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State of Nebraska, appellee, v. 

Jason William Custer, appellant.

___ N.W.2d ___

Filed December 1, 2017. No. S-16-1196.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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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.
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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 postconviction 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 

1 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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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 

2 Id. at 92-94, 871 N.W.2d at 250-52.
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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 postconviction relief, a motion for permission to proceed in forma pauperis, and a motion for appointment of counsel. The State 

filed a motion to dismiss Custer’s motion for postconviction 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.” 

3 See State v. Custer, supra note 1.
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Custer also assigns that the district court erred in denying his 

motion for appointment of counsel.

IV. STANDARD OF REVIEW

[1,2] 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.

[3-5] 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

4 State v. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017).

5 State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016).

6 Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).

7 State v. Starks, supra note 5.

8 State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).
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1. Ineffective Assistance

of Counsel

[6] 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 obtained 

fluids for a toxicology panel. Those samples were sent to a 

toxicologist for testing.

Custer takes issue with the following question posed by 

counsel during cross-examination of Schilke:

Q. . . . [I]n [the toxicologist’s] findings, he said that 

blood levels of 200 ng to 600 ng had been reported 

in methamphetamine abusers who exhibited violent and 

irrational behavior. Now I realize [McCormick’s] level 

9 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

10 State v. Watson, supra note 4.

11 Id.

12 Id.
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wasn’t as high as 200 to 600 but what I guess I am asking 

you is it, in your experience that methamphetamine users 

can exhibit violent and irrational behavior?

A. Sure, that has been reported.

Custer argues that counsel erred in drawing the jury’s attention 

to the fact that the level of methamphetamine in McCormick’s 

system was lower than levels that had reportedly caused “violent and irrational behavior.”

Custer relied on a theory of self-defense at trial. The testimony elicited by counsel demonstrated that McCormick had 

levels of methamphetamine in his system. Schilke’s testimony 

supported the conclusion that levels did not have to be as 

high as “200 ng to 600 ng” in order to cause “methamphetamine users [to] exhibit violent and irrational behavior.” That 

McCormick could have been violent and irrational despite 

the relatively low level of methamphetamine in his system 

was entirely consistent with, and helpful to, Custer’s claim of 

self-defense.

We agree with the district court that counsel’s performance 

was not deficient and therefore find no merit to this assignment 

of error.

(b) Cross-Examination 

of Billy Fields

Custer argues that counsel was ineffective in advising him 

to discredit Billy Fields’ testimony, which Custer claims ultimately led Custer to change Custer’s testimony.

Custer testified that a few days before the shooting, 

McCormick came to an apartment in which Custer was staying 

and demanded that Custer repay the money that McCormick 

had loaned him. Custer testified that during this exchange, 

neither he nor McCormick threatened each other with a knife.

At trial, however, Fields testified on cross-examination that 

while Fields did not see anything, Custer told him after the 

exchange that “he had pulled a knife on [McCormick] and that 

[McCormick] had pulled one back.” On cross-examination, 
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Fields initially claimed that he had explained this account in 

his deposition, but when pressed by Custer’s counsel, Fields 

was unable to find this testimony in the transcript of that 

deposition. Counsel then asked Fields: “[I]t’s safe to say the 

first time you ever said that was yesterday in court, correct?” 

Fields agreed. But on redirect, the State presented Fields with 

his deposition and requested that he read certain lines the 

State had identified in which Fields had stated that Custer 

and McCormick pulled knives on each other. In addition, 

Custer’s testimony at trial of the same incident contradicted 

Fields’ testimony.

Assuming that counsel was ineffective in his attempt to 

attack Fields’ credibility, Custer has not shown that he was 

prejudiced. The incident in which McCormick allegedly pulled 

a knife on Custer occurred several days before the shooting 

and did not provide a basis for the jury to find, as Custer 

contends, that Custer feared for his life at the time of the 

shooting. Indeed, evidence at trial showed that Custer and 

McCormick had exchanged threats the night of the shooting, 

at which point Custer drove over to Syrus Leal’s house, where 

he knew McCormick was, to confront McCormick. Therefore, 

even if counsel was deficient in this line of questioning, 

Custer has not shown that he was prejudiced by counsel’s performance. There is no merit to Custer’s assertion that counsel 

was ineffective.

