Post-Conviction Petition-Ineffective Assistance of Counsel

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7^th Circuit Court of Appeals

Case Name: Allan Kustok v. David Mitchell

Case No.: 23-2125

Officials: Wood, Lee, and Pryor, Circuit Judges.

Focus: Post-Conviction Petition-Ineffective Assistance of Counsel

In 2014, Allan Kustok was convicted of the murder of his wife, Anita “Jeannie” Kustok. Kustok asserted that his wife had either accidentally shot herself or taken her own life. However, the prosecution contended that Kustok had fatally shot his wife, presenting evidence of his extramarital affairs, his acquisition of the gun used in the shooting, and inconsistencies in his version of events. Despite his claims, Kustok was convicted, and subsequent attempts to secure a new trial were unsuccessful.

Seeking recourse, Kustok filed a state post-conviction petition, alleging that his trial counsel’s failure to uncover exculpatory evidence constituted ineffective assistance. State courts, however, ruled that Kustok had forfeited this argument by not raising it during his initial appeal. Undeterred, Kustok pursued a federal habeas corpus petition, essentially restating his prior claim. Yet, the district court determined that Kustok’s state-court waiver amounted to a procedural default for federal-court purposes.

The Seventh Circuit concurred, affirming the procedural default of Kustok’s claim. The court also found that Kustok didn’t qualify for any exceptions to the procedural-default rules. Consequently, his petition was dismissed. Even if Kustok’s attorney had presented evidence regarding a specific soot stain during the trial, the court determined it wouldn’t have significantly impacted the jury’s verdict.

Affirmed.

Decided 04/29/24

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