State v. Vela, 297 Neb. 227

Background

Erick F. Vela pled guilty in 2003 to five counts of first-degree murder and related felonies stemming from a 2002 bank robbery; a three-judge panel imposed five death sentences. The convictions and sentences were affirmed on direct appeal.
Vela filed an amended postconviction motion (2014) raising numerous ineffective-assistance claims against the attorney who represented him at trial and on direct appeal; the district court denied relief without an evidentiary hearing.
This court vacated and remanded once for the district court to apply the correct standard; on remand the district court again denied relief without an evidentiary hearing.
On appeal Vela challenges the denial as to six specific ineffective-assistance claims: (1) counsel failed to advise an earlier guilty plea; (2) counsel failed to timely discover/challenge a prosecutor–juror personal relationship; (3) counsel failed to raise Batson objections on direct appeal; (4) counsel blocked full intellectual/adaptive testing by the State’s expert; (5) counsel failed to request a malice definition instruction for an aggravating circumstance; and (6) counsel failed to present evidence negating malice.
Vela also asked the court to consider a Hurst-based challenge to Nebraska’s judge-panel sentencing scheme, but conceded that claim was not raised below; the court declined to consider it.

Issues

Issue	Plaintiff's Argument (Vela)	Defendant's Argument (State)	Held
Timing of plea (pre-L.B.1/amended info/discovery of Lundell body)	Counsel should have advised pleading earlier to avoid exposure to death penalty or to avoid prejudicial events (L.B.1 enactment, amendment alleging aggravators, discovery of Lundell body)	Prior holdings and record show death penalty exposure existed; amendment/retroactivity issues resolved against Vela; speculation that counsel could predict/discover Lundell earlier	No deficient performance or prejudice; claim rejected without hearing
Prosecutor–juror relationship (pastor)	Counsel failed to discover/strike or move for mistrial when presiding juror was prosecutor’s pastor; appellate counsel failed to raise it	Voir dire showed juror affirmed impartiality; no showing counsel would have peremptorily struck him or that substitution would change outcome	No prejudice shown; claim rejected without hearing
Failure to raise Batson on appeal	Trial prosecutor struck sole Hispanic and sole African-American jurors; appellate counsel should have assigned Batson error	Prosecutor offered race-neutral reasons; trial court found reasons persuasive; no good appellate claim existed	No reasonable probability of success on appeal; not ineffective
Intellectual functioning testing (adaptive behavior)	Counsel prevented State expert Zlomke from administering adaptive testing; further testing would have shown significant adaptive deficits and precluded death	Record shows Zlomke used alternative measures and concluded overall adaptive behavior appropriate; no prejudice from alleged omission	No prejudice; claim rejected without hearing
Failure to request definition of malice (re: Lundell)	Counsel should have requested a malice instruction when Lundell killing was used as aggravating evidence	Aggravator (§ 29-2523(1)(a)) concerns prior assaultive/terrorizing history, not degree of culpability; even if malice lacking, lesser homicide evidence still supports aggravator	No prejudice; failure to request instruction not ineffective
Failure to present evidence to negate malice (re: Lundell)	Counsel should have offered evidence (e.g., coercion, diminished intellect) to negate malice and reduce weight of the aggravator	Evidence of killing (even if lesser degree) still supports the § 29-2523(1)(a) aggravator; sentencing panel likely would have given it similar weight	No prejudice shown; claim rejected without hearing

Key Cases Cited

State v. Vela, 279 Neb. 94 (Neb. 2010) (direct-appeal decisions on several issues including Ring/L.B.1 and adaptive-functioning evidence)
State v. Galindo, 278 Neb. 599 (Neb. 2009) (notice-of-aggravation procedural-change nonretroactivity)
State v. Watson, 295 Neb. 802 (Neb. 2017) (postconviction pleading and hearing standards)
State v. Ely, 295 Neb. 607 (Neb. 2017) (first opportunity to raise ineffective-assistance claims when same counsel represented defendant at trial and on direct appeal)
State v. Starks, 294 Neb. 361 (Neb. 2016) (appellate counsel ineffective only if reasonable probability issue would change appeal outcome)
State v. Oliveira-Coutinho, 291 Neb. 294 (Neb. 2016) (de novo review of facial validity of race-neutral Batson explanations)
State v. Banks, 278 Neb. 342 (Neb. 2009) (trial court discretion on juror retention/strike)
State v. Boche, 294 Neb. 912 (Neb. 2016) (constitutional issues not raised below are not considered on appeal)
Ring v. Arizona, 536 U.S. 584 (2002) (jury role in capital factfinding)
Batson v. Kentucky, 476 U.S. 79 (1986) (peremptory strikes subject to equal protection limitations)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: performance and prejudice)
Moore v. Texas, 137 S. Ct. 1039 (2017) (use of inappropriate medical standards for determining intellectual disability)