(c) Cross-Examination of 

Officer James Bush

Custer argues that counsel was ineffective for failing to 

“highlight” critical facts on the cross-examination of Officer 

James Bush about the collection of guns and drug paraphernalia found at Leal’s house.13 Custer contends that “[c]ritical to 

[his] self-defense claim was a general knowledge as to [Leal’s] 

being an armed ex-felon” and that counsel “squandered an 

13 Brief for appellant at 18.
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opportunity to show the seriousness of the envir[on]ment at 

[Leal’s] house.” Custer also argues that Leal could have given 

McCormick a weapon at the time of the incident which resulted 

in McCormick’s death.

Bush, the State’s witness, was a patrol officer for the city of 

Sidney, Nebraska. Bush testified that exhibits 86 through 90 

contained photographs of the firearms and drug paraphernalia 

found in Leal’s house. Bush further testified that “the firearms 

were located in the southwest bedroom closet.” In addition, 

Fields also testified that there were at least four weapons at 

Leal’s house. Custer testified in his defense, but did not mention in his testimony any concern he had about the weapons in 

Leal’s house at the time of the shooting.

We find Custer’s allegation to be without merit. Custer’s 

motion does not explain what he believes counsel should have 

done to further emphasize this evidence. As such, Custer has 

failed to allege sufficient facts to support his allegation. We 

further note that because Bush and other witnesses testified 

about the weaponry found at Leal’s house, the jury was aware 

of that fact.

Assuming that Custer has made sufficient allegations to preserve his claim of ineffective assistance of counsel as to this 

issue, we still find no prejudice in counsel’s handling of this 

issue. There is no merit to this assignment of error.

(d) Failure to Call 

Breen as Witness

Custer contends that his counsel was ineffective for failing to 

call Breen, a lawyer from the Commission on Public Advocacy 

who was first appointed as Custer’s counsel, because Breen 

“had been told the entire version of . . . Custer’s side of the 

incidents leading up to the shooting death of . . . McCormick, 

within only a few days of the shooting” in order “to confirm 

the version of events as told by [Custer] at trial.”14 Custer 

14 Id. at 19.
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argues that Breen could have testified that Custer “maintained 

from the beginning that he acted in self-defense” and that 

Custer “testified differently at the behest of” counsel due to 

“improper legal advice.”15

Fields testified on direct examination that Custer had told 

him shortly after the shooting that McCormick “had come 

running at [Custer] with something in his hand,” so Custer 

shot at him. Fields testified again on direct examination that 

Custer told him that McCormick “had rushed [Custer] and that 

[McCormick] had something in his hand.”

Custer has not identified how Breen’s testimony of Custer’s 

account following the shooting and immediately prior to trial 

would have differed from the account that Custer relayed to 

Fields shortly after the shooting and prior to trial. Custer has 

only alleged that Breen would “underscore” that Custer “testified [at trial] differently at the behest of his unethical lawyer 

. . . whom [sic] gave him improper legal advice.”16 Custer has 

not alleged what Breen would testify to in support of Custer’s 

claim that he changed his testimony due to counsel’s “improper 

legal advice.” Custer alleged only mere conclusions of law 

and has not alleged sufficient facts to support his allegation of 

ineffective assistance of counsel. There is no merit to Custer’s 

arguments on appeal.

(e) Failure to Object

Custer argues that counsel was ineffective for failing to 

object to (1) a statement made by the prosecutor in closing 

argument that Custer could “accurately testify in relation to 

the evidence . . . because he had had 15 months to review the 

evidence, discovery, and hear all the testimony given in the 

case”;17 (2) an analogy made by the prosecutor in closing statements; (3) “badgering the witness about someone else yelling 

15 Id. at 20.

16 Id.

17 Id. at 22.
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during the shooting”;18 (4) an inquiry made by the State into 

Custer’s criminal history during direct examination of Fields; 

and (5) testimony from Fields that Custer was not scared of 

McCormick. The district court held that counsel’s failure to 

object in each of these instances was not deficient and that 

Custer had not shown he was prejudiced.

First, Custer contends that the prosecutor’s statements in 

closing arguments were improper when the prosecutor stated 

that Custer could “accurately testify in relation to the evidence 

. . . because he had had 15 months to review the evidence.”19

We have already addressed this allegation in our opinion in 

Custer’s direct appeal.20 We held that

the State’s comments [made during closing arguments 

referencing the prosecutor’s statements] regarding the 

amount of time [Custer] had to prepare his testimony for 

trial and the State’s comments highlighting [Custer’s] 

failure to report the shooting and McCormick’s alleged 

aggressive actions to the police . . . were not improper 

and did not constitute prosecutorial misconduct.21

We will not revisit the matter here.22 There is no merit to 

this assertion.

