State v. Vela, 297 Neb. 227

Background

Erick F. Vela pled guilty (June 12, 2003) to five first-degree murders and related felonies arising from a 2002 bank robbery; a three-judge panel imposed death sentences for each murder.
Vela directly appealed; this court affirmed his convictions and sentences (State v. Vela, 279 Neb. 94).
In 2014 Vela filed an amended postconviction motion (first opportunity to raise ineffectiveness because same counsel represented him at trial and on direct appeal) asserting multiple Strickland-based ineffective-assistance claims; the district court denied relief without an evidentiary hearing.
This court earlier vacated and remanded because the district court used an incorrect standard; on remand the district court reconsidered under the correct standard and again denied relief without an evidentiary hearing as to each claim.
Vela appealed the denial; he also asked the court to consider a separately argued Hurst-based claim not raised below (the court declined to consider that unpreserved claim).
The Supreme Court affirmed, concluding Vela failed to allege facts showing deficient performance and prejudice for the claims litigated in the postconviction motion.

Issues

Issue	Vela's Argument	State's Argument	Held
Timing of guilty plea (failure to advise earlier plea)	Counsel should have had Vela plead earlier to avoid death-penalty exposure (LB1 enactment, amended info, and before discovery of Lundell body)	Existing precedent and record show death penalty remained available; alleged advantages are speculative and counsel could not predict discovery/timing	Denied — no deficient performance or prejudice; speculative benefits do not establish Strickland relief
Prosecutor–presiding juror relationship (failure to discover/challenge)	Counsel failed to discover/raise mistrial/new-trial based on prosecutor being juror’s pastor; also failed to raise on appeal	Voir dire showed juror could be fair; no allegation counsel would have struck him or extent of relationship; retention was discretionary	Denied — no demonstrated prejudice; juror statements negate bias and speculation about a different venire is insufficient
Failure to raise Batson rulings on direct appeal	Counsel should have assigned error to trial court’s overruling of Batson objections to strikes of sole Hispanic and sole African-American veniremembers	Prosecutor offered race-neutral reasons accepted by trial court; appellate challenge lacked likely merit	Denied — appellate counsel not ineffective because Batson challenge lacked reasonable probability of success on appeal
Failure to permit State expert adaptive-behavior testing / inadequate presentation of intellectual disability evidence	Counsel prevented full adaptive-behavior testing (challenging second prong of intellectual disability), prejudicing mitigation presentation	Record shows expert (Zlomke) evaluated adaptive behavior via informants and concluded overall adaptive behavior appropriate; no prejudice from alleged omission	Denied — alternative testing/assessments were performed and supported trial court’s findings; no Strickland prejudice
Failure to request jury instruction defining "malice" for aggravator based on Lundell killing	Counsel should have sought malice definition and presented evidence to negate malice (coercion, diminished capacity)	The §29-2523(1)(a) aggravator concerns prior assaultive/terrorizing history; even absent malice a lesser homicide would still support the aggravator; no reasonable probability outcome would differ	Denied — failure to seek malice instruction or additional evidence did not prejudice sentencing; aggravator still supported by evidence of the killing
Failure to present evidence to negate malice for Lundell killing	Same as prior row: evidence of coercion or diminished intellect would negate malice and reduce weight of aggravator	Even if malice not shown, evidence of involvement/lesser homicide would support aggravator; panel likely would not have given materially different weight	Denied — no prejudice shown; aggravator would remain supported regardless of malice finding

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance test: deficiency and prejudice)
Batson v. Kentucky, 476 U.S. 79 (peremptory challenges cannot be used for purposeful racial discrimination)
Ring v. Arizona, 536 U.S. 584 (death-penalty sentencing procedure limitations relevant to timing arguments)
State v. Vela, 279 Neb. 94 (direct-appeal opinion affirming convictions and addressing related procedural claims)
State v. Galindo, 278 Neb. 599 (held notice-of-aggravation procedural change not retroactive to original informations)
State v. Watson, 295 Neb. 802 (standard for when an evidentiary hearing is required on postconviction claims)
State v. Ely, 295 Neb. 607 (postconviction is first opportunity to raise ineffective assistance when same counsel represented at trial and on appeal)
State v. Starks, 294 Neb. 361 (standard for prejudice assessment as to appellate counsel omissions)
State v. Oliveira-Coutinho, 291 Neb. 294 (review standards for Batson race-neutral explanations)
Moore v. Texas, 137 S. Ct. 1039 (Supreme Court decision addressing standards for assessing intellectual disability in capital cases)