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State v. Custer

Supreme Court of Nebraska

December 1, 2017

State of Nebraska, appellee,
v.
Jason William Custer, appellant.

         1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.

         2. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.

         3. Postconviction: Constitutional Law. Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.

         4. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

         5. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

         6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually [298 Neb. 280] prejudiced the defendant's defense. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

         7. Rules of the Supreme Court: Trial: Attorneys at Law. The Nebraska Rules of Professional Conduct set forth that a lawyer shall not, in trial, state a personal opinion as to the credibility of a witness or the guilt or innocence of an accused.

         8. Trial: Prosecuting Attorneys. When a prosecutor's comments rest on reasonably drawn inferences from the evidence, the prosecutor is permitted to present a spirited summation that a defense theory is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State and the defense.

         9. ___: ___. 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.

         10. Trial: Prosecuting Attorneys: Appeal and Error. In assessing whether a prosecutor's statements were misconduct, an appellate court looks at the entire context of the language used to determine whether the prosecutor was expressing a personal opinion or merely submitting to the jury a conclusion that the prosecutor is arguing can be drawn from the evidence.

         11. Postconviction: Appeal and Error. An appellate court will not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief.

         12. Postconviction: Right to Counsel. There is no federal or state constitutional right to an attorney in state postconviction proceedings.

         13. ___: ___. Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed to represent the defendant.

         14. Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error. Where the assigned errors in the postconviction petition before the district court are either procedurally barred or without merit, establishing that the postconviction action contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint appellate counsel for an indigent defendant.

         [298 Neb. 281] Appeal from the District Court for Cheyenne County: Derek C. Weimer, Judge. Affirmed.

          Jason William Custer, pro se.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          HEAVICAN, C.J.

         I. INTRODUCTION

         Jason William Custer appeals from the district court's denial, without an evidentiary hearing, of his motion for post-conviction relief. Custer proceeds pro se in his postconviction motion. We affirm.

         II. BACKGROUND

         The facts of this case can be found in this court's opinion on direct appeal, State v. Custer[1] The following facts from the direct appeal opinion are pertinent to our decision on Custer's postconviction motion.

On or around October 20, 2012, [Adam] McCormick came to the apartment where Custer and [Billy] Fields were staying to collect the money [that Custer owed McCormick]. After Custer told McCormick he would pay him from his next check, Fields, who was upset that McCormick had come to confront Custer, told McCormick that he would pay McCormick by the end of the week. In the following days, McCormick exchanged threatening text messages and telephone calls with Custer and Fields.
On or about October 26, 2012, . . . McCormick confronted [Custer and Fields], demanding his money. Fields testified that when McCormick approached them, it [298 Neb. 282] looked like McCormick was reaching into his pocket for something, and that Fields thought it was a knife that he knew McCormick carried. Custer and Fields told McCormick they could not repay the $150 at that time, but in order to calm McCormick, Fields paid him $40 for another debt he owed. . . .
A few days later, on November 1, 2012, McCormick sent Fields text messages threatening physical violence if the debt was not repaid soon. The text messages prompted Custer to arrange with McCormick to meet in a park for a fight. Custer and Fields went to the park at the arranged time. McCormick did not show up, but he continued to exchange confrontational text messages and telephone calls with Custer and Fields.
The next night, November 2, 2012, [McCormick was at a gathering at Syrus Leal's house]. . . . Throughout the evening, [Fields' girlfriend] updated Custer and Fields through text messages and telephone calls regarding McCormick's activities and whereabouts. Around 11:20 p.m., Custer responded . . . with a text message stating that he and Fields were coming over to handle matters with McCormick.
. . . Around 11:35 p.m., Custer asked McCormick [via text] whether they could "FINISH THIS RIGHT NOW ONE ON ONE." McCormick responded in the affirmative ....
Shortly after midnight on November 3, 2012, [Custer learned that] McCormick was leaving the gathering at Leal's house. Custer borrowed Fields' truck to drive to Leal's house. . . . Thereafter, an incident ensued in which Custer shot McCormick twice.[2]

         Following the shooting, Custer was charged with first degree murder, a Class IA felony; use of a firearm to commit [298 Neb. 283] a felony, a Class IC felony; and possession of a firearm by a prohibited person, a Class ID felony. On January 31, 2014, the jury found Custer guilty on all three counts. The court sentenced Custer to life imprisonment for first degree murder, to 20 to 50 years' imprisonment for use of a firearm to commit a felony, and to 10 to 20 years' imprisonment for being a felon in possession of a firearm. The court ordered that the sentences be served consecutively. Custer appealed his convictions and sentences. This court affirmed Custer's convictions and affirmed his sentences as modified.[3]

         On May 10, 2016, Custer filed a motion for postconvic-tion relief, a motion for permission to proceed in forma pau-peris, and a motion for appointment of counsel. The State filed a motion to dismiss Custer's motion for postconvic-tion relief without conducting an evidentiary hearing, and on November 22, 2016, the district court overruled Custer's motion for postconviction relief without an evidentiary hearing. Custer appeals.

         III. ASSIGNMENTS OF ERROR

         Custer assigns, restated, that the district court erred in denying his motion for postconviction relief, because counsel was ineffective when counsel (1) "illicited testimony from Dr. Peter Schilke on information that was not in evidence [and] information that he was not the originating expert on"; (2) "insisted that a key state witness was testifying falsely to information supported by the record and critical to [Custer's] self-defense defense"; (3) cross-examined a patrol officer; (4) "failed to call rebuttal witness, a fellow law partner, Kelly Breen, to the stand"; (5) "failed to object at critical junctures throughout the entirety of the trial"; and (6) failed to ensure that "the court provided proper jury instructions, or a proper verdict form to all jurors, and omitted critical instruction on self-defense, assault, terroristic threats and other omissions." [298 Neb. 284] Custer also assigns that the district court erred in denying his motion for appointment of counsel.

         IV. STANDARD OF REVIEW

         In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief[4]A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.[5]

         V. ANALYSIS

         On appeal, Custer argues that his trial counsel was ineffective in various particulars and that the district court erred in denying his motion for postconviction relief without a hearing.

         Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.[6]Thus, in a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.[7] If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.[8]

         [298 Neb. 285]1. Ineffective Assistance of Counsel

         To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, [9] the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.[10] To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different.[11] A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.[12]

         (a) Testimony From Dr. Peter Schilke

         Custer argues that the district court erred in denying an evidentiary hearing on the ground that counsel rendered ineffective assistance when cross-examining Dr. Peter Schilke. Schilke was a witness for the State and a pathologist. Schilke performed McCormick's autopsy, during which he ...


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