Custer next contends that counsel was ineffective for failing to object to the prosecutor’s closing argument when the 

prosecutor relied on an analogy that Custer’s account of the 

circumstances surrounding the shooting were a “lie” and a 

“fantasy,” much like the story about Santa Claus that he told 

his son at Christmas. In order for his son to believe in Santa 

Claus, the prosecutor explained, his son would have to “ignore 

the evidence.” The prosecutor then stated that Custer’s account 

18 Id. at 24.

19 See id. at 22.

20 State v. Custer, supra note 1.

21 Id. at 107, 871 N.W.2d at 259.

22 See Thomas v. State, 268 Neb. 594, 685 N.W.2d 66 (2004).
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“doesn’t comport with reality. He is asking you to ignore the 

evidence. It does not fit common sense.” Custer contends that 

the analogy was “religiously infused,” thus “playing to the passions and prejudices of the jury.”

[7-10] 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.”23 But we have explained that “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.”24 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.25 In assessing whether a prosecutor’s statements were misconduct, we “look[] 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.”26

Custer mischaracterizes the prosecutor’s analogy. The prosecutor’s statements were not “religiously infused.” Instead, 

looking at the entire context of the language, the statement 

to which Custer takes issue established an inference that the 

jury would have to “ignore the evidence” to believe Custer’s 

account. Thus, the prosecutor was arguing that a conclusion 

could be drawn from the evidence that Custer lied in his 

23 Neb. Ct. R. of Prof. Cond. § 3-503.4(e).

24 State v. Gonzales, 294 Neb. 627, 645, 884 N.W.2d 102, 117 (2016).

25 State v. Gonzales, supra note 24.

26 Id. at 647, 884 N.W.2d at 118.
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testimony. Because the prosecutor’s analogy was not an expression of a personal opinion in support of religion, or an effort 

to inflame the jurors’ prejudices or excite their passions against 

the accused, we find no error in the prosecutor’s comments.

[11] Custer next argues that counsel was ineffective for 

failing to object to questioning about “someone else yelling during the shooting, which wasn’t in evidence.”27 Custer 

argued this assertion in his brief, but did not allege this in his 

motion for postconviction relief. 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.28 Therefore, we do not consider 

this allegation.

Custer also contends that counsel was ineffective for failing 

to object to questions during the direct examination of Fields 

about Custer’s prior criminal record and status as a felon. 

Custer contends that counsel should have invoked Neb. Rev. 

Stat. § 27-609 (Reissue 2016), which deals with the impeachment by evidence of a conviction for a crime. Custer takes 

issue with the following question counsel directed at Fields 

on direct examination: “Q: [Custer] also is a felon, is that correct? [Fields]: Yes.” While not cited by Custer, counsel then 

proceeded to ask:

Q: And where has he done some time? State or —

[Fields]: State jail.

Q: State and county jail?

A: Yeah.

. . . .

Q: Okay, and in fairness to him, I mean there is nothing 

similar to these charges?

A: No.

Q: It was theft or those types of things?

A: That stuff, yes.

27 Brief for appellant at 24.

28 State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
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Section 27-609(1) provides for the impeachment of a witness on cross-examination when the witness has committed 

a felony or a crime of dishonesty.29 After the conviction is 

established, “‘the inquiry must end there, and it is improper to 

inquire into the nature of the crime, the details of the offense, 

or the time spent in prison as a result thereof.’”30

Counsel’s conduct was not deficient. Having reviewed the 

record, it is apparent that the purpose of this line of questioning was to emphasize that Custer’s prior criminal record was 

nonviolent. Given that Custer was charged in this case with 

first degree murder, it was not deficient for counsel to emphasize that while Custer might have a criminal record, the prior 

charges for which he was convicted were not violent crimes.

And even if counsel was deficient in questioning Fields 

about Custer’s prior criminal record and status as a felon, 

Custer’s claim fails for lack of prejudice. On direct examination, Custer also testified that he had been convicted of a 

felony and listed the felonies on his criminal record. There is 

no merit to this allegation of ineffective assistance of counsel.

In addition, Custer contends that counsel was ineffective 

for failing to object to an answer made by Fields, which 

Custer contends was hearsay. Custer takes issue with the following inquiry in the State’s direct examination of Fields: 

“Q: How about, to your knowledge did [Custer] ever indicate 

that he was scared of [McCormick] to you? [Fields]: No. 

