State v. Vela, 297 Neb. 227

Background

Erick F. Vela pled guilty in 2003 to five murders and related felonies arising from a 2002 bank robbery; a three-judge panel imposed five death sentences after an aggravation hearing. The convictions and sentences were affirmed on direct appeal.
Vela filed an amended postconviction motion in 2014 alleging numerous instances of ineffective assistance by trial and appellate counsel (same counsel at both stages); the district court denied relief without an evidentiary hearing.
This court vacated and remanded once for the district court to apply the correct standard, after which the district court again denied the postconviction motion without an evidentiary hearing.
On appeal from that denial, Vela pressed six discrete ineffective-assistance claims: (1) counsel delayed advising a guilty plea; (2) counsel failed to discover/challenge a prosecutor–juror pastoral relationship; (3) counsel failed to raise Batson errors on direct appeal; (4) counsel failed to permit State expert adaptive- behavior testing relevant to intellectual disability; (5) counsel failed to request a malice definition instruction as to an aggravating circumstance; and (6) counsel failed to present evidence negating malice.
The district court and this court applied Strickland standards and Nebraska postconviction hearing rules and rejected each claim as either speculative, legally insufficient, or nonprejudicial, affirming denial without an evidentiary hearing.

Issues

Issue	Plaintiff's Argument (Vela)	Defendant's Argument (State)	Held
1. Timing of guilty plea	Counsel should have advised/allowed an earlier plea so L.B. 1 or an unamended information would have precluded death and discovery of an unrelated homicide (Lundell) would not have affected sentencing	Prior Nebraska precedent and procedural law meant death remained available; any benefit from earlier plea is speculative and counsel could not foresee discovery timing	Rejected — no deficient performance or prejudice; prior precedent defeats claim and allegation rests on speculation
2. Prosecutor–juror relationship	Counsel failed to discover/timely challenge that the presiding juror was the prosecutor’s pastor, prejudicing fairness	Voir dire showed juror could be impartial; no showing counsel would have struck juror or that a different juror would change outcome	Rejected — no demonstrated prejudice; retention of juror within trial court discretion and claim speculative
3. Failure to raise Batson on appeal	Counsel failed to assign error on direct appeal to trial court’s denial of Batson challenges to peremptory strikes of minority jurors	Prosecutor provided race-neutral reasons for strikes; appellate success unlikely	Rejected — appellate counsel not ineffective; no reasonable probability the appeal result would change
4. Intellectual functioning testing	Counsel prevented State expert from administering adaptive-behavior testing that would have shown intellectual disability and barred death	Record shows State expert nonetheless evaluated adaptive functioning (interviews/modified testing) and concluded overall adaptive behavior appropriate	Rejected — no prejudice; alternative evaluation occurred and earlier appellate precedent supports result
5. Malice instruction re: Lundell killing	Counsel should have requested instruction defining malice because Lundell evidence supported aggravation under § 29-2523(1)(a)	Even if malice were negated, existence of killing (or lesser homicide) still supports the statutory aggravator; appellate court already rejected plain-error claim	Rejected — no prejudice from failure to request instruction
6. Failure to present evidence negating malice	Counsel failed to present evidence (including intellectual deficits/coercion) to show lack of malice for Lundell killing	Evidence of killing suffices for the § 29-2523(1)(a) aggravator; sentencing panel’s emphasis would likely remain	Rejected — no deficient performance causing prejudice

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
Batson v. Kentucky, 476 U.S. 79 (peremptory strikes and Equal Protection)
Ring v. Arizona, 536 U.S. 584 (capital sentencing; referenced for timing arguments)
Moore v. Texas, 137 S. Ct. 1039 (adaptive-functioning standards in intellectual-disability determinations)
State v. Vela, 279 Neb. 94 (direct appeal opinion addressing many issues)
State v. Galindo, 278 Neb. 599 (amendment/notice-of-aggravation timing)
State v. Watson, 295 Neb. 802 (postconviction hearing standards)
State v. Ely, 295 Neb. 607 (ineffective-assistance claims on postconviction when same counsel handled trial and direct appeal)
State v. Starks, 294 Neb. 361 (appellate counsel prejudice inquiry)
State v. Oliveira-Coutinho, 291 Neb. 294 (review standards for Batson race-neutral explanations)