State v. Custer, 298 Neb. 279

Background

On November 2–3, 2012, Jason Custer shot and killed Adam McCormick after a series of confrontations and threatening communications; Custer was indicted for 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 on January 31, 2014; he received life plus consecutive prison terms. This court affirmed on direct appeal.
On May 10, 2016, Custer (pro se) filed a postconviction motion alleging numerous instances of ineffective assistance of trial counsel and seeking appointment of counsel and an evidentiary hearing.
The State moved to dismiss without an evidentiary hearing; the district court denied postconviction relief and refused to appoint counsel. Custer appealed the denial.
The district court and the Nebraska Supreme Court reviewed whether Custer’s motion alleged sufficient facts to show constitutional violations (Strickland prejudice and deficient performance) or otherwise warranted a hearing.

Issues

Issue	Plaintiff's Argument (Custer)	Defendant's Argument (State / Court)	Held
Ineffective assistance — cross-examination of pathologist Schilke	Counsel improperly elicited evidence about methamphetamine effects and highlighted that McCormick’s level was below cited violent ranges, harming defense	Schilke’s testimony that lower levels can still produce violent behavior supported Custer’s self-defense theory; counsel’s questioning was reasonable	Not deficient; no merit to claim
Ineffective assistance — impeachment / cross of key witnesses (Fields, Officer Bush)	Counsel mishandled impeachment of Fields, which led to inconsistent testimony; failed to emphasize weapons at Leal’s house via Officer Bush	Record shows impeachment attempts and testimony about weapons; Custer didn’t show how alternate approaches would change outcome	No prejudice shown; claim fails
Ineffective assistance — failure to call/rely on prior counsel Breen and failure to object to various trial matters (prosecutor remarks, prior convictions, hearsay)	Breen would have corroborated original self-defense story and testified Custer changed testimony due to bad advice; counsel failed to object to prosecutorial misconduct and improper testimony	Allegations are conclusory; many issues were addressed on direct appeal or are either within permissible prosecutorial argument or factually supported; defendant’s prior convictions were admitted by Custer as well	Allegations lack factual specificity and do not show prejudice; no relief
Jury instructions and appointment of postconviction counsel	Counsel failed to secure proper self-defense instructions and verdict forms; district court erred by denying appointment of counsel	Jury instructions informed jury of self-defense option and used approved NJI language; no constitutional right to counsel in state postconviction and court may deny appointment when claims lack merit	Instructions adequate; denial of appointment not an abuse of discretion; postconviction motion denied

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance: deficient performance and prejudice)
State v. Custer, 292 Neb. 88 (2015) (direct-appeal opinion describing facts and rejecting related prosecutorial-misconduct claims)
State v. Gonzales, 294 Neb. 627 (2016) (standard for assessing whether prosecutor’s comments express personal belief or are permissible inferences from evidence)
State v. Miller, 281 Neb. 343 (2011) (issues regarding self-defense jury instructions)
State v. Watson, 295 Neb. 802 (2017) (postconviction pleading standard and review)
State v. Silvers, 255 Neb. 702 (1998) (discretion to deny appointment of counsel in postconviction when petition contains no justiciable issue)