Summary
The Nebraska Supreme Court affirmed the denial, without an evidentiary hearing, of Jason William Custer’s motion for postconviction relief. The court rejected or found procedurally unavailable his claims of ineffective assistance of counsel and affirmed the denial of appointed counsel. The opinion discusses the Strickland standard, prosecutorial argument, evidentiary allegations, and Nebraska postconviction procedure.
Topics
Practice areas
Questions Presented
- Whether Custer alleged sufficient facts to establish ineffective assistance of trial counsel warranting postconviction relief or an evidentiary hearing.
- Whether the prosecutor's closing argument and other challenged trial evidence or questioning supported an ineffective-assistance claim.
- Whether the jury instructions adequately addressed self-defense and the charged offenses.
- Whether the appellate court could consider ineffective-assistance allegations not presented in the motion for postconviction relief.
- Whether Custer was constitutionally or statutorily entitled to appointed counsel in the state postconviction proceeding.
Holdings
- A postconviction defendant must allege facts which, if proved, would establish a constitutional violation causing the judgment to be void or voidable. If the motion alleges only conclusions or the record and files affirmatively show no entitlement to relief, the court need not grant an evidentiary hearing.
- To prevail on an ineffective-assistance claim, a defendant must show deficient performance and actual prejudice, meaning a reasonable probability that, but for counsel's deficient performance, the proceeding's result would have been different.
- A prosecutor may present a spirited summation based on reasonable inferences from the evidence and may argue that a defense theory is illogical or unsupported. Comments about the defense theory, a defendant's veracity, or guilt constitute misconduct only when they express the prosecutor's personal beliefs rather than conclusions drawn from the evidence.
- An appellate court will not consider an assignment of error that was not presented to the district court through the defendant's motion for postconviction relief.
- There is no federal or state constitutional right to counsel in state postconviction proceedings, and appointment under the Nebraska Postconviction Act is discretionary. When the claims are procedurally barred or meritless and present no justiciable issue of law or fact, denying appointed counsel is not an abuse of discretion.
Key quotations
“To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.” (285)
“Thus, in cases where a prosecutor comments on the theory of defense, the defendant’s veracity, or the defendant’s guilt, the prosecutor crosses the line into misconduct only if the prosecutor’s comments are expressions of the prosecutor’s personal beliefs rather than a summation of the evidence.” (291)
Factual background
Custer and Billy Fields had ongoing confrontations with Adam McCormick concerning money and exchanged threatening communications. After Custer arranged to meet McCormick for a fight, Custer drove to a gathering where McCormick was present; an incident followed in which Custer shot McCormick twice. Custer was convicted of first degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person, and asserted self-defense in challenging the effectiveness of trial counsel and the jury instructions.
Procedural history
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, and received consecutive sentences. The Nebraska Supreme Court affirmed his convictions and affirmed his sentences as modified on direct appeal. Custer then filed a motion for postconviction relief, a motion to proceed in forma pauperis, and a motion for appointment of counsel; the district court denied postconviction relief without an evidentiary hearing and denied appointment of counsel. The Nebraska Supreme Court affirmed.