State v. Custer, 298 Neb. 279

Background

On November 3, 2012, Jason Custer shot and killed Adam McCormick; Custer was tried and convicted of first degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person. The Nebraska Supreme Court affirmed on direct appeal.
Custer filed a pro se postconviction motion raising multiple ineffective-assistance claims (trial counsel’s cross-examination and impeachment choices, failure to call a former counsel as a witness, failure to object at critical moments, and alleged defects in jury instructions) and sought appointment of counsel.
The State moved to dismiss without an evidentiary hearing; the district court denied relief without a hearing.
The district court found Custer’s postconviction allegations were largely conclusory or lacked prejudice under Strickland, and that the jury instructions adequately presented the self-defense issue.
The district court also denied appointment of postconviction counsel; the Nebraska Supreme Court affirmed, concluding the petition presented no justiciable issues warranting appointment.

Issues

Issue	Plaintiff's Argument (Custer)	Defendant's Argument (State / District Court)	Held
1) Cross-examination of pathologist Dr. Schilke	Counsel improperly highlighted toxicology comparisons that showed McCormick’s level was below ranges tied to violent behavior, which harmed self-defense theory	Cross-exam elicited testimony that even lower levels can cause violent/irrational behavior — supportive of self-defense; counsel’s performance was reasonable	Denied relief — no deficient performance or prejudice
2) Impeachment / handling of witness Billy Fields	Counsel’s strategy to discredit Fields backfired and caused Custer to alter his testimony; ineffective assistance	Even if strategy was imperfect, testimony about threats/events closer in time to the shooting undermined any claim that earlier knife incident affected fear at shooting; no prejudice shown	Denied relief — no prejudice
3) Cross-examination of Officer Bush about weapons at Leal’s house	Counsel failed to emphasize that Leal’s residence was armed and dangerous, which could support self-defense	Weapons were admitted through testimony and exhibits; Custer didn’t claim concern about those weapons at trial; allegation lacks factual specificity and prejudice	Denied relief — allegation insufficient and not prejudicial
4) Failure to call prior counsel Kelly Breen as witness	Breen could have corroborated that Custer consistently asserted self-defense and that trial counsel pressured him to change testimony	Custer failed to identify specific facts Breen would provide; allegations were conclusory and did not show what testimony would have altered outcome	Denied relief — conclusory, insufficiently pleaded, no prejudice
5) Failure to object to prosecutor’s statements and evidentiary matters	Counsel failed to object to several prosecutorial comments and evidentiary questions (e.g., closing argument analogies, questions about prior convictions, alleged hearsay)	Many comments were proper summations or reasonably drawn inferences; challenged testimony was admissible or harmless; some claims not raised below	Denied relief — no deficient performance or preserved error
6) Jury instructions and verdict form	Counsel failed to secure correct self-defense instruction, omitted manslaughter labeling, used wrong premeditation definition, and failed to provide proper verdict forms	Jury instructions and NJI language properly presented self-defense and elements; instructions allowed acquittal if self-defense found; remaining allegations not raised below	Denied relief — instructions adequate
7) Appointment of postconviction counsel	Court should have appointed counsel because postconviction proceedings are critical	No constitutional right to counsel in state postconviction proceedings; appointment is discretionary and not required where petition is without merit	Denied — no abuse of discretion to refuse appointment

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 affirming convictions)
State v. Gonzales, 294 Neb. 627 (2016) (prosecutor may argue inferences from evidence; personal-opinion line explained)
State v. Miller, 281 Neb. 343 (2011) (issues concerning jury instruction language on self-defense)