State v. Custer, 298 Neb. 279

Background

On Nov. 2-3, 2012, following repeated threats and confrontations over a debt, Jason Custer shot and killed Adam McCormick; Custer was charged with first‑degree murder, use of a firearm to commit a felony, and possession of a firearm as a prohibited person.
A jury convicted Custer on all counts; the Nebraska Supreme Court affirmed on direct appeal.
Custer filed a pro se postconviction motion alleging multiple instances of ineffective assistance of trial counsel and sought appointment of counsel; the State moved to dismiss without an evidentiary hearing.
The district court denied the postconviction motion and declined to appoint counsel; Custer appealed the denial without an evidentiary hearing.
The postconviction claims included: counsel’s cross‑examination of the State pathologist (Dr. Schilke), handling of key witness Billy Fields, cross‑exam of Officer Bush, failure to call prior counsel Kelly Breen, failure to object at critical points (including prosecutorial argument and impeachment questions), and alleged defects in jury instructions and verdict forms.
The Supreme Court reviewed de novo whether the motion alleged sufficient facts showing constitutional violations and concluded the postconviction motion failed to allege facts establishing deficient performance or prejudice and affirmed the denial and the refusal to appoint counsel.

Issues

Issue	Custer's Argument	State/District Court Argument	Held
Ineffective assistance — cross‑examination of pathologist (Schilke)	Counsel improperly highlighted that McCormick’s meth level was below ranges associated with violent behavior, undermining self‑defense	Questioning still showed methamphetamine present and supported possible violent/irrational behavior; strategic and not deficient	Court: No deficiency or prejudice; claim fails
Ineffective assistance — handling of witness Billy Fields	Counsel’s attack on Fields’ credibility caused Custer to change his testimony and harmed defense	Even if tactics were poor, alleged prior knife incident was remote and not prejudicial to self‑defense at shooting	Court: No prejudice shown; claim fails
Ineffective assistance — objections, impeachment, and other cross‑examination choices (Officer Bush, Fields’ prior convictions, hearsay)	Counsel failed to highlight weapons at house, should have invoked impeachment rules, and should have objected to hearsay and prosecutorial statements	Record showed jury heard about weapons; counsel’s questioning emphasized nonviolent prior convictions; Fields’ statements about what Custer told him were within personal knowledge; prosecutor’s remarks were permissible inferences	Court: No deficient performance or prejudice; many complaints are unsupported or not raised below
Jury instructions and verdict forms	Counsel failed to secure correct/self‑defense instructions and proper verdict form/options	Jury instructions included self‑defense language and allowed acquittal if element not proved; alleged omissions not specified or were not raised below	Court: Instructions adequate; claim fails
Appointment of counsel on postconviction	Postconviction stage is a critical stage requiring counsel	No constitutional right to counsel in state postconviction; appointment is discretionary and unnecessary where claims are without merit	Court: District court did not abuse discretion in denying appointment

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two‑pronged test for ineffective assistance of counsel)
State v. Custer, 292 Neb. 88 (direct appeal affirming convictions and describing underlying facts)
State v. Watson, 295 Neb. 802 (standards for evaluating postconviction pleadings)
State v. Starks, 294 Neb. 361 (postconviction relief standards and requirement to allege facts supporting constitutional violation)
State v. Miller, 281 Neb. 343 (discussing self‑defense instruction requirements)
State v. Gonzales, 294 Neb. 627 (standards on prosecutorial comment and when remarks cross into personal opinion)