicted of two counts of attempted murder. The
defendant appealed, asserting that his trial lawyer provided
ineffective assistance by stipulating to the admission of key
evidence against the defendant. The Illinois Appellate Court
concluded that the Strickland claim would be better resolved
in a postconviction petition rather than on direct appeal, and
so it dismissed the claim. See People v. Veach, 50 N.E.3d 87, 101
(Ill. App. 4th Dist. 2016) (Veach I). The state supreme court re-
versed, holding that the trial record was sufficient for the ap-
pellate court to resolve the claim on direct appeal. See People
v. Veach, 89 N.E.3d 366, 376 (Ill. 2017) (Veach II). More gener-
ally, Veach II held that when a defendant is able to raise a
Strickland claim on appeal but fails to do so, she waives that
claim for later petitions. Id. at 375.
On December 22, 2017, Kustok filed a state postconviction
petition, arguing for the first time that his trial lawyer pro-
vided constitutionally deficient representation by failing to
test the pillowcase stain before trial. Citing Veach II, the post-
conviction court held that Kustok had waived his Strickland

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No. 23-2125 9
claim by failing to raise it on direct appeal. The postconviction
court also held that even if Kustok had not waived the claim,
the court would dismiss his petition on the merits for failure
to show either deficient performance or prejudice under
Strickland.
Kustok appealed once again. The Illinois Appellate Court
agreed that Kustok had waived his claim, but its reasoning
differed slightly from that of the postconviction court. Alt-
hough it acknowledged that Veach II was not decided until af-
ter Kustok’s direct appeal, it concluded that the rule in Veach II
had long been part of Illinois law. People v. Kustok, 2021 IL App
(1st) 191899-U, ¶ 50. The court also agreed that Kustok’s claim
failed on the merits, but, unlike the postconviction court, it
chose not to reach Strickland’s performance element. It held
only that Kustok could not show prejudice, because the re-
sults of the sodium rhodizonate test were cumulative evi-
dence and even without Englert’s testimony, there was
enough evidence against Kustok to support the jury’s verdict.
Id. ¶¶ 56–59. The state supreme court again declined to hear
Kustok’s case.
That brings us at last to this federal habeas corpus petition,
in which Kustok raises a single claim. He alleges that his trial
lawyer provided ineffective assistance by failing to test the
pillowcase stain before trial—the same claim that the state
courts had found to be waived. The district court disagreed
with the state postconviction court’s characterization of the
test results as cumulative evidence. It believed that the jury
would have found it significant that Englert—who testified at
least 15 times that the stain was not soot—had been mistaken.
The court nonetheless dismissed Kustok’s petition,

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10 No. 23-2125
concluding that he had procedurally defaulted his Strickland
claim by waiving it before the state courts. Kustok has ap-
pealed.
II
The procedural-default doctrine generally prevents fed-
eral courts from hearing “claims that the state court denied
based on an adequate and independent state procedural
rule.” Davila v. Davis, 582 U.S. 521, 527 (2017). To determine
whether Kustok’s Strickland claim is procedurally defaulted,
we first must identify the contours of the state procedural rule
in question. For that, we turn to the Illinois Appellate Court’s
decision dismissing Kustok’s postconviction petition, because
it was the last state court that rendered judgment on Kustok’s
claim. See Lee v. Foster, 750 F.3d 687, 693 (7th Cir. 2014). Citing
Veach II, that decision invoked the following rule: “[W]hen the
facts required to evaluate counsel’s conduct appeared in the
record on appeal, the traditional rules of default appl[y] if the
defendant failed to raise an ineffective assistance claim on di-
rect appeal.” People v. Kustok, 2021 IL App (1st) 191899-U, ¶ 50.
Our task here is only to determine whether that rule is in-
dependent and adequate—not to assess whether the Illinois
court applied the rule correctly. The state court found that
Kustok could have raised his claim on direct appeal, see id.
¶ 49, and that finding is conclusive on us, see Lee, 750 F.3d at
694. (Even if it were otherwise, Kustok has not disputed the
critical proposition that the trial record was sufficient to re-
solve his Strickland claim on direct appeal.)
Illinois’s rule is independent because the Illinois Appellate
Court “actually relied on the procedural bar as an independ-
ent basis for its disposition of the case.” Kaczmarek v. Rednour,

