United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
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
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
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.)
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.
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).
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,
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.
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.
THEREFORE ORDERED that:
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
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.
Respondents elect to file a motion for summary judgment, the
following procedures must be followed by Respondents and
A. The motion for summary judgment must be accompanied by a
separate brief, submitted at the ...