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 arising from a 2002 bank robbery; a three-judge panel imposed five death sentences after an aggravation hearing.
Vela’s trial counsel also represented him on direct appeal; this postconviction motion was his first opportunity to raise ineffective-assistance claims.
Vela filed an amended postconviction motion raising numerous ineffective-assistance-of-counsel claims; the district court denied relief without an evidentiary hearing; this Court remanded for reconsideration under the correct standard and the district court again denied relief.
On appeal Vela challenged six specific claims of ineffective assistance (timing of plea, prosecutor–juror relationship, failure to raise Batson on appeal, intellectual-functioning testing, failure to request malice instruction, failure to present evidence negating malice).
The district court concluded Vela’s allegations were speculative or foreclosed by the record and prior appellate holdings; this Court affirmed, finding no entitlement to an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timing of guilty plea	Counsel should have advised earlier plea; earlier plea could have avoided death penalty exposure (pre-L.B.1 or before amended information) and effects of later-discovered Lundell homicide	Prior precedent and statutory timing show death penalty remained available; claims about Lundell discovery are speculative and counsel could not foresee or prevent discovery	Denied — counsel not shown deficient; no prejudice established
Prosecutor–presiding juror relationship	Counsel failed to discover/challenge that juror was prosecutor’s pastor; counsel failed to move for mistrial or raise on appeal	Voir dire showed juror affirmed impartiality; no allegation counsel would have struck him or that relationship was material	Denied — no prejudice; retention of juror within trial court discretion
Failure to raise Batson on direct appeal	Counsel failed to assign error after prosecutor used peremptory strikes on sole Hispanic and sole African-American venire members	Prosecutor gave race-neutral reasons (personality, prior prosecutions); trial court found reasons persuasive	Denied — race-neutral reasons sufficient; no reasonable probability appeal outcome would differ
Intellectual functioning testing	Counsel prevented State expert from administering adaptive-behavior testing that would have shown intellectual disability and precluded death	Record shows expert used alternative measures and concluded overall adaptive behavior appropriate; no prejudice shown	Denied — no deficient performance or prejudice; prior record supports finding
Failure to request malice instruction	Counsel failed to request definition of malice for use of Lundell killing as aggravating evidence	Aggravating circumstance (§ 29-2523(1)(a)) concerns history of assaultive/terrorizing activity, not mental state; even if malice not proven, evidence of involvement supports the aggravator	Denied — no prejudice; instruction would not likely have changed weighing
Failure to present evidence negating malice	Counsel failed to present evidence (e.g., coercion, diminished IQ) to negate malice re: Lundell killing	Even if malice reduced, evidence of involvement supports the statutory aggravator; sentencing panel relied on multiple aggravators	Denied — no prejudice shown; aggravator still supported

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; background to Nebraska statutory changes)
Hurst v. Florida, 136 S. Ct. 616 (U.S. Supreme Court decision discussed by Vela but not raised below)
Moore v. Texas, 137 S. Ct. 1039 (addressed standards for evaluating intellectual disability; discussed but not directly dispositive here)
Batson v. Kentucky, 476 U.S. 79 (peremptory challenge equal protection framework)
State v. Vela, 279 Neb. 94 (direct appeal; prior Nebraska Supreme Court decisions addressing many of these same arguments)
State v. Galindo, 278 Neb. 599 (holding that notice-of-aggravation rule did not apply retroactively)
State v. Watson, 295 Neb. 802 (standards for postconviction motions and evidentiary hearings)
State v. Ely, 295 Neb. 607 (postconviction review of appellate counsel claims)
State v. Starks, 294 Neb. 361 (prejudice standard for omitted appellate issues)
State v. Oliveira-Coutinho, 291 Neb. 294 (review standards for Batson race-neutral explanations)