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No. 23-2125 11
627 F.3d 586, 592 (7th Cir. 2010). The court also dismissed the
claim on the merits, but that does not preclude a finding of
independence. See Carey v. Saffold, 536 U.S. 214, 226 (2002).
The harder question is whether the rule was adequate. A
rule is adequate if it is “firmly established and regularly fol-
lowed.” James v. Kentucky, 466 U.S. 341, 348 (1984). That is a
question of federal law that we resolve without deference to
the state court. Malone v. Walls, 538 F.3d 744, 753 (7th Cir.
2008). Kustok argues that the Illinois rule was not firmly es-
tablished at the time of his appeal because it did not exist until
the Illinois Supreme Court’s decision in Veach II, one year after
his direct appeal. If Veach II announced a new rule in 2017, that
rule obviously would not have been clearly established at the
time of Kustok’s direct appeal in 2016.
The problem is that Veach II’s rule was not new—far from
it. As the Illinois Appellate Court pointed out in dismissing
Kustok’s petition, the rule has been around for decades. So far
as we can tell, the Supreme Court of Illinois first applied its
ordinary waiver rule to an ineffectiveness claim in 1968. See
People v. Collins, 39 Ill.2d 286, 289 (1968). It has reaffirmed its
commitment to applying the waiver rule to Strickland claims
time and time again. See, e.g., People v. Owens, 129 Ill.2d 303,
308 (1989); People v. Tate, 980 N.E.2d 1100, 1103 (Ill. 2012). (The
court sometimes has referred to waiver and sometimes to for-
feiture. The distinction makes no difference in this case, and
so we will refer to it as a waiver rule.)
Kustok acknowledges these cases, but he argues that the
rule nonetheless was not regularly followed by the Illinois
Appellate Court. There is some merit to that argument. The
line of appellate cases to which Kustok refers begins with Peo-
ple v. Kunze, where the appellate court said in passing that “a

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12 No. 23-2125
claim of ineffective assistance of counsel is better made in pro-
ceedings on a petition for post-conviction relief.” 193
Ill.App.3d 708, 726 (Ill. App. 4th Dist. 1990). In case after case,
the Illinois Appellate Court seized on this language and cited
it to dismiss Strickland claims on direct appeal, reasoning that
the trial record was rarely sufficient to resolve such claims and
that they were therefore better left to postconviction petitions.
See Veach I, 50 N.E.3d at 96 (collecting cases).
The post-Kunze line of cases culminated in Veach I, where
the appellate court reiterated its approach of postponing con-
sideration of Strickland claims to postconviction petitions. Id.
at 98. But the Illinois Supreme Court quickly pushed back in
Veach II and repeated what it had been saying for decades: “in
Illinois, a defendant must generally raise a constitutional
claim alleging ineffective assistance of counsel on direct re-
view or risk forfeiting the claim.” 89 N.E.3d at 375.
Although we recognize that the Illinois Appellate Court
had been inconsistent in its adherence to the Illinois Supreme
Court’s waiver rule, there are two reasons why the appellate
court’s cases do not help Kustok. The first is our precedent.
Despite the Illinois Appellate Court’s approach to Illinois’s
waiver rule for Strickland claims, we have found that rule to
be adequate. We held as much both before Veach I, see Stur-
geon v. Chandler, 552 F.3d 604, 611 (7th Cir. 2009), and after
Veach II, see Mata v. Baker, 74 F.4th 480, 486–87 (7th Cir. 2023).
Kustok resists this precedent by arguing that the narrow
window of time between Veach I and Veach II was different—
in other words, that Veach I so strongly disapproved of resolv-
ing Strickland claims on direct appeal that it made the waiver
rule inadequate. We note a potential timing issue with this ar-
gument: Kustok filed the opening brief in his direct appeal

