State v. Custer, 903 N.W.2d 911

Defendant Jason Custer was convicted by a jury of first-degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person for the fatal shooting of Adam McCormick; convictions and sentences were affirmed on direct appeal.
Postconviction, Custer (pro se) filed a motion raising multiple ineffective-assistance claims about trial counsel’s cross-examinations, failure to call or use witnesses (including former counsel Kelly Breen), failure to object at key moments, and alleged defects in jury instructions; he also sought appointment of counsel.
The district court dismissed the postconviction motion without an evidentiary hearing; Custer appealed that denial.
The court reviewed whether Custer’s motion alleged sufficient facts that, if proved, would show constitutional violations rendering the judgment void or voidable and whether Custer established Strickland prejudice.
The court concluded the motion largely presented conclusions or nonprejudicial tactical choices; where evidence contradicted Custer’s claims the record refuted relief; therefore no hearing was required and appointment of postconviction counsel was not warranted.

Issue	Custer's Argument	State's Argument	Held
Ineffective assistance — cross-exam of pathologist (Dr. Schilke)	Counsel improperly elicited comparative methamphetamine-level evidence that hurt defense	Testimony supported that even lower meth levels can cause violent behavior, aiding self-defense theory	No deficiency or prejudice; claim denied
Ineffective assistance — handling of witness Fields (credibility and testimony)	Counsel’s attack on Fields led Custer to change testimony and prejudiced defense	Any alleged deficiency did not prejudice outcome; knife incident days earlier irrelevant to shooting conduct	No prejudice shown; claim denied
Jury instructions and verdict form	Counsel failed to deliver proper self-defense instructions, verdict form options, and correct definitions (premeditation, manslaughter)	Jury was adequately instructed on self-defense; instruction language followed NJI2d and applicable standards	Instructions sufficient; no prejudice; claim denied
Appointment of counsel for postconviction proceedings	Postconviction is a critical stage; counsel should have been appointed	No constitutional right to appointed counsel in state postconviction; court has discretion; claims lacked merit	Denial of appointment not an abuse of discretion; claim denied

Strickland v. Washington, 466 U.S. 668 (establishes the two-prong ineffective-assistance test)
State v. Custer, 292 Neb. 88 (2015) (direct-appeal opinion recited trial facts and issues)
State v. Watson, 295 Neb. 802 (2017) (standard for postconviction hearings and pleading requirements)
State v. Starks, 294 Neb. 361 (2016) (postconviction pleading must allege facts showing constitutional violation)
State v. Phelps, 286 Neb. 89 (2013) (no hearing required where records show no relief)
State v. Gonzales, 294 Neb. 627 (2016) (limits on prosecutor argument and when comments cross line into personal opinion)
State v. Miller, 281 Neb. 343 (2011) (instructional standards referenced by defendant)