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Custer v. Frakes

United States District Court, D. Nebraska

October 1, 2018

JASON WILLIAM CUSTER, Petitioner,
v.
SCOTT FRAKES, Director, NE Dept. of Corrections; and BRAD HANSEN, Warden, Tecumseh State Correctional Institution; Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on preliminary review of Petitioner Jason William Custer's Petition for Writ of Habeas Corpus (filing no. 1) brought pursuant to 28 U.S.C. § 2254. The purpose of this review is to determine whether Petitioner's claims, when liberally construed, are potentially cognizable in federal court. Condensed and summarized for clarity, Petitioner's claims[1] are:

         Claim One: Petitioner was denied effective assistance of counsel because trial counsel (1) elicited testimony from Dr. Peter Schilke regarding information in a report authored by a different expert (Filing No. 1 at CM/ECF pp. 17, 19); (2) failed to object to the foundation of Dr. Schilke's testimony (id.); (3) failed to call Dr. Eischenschmidt to testify regarding the toxicology report he authored (id.); (4) failed to provide proper jury instructions on self-defense, assault, and terroristic threats (id. at CM/ECF pp. 3, 17); (5) failed to object to prosecutorial misconduct and/or ask for a mistrial (id. at CM/ECF pp. 17, 26-27); (6) insisted that a key state's witness, Billy Fields, was testifying falsely to information supported by the record and critical to Petitioner's self-defense claim (id. at CM/ECF pp. 18, 32); and (7) refused to call trial counsel's law partner, Kelly Breen, as a witness to testify about prior consistent statements made by Petitioner shortly after he was arrested and appointed counsel (id.).

         Claim Two: Petitioner was denied the effective assistance of counsel because appellate counsel failed to raise on direct appeal the claims described in Claim One, subparts (1) through (3) and (5) through (7). (Id. at CM/ECF pp. 17-19, 27, 32.)

         Claim Three: Petitioner was denied the effective assistance of counsel because the cumulative instances of ineffective assistance of trial and appellate counsel create the reasonable probability of a different outcome at either the trial and/or direct appeal level. (Id. at CM/ECF p. 20.)

         Claim Four: Petitioner was denied his rights to due process and a fair trial because (1) the evidence adduced at trial was insufficient to sustain a conviction for First Degree Murder, because a rational trier of fact could not have concluded that Petitioner killed Adam McCormick purposely, with deliberate and premediated malice, and not in self-defense (id. at CM/ECF pp. 17, 21); and (2) the trial court erroneously instructed the jury (id. at CM/ECF pp. 2, 17, 28).

         Claim Five: Petitioner was denied due process because the State committed prosecutorial misconduct by (1) arguing his post-arrest silence, (2) introducing inflammatory, religious-themed arguments and testimony into the trial, and (3) “brow-beating” Petitioner with questions already asked and answered. (Id. at CM/ECF pp. 17, 26.)

         Claim Six: Petitioner was denied his rights to due process and to counsel because the state district court and the Nebraska Supreme Court erred in failing to appoint counsel for Petitioner in his state postconviction proceedings and in his appeal of the denial of his motion for postconviction relief without an evidentiary hearing. (Id. at CM/ECF pp. 18, 36.)

         With the exception of Claim Six, the court determines that Petitioner's claims, when liberally construed, are potentially cognizable in federal court. However, the court cautions Petitioner that no determination has been made regarding the merits of these claims or any defenses to them or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought. Claim Six is not a cognizable habeas corpus claim because it is based on errors in the state postconviction proceedings. Errors during state postconviction review are not cognizable in a federal habeas corpus action. See Jenkins v. Houston, 4:05CV3099, 2006 WL 126632 (D. Neb. 2006) (collecting cases). Claim Six is dismissed.

         IT IS THEREFORE ORDERED that:

         1. Upon initial review of the habeas corpus petition (filing no. 1), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court with the exception of Claim Six. Claim Six is dismissed.

         2. By November 15, 2018, Respondents must file a motion for summary judgment or state court records in support of an answer. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: November 15, 2018: deadline for Respondents to file state court records in support of answer or motion for summary judgment.

         3. If Respondents elect to file a motion for summary judgment, the following procedures must be followed by Respondents and Petitioner:

A. The motion for summary judgment must be accompanied by a separate brief, submitted at the ...

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