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No. 23-2125 13
months before the Illinois Appellate Court handed down
Veach I, and so it is hard to see how Veach I affected his decision
not to include a Strickland claim in that brief. But even putting
that aside, we reject Kustok’s premise. Veach I did not do any-
thing that dozens of prior appellate decisions had not already
done. Even Veach I recognized that it was simply repeating
what had long been the appellate court’s approach to the
waiver rule. See 50 N.E.3d at 96 (“The Illinois Appellate
Courts have widely followed the Kunze doctrine.”).
The second reason for finding that the Illinois Appellate
Court’s practice did not render the Illinois Supreme Court’s
rule inadequate is the interplay between the two. The appel-
late court summarized its approach as follows in Veach I:
[T]he prudent and judicious course for an ap-
pellate court dealing with a defendant’s claim of
ineffective assistance of counsel on direct appeal
is almost always to (1) decline to address the is-
sue (while explaining its reason for doing so),
(2) affirm the trial court’s judgment, and (3) in-
dicate that the defendant may raise the ineffec-
tive-assistance-of-counsel claim in a postconvic-
tion petition.
Id. at 98.
The Kunze line of cases thus set forth the court’s practice
of refusing to hear Strickland claims on direct appeal and tell-
ing appellants to bring such claims in a postconviction peti-
tion. But nothing in this practice conflicts with the waiver rule.
It does not forbid litigants from raising Strickland claims on di-
rect appeal. We find it telling that dozens of appellants did
exactly that in the cases cited by Veach I, as well as in Veach I

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14 No. 23-2125
itself. Those appellants may have expected that the court
would simply dismiss their claims, but they chose to raise the
claims anyway, lest the court later find that they had waived
them—as it sometimes did. See, e.g., People v. Gale, 876 N.E.2d
171, 178 (Ill. App. 1st Dist. 2007). Nothing in the appellate
court’s approach to Strickland claims prevented Kustok from
doing the same.
To sum up, decades of consistent precedent from Illinois’s
highest court required Kustok to raise his Strickland claim on
direct appeal. Because he failed to do so, he waived that claim
for purposes of his state postconviction petitions and accord-
ingly procedurally defaulted his claim for purposes of this ha-
beas corpus petition.
III
Our analysis does not end there. In the case of state pris-
oners seeking a federal writ of habeas corpus, the procedural-
default doctrine arises from principles of comity and federal-
ism, not from a limit on the jurisdiction of federal courts. See
Coleman v. Thompson, 501 U.S. 722, 730 (1991). That rationale
leads to two exceptions. A federal court may hear a procedur-
ally defaulted claim if “the prisoner can [(1)] demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or [(2)] demonstrate that fail-
ure to consider the claims will result in a fundamental miscar-
riage of justice.” Id. at 750. Kustok argued only for the second
exception, but the district court found no miscarriage of jus-
tice. Kustok has not challenged that conclusion; instead, he
has turned on appeal to the cause-and-prejudice exception.
This skirts closely to forfeiture, if not waiver, depending on
how specifically he needed to preserve his argument. But, as

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No. 23-2125 15
we now explain, he has not established actual prejudice, and
that is enough to resolve this appeal.
Petitioners satisfy their burden of establishing actual prej-
udice if they show “not merely a substantial federal claim,
such that the errors at trial created a possibility of prejudice,
but rather that the constitutional violation worked to [their]
actual and substantial disadvantage.” Shinn v. Ramirez, 596
U.S. 366, 379–80 (2022) (cleaned up) (emphasis in original).
The parties assume that the analysis for actual prejudice
largely mirrors the analysis for the underlying Strickland
claim—that is, that if Kustok’s underlying Strickland claim
had merit, then procedurally defaulting that claim substan-
tially disadvantaged him. Under Strickland’s familiar two-part
test, Kustok would have to show that (1) his counsel’s perfor-
mance was so deficient as to deny him the counsel guaranteed
by the Sixth Amendment and (2) that deficient performance
denied him the right to a fair trial. 466 U.S. at 687. Further,
because the Illinois Appellate Court rejected Kustok’s claim
on the merits, we would have to find that its decision “was
contrary to[] or involved an unreasonable application of”
Strickland to grant him relief. See 28 U.S.C. § 2254(d)(1). (We
would not defer to the state court on the first part of Strickland,
however, because the last state court to reject Kustok’s claim
did not reach the question whether his counsel was deficient.
See Thomas v. Clements, 789 F.3d 760, 767 (7th Cir. 2015).)
To satisfy Strickland’s prejudice requirement, Kustok
would have to show that, had his attorney tested the pillow-
case stain before trial, the likelihood that the jury would not
have convicted him was “substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 111 (2011). This burden is
hard to meet, especially when we consider the

