State v. Vela, 297 Neb. 227

Background

Erick F. Vela pled guilty (June 12, 2003) to five counts of first-degree murder and related felonies arising from a 2002 bank robbery that resulted in five deaths; a three-judge panel imposed five death sentences.
Vela’s trial counsel also represented him on direct appeal; direct appeal affirmed the sentences (State v. Vela, 279 Neb. 94 (2010)).
In his amended postconviction motion (filed Jan. 7, 2014), Vela raised numerous ineffective-assistance claims; the district court denied relief without an evidentiary hearing, this court remanded for reconsideration using the correct standard, and the district court again denied relief.
On appeal from that denial, Vela challenged six specific ineffective-assistance theories arising from trial and appellate representation.
The Nebraska Supreme Court reviews de novo whether a postconviction motion alleges sufficient facts to require an evidentiary hearing and applies Strickland’s deficient-performance and prejudice test to ineffective-assistance claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timing of guilty plea (delay)	Counsel failed to advise/allow an earlier plea; earlier plea would have avoided death penalty exposure (pre-LB1, prior to amended information, and before discovery of separate Lundell homicide).	Changes in law/procedure did not eliminate death penalty; amended information and discovery rules did not retroactively bar aggravation; speculation that counsel knew Lundell issue beforehand is unfounded.	Denied. Court found prior holdings and procedural law defeat LB1/notice arguments; Lundell-related claim speculative and counsel not deficient.
Prosecutor–juror personal relationship	Counsel failed to discover/challenge that presiding juror was prosecutor’s pastor; failure to move for mistrial or raise on appeal prejudiced Vela.	Voir dire showed juror could be fair; no allegation counsel would have struck juror nor extent of relationship; discretion to retain juror.	Denied. No prejudice shown; juror represented himself as impartial and any strike decision speculative.
Failure to raise Batson on direct appeal	Counsel failed to assign error to trial court’s rejection of Batson challenges after prosecutor struck only Hispanic and only African-American venirepersons.	Prosecutor provided facially race-neutral reasons and trial court accepted them; appellate counsel not deficient to omit a weak claim.	Denied. No reasonable probability that raising Batson on appeal would have changed result.
Intellectual functioning testing / Atkins-type claim	Counsel prevented the State’s expert from performing adaptive-behavior testing that would show intellectual disability and bar death penalty.	Record shows State’s expert (Zlomke) used alternative methods and concluded overall adaptive behavior appropriate; no prejudice from alleged refusal.	Denied. Even if testing was prevented, expert’s other evaluation supported the court’s finding; no prejudice shown.
Failure to request malice definition instruction (re: Lundell)	Counsel should have requested a juror instruction defining malice in assessing § 29-2523(1)(a) aggravator based on Lundell killing.	Aggravator concerns prior assaultive/terrorizing history; absence of malice instruction would not change conclusion because evidence showed killing occurred and supported the aggravator even if degree varied.	Denied. No prejudice shown; malice definition omission would not have undermined aggravator weight or sentence.
Failure to present evidence negating malice for Lundell killing	Counsel failed to present evidence (including diminished intellect/coercion) that would negate malice and the aggravator.	Even absent malice, evidence of involvement or lesser homicide still supports the "substantial prior history of serious assaultive or terrorizing criminal activity" aggravator; no reason sentencing panel would reduce weight.	Denied. No prejudice shown; evidence would not have undermined aggravator or outcome.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-part deficient performance and prejudice test for ineffective assistance)
Batson v. Kentucky, 476 U.S. 79 (1986) (peremptory strikes may not be used for racial discrimination)
Ring v. Arizona, 536 U.S. 584 (2002) (concerning factfinding for death-eligibility)
Hurst v. Florida, 136 S. Ct. 616 (2016) (jury role in capital sentencing issues)
Moore v. Texas, 137 S. Ct. 1039 (2017) (standards for evaluating intellectual disability in capital cases)
State v. Vela, 279 Neb. 94 (2010) (direct-appeal decision affirming convictions and addressing several procedural and mitigation issues)
State v. Galindo, 278 Neb. 599 (2009) (notice-of-aggravation procedural-rule/retroactivity analysis)
State v. Watson, 295 Neb. 802 (2017) (standard for granting evidentiary hearing on postconviction motions)
State v. Ely, 295 Neb. 607 (2017) (postconviction as first opportunity to assert ineffective assistance where same counsel represented at trial and on direct appeal)
State v. Starks, 294 Neb. 361 (2016) (probability standard for showing prejudice from unraised appellate issues)
State v. Oliveira-Coutinho, 291 Neb. 294 (2015) (Batson review standards)