State v. Custer, 298 Neb. 279

Background

In November 2012, Jason Custer shot and killed Adam McCormick after prior threats and arranged confrontations; Custer was charged with first-degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person.
A jury convicted Custer on all counts in January 2014; this court affirmed on direct appeal in State v. Custer.
Custer filed a pro se postconviction motion alleging numerous instances of ineffective assistance of trial counsel (cross-examination tactics, failure to call or object to witnesses, jury instructions, and prosecutorial misconduct) and sought appointment of counsel.
The district court denied the motion without an evidentiary hearing; Custer appealed that denial and the denial of appointed counsel.
The Nebraska Supreme Court reviewed de novo whether the postconviction motion alleged sufficient facts demonstrating constitutional violations or whether the record affirmatively showed no relief was due.

Issues

Issue	Plaintiff's Argument (Custer)	Defendant's Argument (State/District Court)	Held
Ineffective assistance for cross-examining pathologist Schilke	Counsel improperly highlighted that McCormick’s meth level was below reported violent ranges, hurting self-defense theory	The testimony showed methamphetamine was present and could cause violence even at lower levels, supporting self-defense	No deficient performance; no relief
Ineffective assistance in attacking State witness Fields (credibility)	Counsel’s impeachment of Fields led Custer to alter his testimony and prejudiced defense	Even if deficient, any error was not prejudicial because prior events (night-of threats/confrontation) controlled jury’s perception of danger	No prejudice shown; claim fails
Failure to call or emphasize witnesses/evidence (Breen, Officer Bush, weapons at house)	Counsel failed to call Breen who allegedly would corroborate Custer’s original statements and did not highlight weapons at Leal’s house	Allegations lacked factual specificity about what testimony would have been; the record already showed weapons; no prejudice alleged	Insufficient factual allegation and no prejudice; claim fails
Jury instructions and verdict form errors	Counsel failed to secure proper self-defense instruction/option, omitted or misstated instructions and verdict forms	Jury instructions did include self-defense language and the NJI language; no specific alternative wording shown; other alleged instruction errors not raised below	Jury adequately instructed on self-defense; no relief warranted
Prosecutorial misconduct and failure to object	Prosecutor made comments (preparation time, Santa Claus analogy) that were personal, and counsel should have objected	Comments were permissible inferences from evidence, not improper expressions of personal belief; some issues already decided on direct appeal	No prosecutorial misconduct requiring relief; counsel not ineffective for failing to object
Appointment of postconviction counsel	Postconviction proceedings are a critical stage requiring counsel	No constitutional right to counsel in state postconviction; appointment is discretionary and not required where claims are procedurally barred or without merit	Denial of appointment not an abuse of discretion

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (established deficient performance and prejudice test for ineffective assistance of counsel)
State v. Custer, 292 Neb. 88 (direct appeal opinion describing facts and rejecting claims addressed on direct appeal)
State v. Gonzales, 294 Neb. 627 (permitted prosecutors to argue inferences and reject defense theories absent personal-belief misconduct)
State v. Miller, 281 Neb. 343 (criminal instruction guidance referenced by defendant)
State v. Watson, 295 Neb. 802 (standards for reviewing sufficiency of postconviction allegations)