State v. Vela, 297 Neb. 227

Background

Erick F. Vela pled guilty in 2003 to five counts of first-degree murder and related offenses arising from a 2002 bank robbery; a three-judge panel imposed death sentences after an aggravation hearing. The Nebraska Supreme Court affirmed on direct appeal.
Vela filed a postconviction motion (his first opportunity to raise ineffective-assistance claims because his trial counsel also represented him on direct appeal), alleging numerous failures by trial and appellate counsel. The district court denied relief without an evidentiary hearing; this court remanded once for the correct standard and the district court again denied relief. Vela appealed.
On appeal Vela pressed six specific ineffective-assistance claims: (1) counsel deterred an earlier guilty plea; (2) counsel failed to timely discover/challenge a personal relationship between the prosecutor and the presiding juror; (3) counsel failed to assign error on direct appeal to the trial court’s Batson rulings; (4) counsel failed to permit the State’s expert to fully test Vela’s intellectual functioning; (5) counsel failed to request a jury instruction defining malice as to the Lundell homicide used as aggravation; (6) counsel failed to present evidence negating malice regarding Lundell’s homicide.
The district court rejected each claim as insufficiently pleaded or lacking prejudice and denied an evidentiary hearing. Vela also asked this court to consider a Hurst-based challenge to Nebraska’s judge-panel sentencing scheme, but the claim was not raised below and was therefore not considered.
The Nebraska Supreme Court reviewed the postconviction denial de novo, applied Strickland standards for ineffective assistance, and affirmed the district court — finding no deficient performance that produced a reasonable probability of a different outcome.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timing of plea	Counsel should have advised Vela to plead earlier to avoid exposure to death penalty changes, amended information alleging aggravators, and discovery of Lundell’s body	Enactment of L.B. 1 and amended information did not remove death penalty; counsel could not foresee Lundell discovery; speculat ive that earlier plea would have avoided death exposure	No deficient performance or prejudice; prior decisions (Vela, Galindo) undercut claim and timing claim is speculative — denied without hearing
Prosecutor–juror relationship	Counsel failed to discover/challenge that presiding juror was the prosecutor’s pastor and failed to move for mistrial/new trial or raise on appeal	Voir dire showed juror could be fair; no allegation counsel would have struck juror or extent of relationship; speculative whether a different juror would change outcome	No prejudice shown; discretionary juror retention proper; claim rejected
Failure to appeal Batson rulings	Counsel failed to assign error on direct appeal after prosecutor struck sole Hispanic and sole African-American jurors	Prosecutor offered race-neutral reasons for strikes; trial court found explanations persuasive; appellate challenge lacked merit	No reasonable probability that raising Batson on appeal would have changed result; not ineffective assistance
Intellectual functioning testing	Counsel prevented State’s expert from administering adaptive behavior tests that would show intellectual disability and preclude death penalty	Record shows expert (Zlomke) used alternative means and concluded overall adaptive behavior appropriate; testing would not have changed result	No prejudice because adaptive-functioning was evaluated and found not significantly impaired; claim rejected
Malice instruction re: Lundell homicide	Counsel failed to request malice definition instruction related to Lundell killing used as aggravation	Even absence of malice would not negate existence of prior assaultive/terrorizing activity; lesser homicide still supports aggravator; direct appeal already rejected plain-error claim	No prejudice; instruction omission did not undermine aggravator or sentencing outcome
Failure to present evidence negating malice	Counsel failed to present evidence that Vela acted under coercion or lacked capacity as to Lundell killing	Evidence of killing would still support § 29-2523(1)(a); panel relied on Lundell but other aggravators existed; prior appellate rulings rejected absence-of-malice theory	No reasonable probability of different outcome; claim rejected

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Ring v. Arizona, 536 U.S. 584 (effect of jury factfinding on capital sentencing)
Batson v. Kentucky, 476 U.S. 79 (peremptory strikes and Equal Protection)
Moore v. Texas, 137 S. Ct. 1039 (standards for evaluating intellectual disability)
State v. Vela, 279 Neb. 94 (direct-appeal decisions rejecting related challenges)
State v. Galindo, 278 Neb. 599 (holding notice-of-aggravation rule procedural and not retroactive)