Q: He didn’t indicate that [to] you? A: No.” Custer claims that 

counsel should have objected to Fields’ answer as hearsay, 

because Fields “is unqualified to know the thoughts and fears 

of [Custer].”31

Custer mischaracterizes the above line of inquiry. The State 

asked whether Custer had indicated to Fields that he was 

29 See State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).

30 Id. at 388, 855 N.W.2d at 22, quoting State v. Johnson, 226 Neb. 618, 413 

N.W.2d 897 (1987).

31 Brief for appellant at 25.
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scared of McCormick. A witness may not testify to a matter 

unless evidence is introduced sufficient to support a finding 

that he has personal knowledge of the matter.32 The question 

concerns whether Custer had indicated anything to Fields. This 

is a fact within Fields’ personal knowledge of the matter and, 

as such, was admissible.33 Counsel was not deficient for failing 

to object.

There is no merit to this assignment of error.

(f) Jury Instructions

Custer argues that counsel was ineffective for (1) failing to 

submit a proper jury instruction on self-defense in accordance 

with State v. Miller34 and NJI2d Crim. 7.3; (2) failing to provide a “self-defense option on jury verdict form, and only 1 

jury verdict form was sent to the jury room, which prevented 

multiple jurors from seeing the jury form and understanding it 

completely”;35 (3) failing to identify manslaughter as voluntary 

manslaughter in jury instructions Nos. 4 and 5; (4) using the 

wrong definition of “premeditation” in jury instruction No. 7; 

(5) failing to include jury instruction No. 10, “Self Defense 

(Deadly Force),” as part of jury instruction No. 3, “Reasonable 

Doubt”; and (6) failing to object to jury instruction No. 14, 

because it “is confusing.”36

We find that the jury was instructed on Custer’s claim of 

self-defense. Jury instruction No. 4 states, under the elements 

of first degree murder, “[t]hat the Defendant did not do so in 

self-defense.” Similarly, this phrase is also listed under the elements of second degree murder and manslaughter.

The language of jury instruction No. 10 comes directly from 

NJI2d Crim. 7.3. Custer contends that the language is improper 

32 Neb. Rev. Stat. § 27-602 (Reissue 2016).

33 See id.

34 State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).

35 Brief for appellant at 26.

36 Id. at 29.
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in light of State v. Miller.

37 But Custer fails to allege how the 

instruction should have read in order for it to be “proper.” 

Therefore, we find that the above jury instruction properly 

instructed the jury on self-defense.

Second, we find that “a self-defense option” was clearly 

explained in the jury instructions. As we stated, jury instruction No. 10 defines self-defense under the circumstances of 

this case. Jury instruction No. 4 further states that the jury 

must find Custer not guilty of count I if “you find the State has 

failed to prove beyond a reasonable doubt any one or more of 

the elements.” Because “[t]hat the Defendant did not do so in 

self-defense” was one of the elements of first degree murder, 

second degree murder, and manslaughter, it necessarily follows 

that if the jury found the State had not proved that element, the 

jury would have to find Custer not guilty of both counts I and 

II. Therefore, the jury instructions provided adequate explanation and opportunity for the jury to find that Custer acted in 

self-defense.

We do not consider the remainder of Custer’s allegations on 

appeal, because they were not alleged in his motion for postconviction relief.

There is no merit to this assignment of error.

2. Appointment of Counsel

Finally, Custer contends that the district court erred in denying him appointment of counsel because the “instant action” is 

a “‘critical stage of a criminal prosecution.’”38

[12-14] There is no federal or state constitutional right to 

an attorney in state postconviction proceedings.39 Under the 

Nebraska Postconviction Act, it is within the discretion of 

the trial court as to whether counsel shall be appointed to 

37 State v. Miller, supra note 34.

38 Brief for appellant at 10.

39 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
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represent the defendant.40 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.41 Because Custer’s postconviction motion presents no justiciable issues, the district court 

did not err in not appointing Custer postconviction counsel.

VI. CONCLUSION

We conclude the district court did not err when it determined 

that Custer’s motion for postconviction relief did not allege 

facts which constituted a denial of his constitutional rights and 

accordingly denied Custer’s motion. The judgment of the district court is affirmed.

Affirmed.

Wright, J., not participating in the decision.

40 Id.

41 State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).