State v. Custer, 298 Neb. 279

In 2012 Jason Custer shot and killed Adam McCormick; Custer was tried, convicted of first-degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person; sentences were imposed and affirmed on direct appeal.
Custer filed a pro se postconviction motion alleging numerous instances of trial counsel ineffectiveness (cross-examination strategy, failure to call a prior lawyer as witness, failure to object at critical points, and defective jury instructions) and requested appointment of counsel.
The State moved to dismiss without an evidentiary hearing; the district court denied relief without a hearing, and denied appointment of counsel; Custer appealed.
The district court and the Supreme Court evaluated whether Custer’s postconviction motion pleaded facts (not mere conclusions) that, if true, would demonstrate constitutional error or Strickland prejudice.
The Supreme Court reviewed de novo, found the motion insufficient in law or fact to require a hearing, rejected each ineffective-assistance claim on deficiency or prejudice grounds, and held denial of appointed counsel was not an abuse of discretion.

Issue	Custer's Argument	State's Argument	Held
Whether trial counsel was ineffective for cross-examining pathologist re: methamphetamine levels	Cross-examination highlighted that McCormick’s level was below ranges linked to violent behavior and harmed self-defense theory	Testimony still supported that even lower levels can cause violence; it aided self-defense theory	No deficiency; no relief
Whether counsel’s impeachment of witness Fields and related questioning prejudiced Custer	Counsel’s attack on Fields’ credibility caused Custer to change testimony and harmed defense	Prior threats/events the night of shooting remained primary; any questioning of prior knife incident was not prejudicial	No prejudice shown; claim fails
Failure to call prior appointed lawyer (Breen) as rebuttal witness	Breen would corroborate Custer’s consistent self-defense story and show counsel’s improper advice changed testimony	Custer failed to allege what Breen would have testified to beyond conclusory assertions	Allegation is conclusory; no sufficient facts alleged
Whether counsel erred in failing to object to prosecutor’s closing, other trial questioning, and jury instructions	Multiple failures to object and defective/omitted jury instructions denied a fair trial	Prosecutor’s remarks were reasonable inferences; instructions adequately presented self-defense; many issues unpleaded or without prejudice	No ineffective assistance or instructional error; postconviction motion insufficient

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
State v. Custer, 292 Neb. 88 (direct-appeal opinion summarizing trial facts and prior review)
State v. Watson, 295 Neb. 802 (postconviction pleading/hearing standards)
State v. Starks, 294 Neb. 361 (postconviction pleading requirement for constitutional claims)
State v. Phelps, 286 Neb. 89 (no hearing required where records show no relief)
State v. Gonzales, 294 Neb. 627 (limits on prosecutor argument and review of context)
State v. Miller, 281 Neb. 343 (self-defense instruction principles)
State v. McGhee, 280 Neb. 558 (no constitutional right to counsel in state postconviction proceedings)
State v. Silvers, 255 Neb. 702 (trial court discretion on appointment of counsel in postconviction proceedings)