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16 No. 23-2125
“overwhelming record support” for the verdict, Strickland,
466 U.S. at 696, layered on top of the deference we owe to the
state court.
We conclude that Kustok has failed to meet that burden,
even if we discount Englert’s testimony entirely. The trial
lasted over three weeks; Englert’s testimony spanned two and
a half of those days, and most of that time was occupied by
Kustok’s cross-examination. During the rest of the trial the
state introduced, as the Illinois Appellate Court put it, “myr-
iad additional evidence” that supports the jury’s verdict. We
summarize that evidence below.
Before the shooting. Kustok was having extramarital affairs,
which increased in frequency before Jeannie’s death and dur-
ing which he reported unhappiness with his marriage and
plans to divorce. When he bought the gun that killed Jeannie,
he told the seller that he planned to use it for target practice.
Despite Kustok’s claim that the couple sometimes brought the
gun to bed for protection, their adult daughter, who some-
times slept in bed with Jeannie, was not aware that the couple
had a gun. Shortly before her death, Jeannie seemed happy
and had scheduled appointments and social events beyond
the date of her death, making suicide less plausible.
The shooting itself. The bullet entered Jeannie’s face on the
left side and traveled downward. Yet Kustok claimed that he
had found the gun in Jeannie’s right hand, as it rested on her
chest. Dr. McElligott testified that it would have been difficult
for a right-handed person such as Jeannie to shoot herself in
that way, and that any recoil from the gun would have pushed
Jeannie’s hand away from her chest, not toward it. Further,
Jeannie’s hands tested negative for gunshot residue, while
Kustok’s left hand tested positive. According to Dr.

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No. 23-2125 17
McElligott, the lack of soot near the wound indicated that the
gun was fired at least six inches away from Jeannie’s face,
which is rare for self-inflicted gunshot wounds.
After the shooting. Rather than immediately seeking help,
Kustok stayed with Jeannie’s body for at least 45 minutes after
her death. During that time, he stacked bloody pillows on the
floor, took the sheets off the bed, and wiped down areas of the
bedroom with towels. All of these steps made it harder to de-
duce what had happened in the room. And when Kustok fi-
nally took Jeannie to the hospital, he told a nurse that he had
been in the bathroom when the gun went off, but then told a
police officer that he had been asleep in bed at the time. He
also claimed that his glasses were in the bathroom when Jean-
nie was shot, but the glasses were stained with blood, and a
DNA test showed that the blood contained a major female
profile from which Jeannie could not be excluded.
That is not to say that Kustok did not present exculpatory
evidence, but that evidence was not particularly powerful.
Two of Jeannie’s coworkers testified that Jeannie had told her
about the couple’s gun; Sarah testified that Jeannie often wor-
ried about home intrusions; and Noedel testified that the gun
may have been fired fewer than six inches from Jeannie’s face
and that it is not uncommon for that type of gun to discharge
accidentally. All told, the state court reasonably concluded
that it is not substantially likely that the jury would have re-
turned a different verdict if Kustok’s lawyer had introduced
evidence about the pillowcase soot-stain at trial. That omis-
sion therefore did not infect Kustok’s “entire trial with error
of constitutional dimensions,” United States v. Frady, 456 U.S.
152, 170 (1982), and so he has not shown actual prejudice from
procedurally defaulting his claim.

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18 No. 23-2125
IV
We AFFIRM the district court’s dismissal of Kustok’s peti-
tion for a writ of habeas corpus.

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