State v. Vela, 297 Neb. 227

Background

Erick F. Vela pleaded guilty (June 12, 2003) to five counts of first-degree murder and related offenses arising from a 2002 bank robbery; a three-judge panel later imposed five death sentences.
Vela directly appealed; this Court affirmed his convictions and sentences in State v. Vela.
In 2014 Vela filed an amended postconviction motion alleging multiple instances of ineffective assistance of trial and appellate counsel (same counsel at trial and on appeal).
The district court initially denied relief without an evidentiary hearing; this Court vacated and remanded for reconsideration under the correct standard.
On remand the district court again denied relief without an evidentiary hearing, rejecting six particular ineffective-assistance claims related to timing of plea, juror-prosecutor relationship, Batson challenges, intellectual functioning testing, malice instruction, and evidence to negate malice.
Vela appealed; he also asked this Court to consider a Hurst-based challenge to Nebraska’s judge-panel sentencing scheme, but that claim was not raised below and was not considered on appeal.

Issues

Issue	Vela's Argument	State's Argument	Held
Timing of plea (prejudice from counsel not advising earlier guilty plea)	Counsel should have had Vela plead earlier to avoid LB1/Ring timing, amended info alleging aggravators, and discovery of a separate homicide (Lundell) that later supported aggravation and undermined plea as mitigation	Prior cases show death penalty remained available; amended info and LB1 had no retroactive effect; predictions about Lundell discovery and counsel knowledge are speculative and not deficient	Denied — no deficient performance or prejudice shown; prior precedent undermines claim
Relationship between prosecutor and presiding juror	Counsel failed to discover and challenge that the presiding juror was the prosecutor’s pastor, and failed to move for mistrial/new trial or raise on appeal	Voir dire showed juror could be fair; no allegation counsel would have peremptorily struck juror; speculative that alternate juror would change outcome	Denied — no prejudice; retention/strike is trial court discretion and voir dire responses neutralize claim
Failure to raise Batson rulings on direct appeal	Counsel failed to assign error after prosecutor used peremptory strikes on sole Hispanic and sole African-American venirepersons	Prosecutor offered race-neutral reasons accepted by trial court; appellate inclusion unlikely to change result	Denied — race-neutral explanations persuasive; no reasonable probability of different outcome on appeal
Failure to permit State expert adaptive-behavior testing / prove intellectual disability	Counsel prevented further testing that would have shown deficits in adaptive functioning and established intellectual disability to bar death	Record shows State expert (Zlomke) used alternative adaptive-functioning measures and concluded overall adaptive behavior appropriate; lack of additional testing did not prejudice	Denied — no prejudice; alternative evaluation occurred and supported the court’s findings
Failure to request malice definition instruction re: Lundell homicide used for aggravator	Counsel should have requested malice definition or presented evidence showing lack of malice (coercion, diminished capacity) to prevent use of Lundell as § 29-2523(1)(a) aggravator	Even without malice finding, evidence of involvement in Lundell killing supports the ‘‘substantial prior history’’ aggravator; degree of homicide not required to prove that aggravator	Denied — no prejudice; Lundell evidence supports aggravator regardless of malice finding

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice test for ineffective assistance)
Ring v. Arizona, 536 U.S. 584 (addressed role of jury in capital sentencing; prompted Nebraska legislative changes)
Hurst v. Florida, 136 S. Ct. 616 (U.S. Supreme Court decision relied on by Vela but not raised below; Court declined to consider it on appeal)
Moore v. Texas, 137 S. Ct. 1039 (addressed proper standards for evaluating intellectual disability and adaptive functioning)
Batson v. Kentucky, 476 U.S. 79 (peremptory strike equal protection framework)
State v. Vela, 279 Neb. 94 (this Court’s direct-appeal decision affirming convictions and sentencing; cited on issues of Ring/LB1 and adaptive-behavior testing)
State v. Galindo, 278 Neb. 599 (held notice-of-aggravation procedural change inapplicable retroactively)
State v. Watson, 295 Neb. 802 (postconviction review standard: evidentiary hearing required when motion alleges facts which, if proved, constitute constitutional infringement)
State v. Starks, 294 Neb. 361 (standard on appellate counsel ineffectiveness; need reasonable probability issue on appeal would change outcome)
State v. Oliveira-Coutinho, 291 Neb. 294 (review standards for Batson race-neutral explanations)
State v. Boche, 294 Neb. 912 (unpreserved constitutional claims not considered on appeal)