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 for a 2002 Norfolk, Nebraska bank robbery; a three‑judge panel sentenced him to death for each murder.
On direct appeal the Nebraska Supreme Court affirmed Vela’s convictions and sentences.
Vela filed an amended postconviction motion (Jan. 7, 2014) asserting numerous claims of ineffective assistance of trial and appellate counsel (trial counsel was also appellate counsel).
The district court initially denied relief without an evidentiary hearing; this Court remanded for reconsideration under the correct standard.
On remand the district court again denied the motion without an evidentiary hearing, rejecting six identified ineffective‑assistance claims; Vela appeals that denial.
Vela also asked this Court to consider a Hurst‑based challenge to Nebraska’s sentencing scheme that was not raised below; the Court declined to consider that unpreserved claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timing of plea (delay)	Counsel should have advised earlier guilty pleas; earlier plea would have avoided post‑Ring statutory changes, amended information alleging aggravators, and discovery of an unrelated homicide (Lundell) that hurt mitigation and supported an aggravator.	Prior Nebraska decisions and procedural history show death penalty remained available; amended information and L.B.1 had no retroactive effect; counsel could not reasonably predict discovery of Lundell’s body.	Denied — speculative; precedent undermines claim; no deficient performance or prejudice shown.
Prosecutor–juror relationship	Counsel failed to discover and timely challenge that the presiding juror was the prosecutor’s pastor; counsel failed to move for mistrial/new trial or raise on appeal.	Voir dire showed juror could be impartial; no allegation counsel would have struck the juror; speculative that a different juror would change outcome.	Denied — no prejudice; trial court’s retention would not be abuse of discretion.
Failure to appeal Batson rulings	Counsel failed to assign error on direct appeal to the trial court’s rejection of Batson challenges (strikes of sole Hispanic and sole African‑American venirepersons).	Prosecutor offered race‑neutral reasons; trial court found them persuasive; no substantial probability an appeal would have succeeded.	Denied — no ineffective assistance; issue lacked sufficient strength to show prejudice.
Intellectual functioning testing	Counsel prevented State’s expert from administering adaptive behavior testing, undermining a claim of intellectual disability that would bar death eligibility.	Record shows the State’s expert used alternative validated methods and concluded overall adaptive behavior appropriate; no prejudice from alleged refusal.	Denied — alternative testing occurred and supported the court’s findings; no deficient performance/prejudice.
Instruction defining malice	Counsel failed to request a malice definition for use in weighing an aggravator based on the Lundell killing.	Aggravator § 29‑2523(1)(a) requires assessing prior assaultive history, not proof of specific mens rea for Lundell; even if malice were lacking, evidence of involvement supports the aggravator.	Denied — no prejudice; failure to request definition would not have altered weighing.
Presentation of evidence to negate malice	Counsel failed to present evidence (e.g., coercion, diminished intellect) negating malice for Lundell and thus undermining the aggravator.	Even lesser homicide or mitigation would still support the § 29‑2523(1)(a) aggravator; record contains no showing counsel’s omissions changed outcome.	Denied — speculative and insufficient to establish Strickland prejudice.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing performance and prejudice test for ineffective assistance of counsel)
Batson v. Kentucky, 476 U.S. 79 (peremptory strikes subject to Equal Protection analysis; burden‑shifting test)
Ring v. Arizona, 536 U.S. 584 (death‑penalty factfinding and effects on sentencing procedures)
Moore v. Texas, 137 S. Ct. 1039 (Supreme Court guidance on assessing intellectual disability and adaptive functioning)
State v. Vela, 279 Neb. 94 (Neb. 2010) (direct‑appeal decision affirming convictions and addressing many issues raised here)
State v. Galindo, 278 Neb. 599 (Neb. 2009) (discussing notice of aggravation and retroactivity of procedural changes)