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State of Nebraska, appellee, v.

Erick F. Vela, appel

___ N.W.2d ___

Filed July 21, 2017. No. S-16-465.

1. Constitutional Law: Appeal and Error. A constitutional issue not 

presented to or passed upon by the trial court is not appropriate for consideration on appeal.

2. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo 

a determination that the defendant failed to allege sufficient facts to 

demonstrate a violation of his or her constitutional rights or that the 

record and files affirmatively show that the defendant is entitled to 

no relief.

3. Postconviction: Constitutional Law: Judgments. Postconviction relief 

is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or 

her constitutional rights such that the judgment was void or voidable.

4. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

5. ____: ____: ____. A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion contains factual 

allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal Constitution.

6. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively 

show that the defendant is entitled to no relief, the court is not required 

to grant an evidentiary hearing.

7. Postconviction: Effectiveness of Counsel: Appeal and Error. When a 

defendant was represented both at trial and on direct appeal by the same 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/18/2017 01:08 AM CDT
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counsel, the defendant’s first opportunity to assert ineffective assistance 

of counsel is in a motion for postconviction relief.

8. Constitutional Law: Effectiveness of Counsel. A proper ineffective 

assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

9. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and 

Error. To prevail on a claim of ineffective assistance of counsel under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. To show prejudice under the prejudice 

component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that 

the deficient performance altered the outcome of the case; rather, the 

defendant must show a probability sufficient to undermine confidence in 

the outcome.

10. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim 

of ineffective assistance of appellate counsel which could not have been 

raised on direct appeal may be raised on postconviction review.

11. Effectiveness of Counsel: Appeal and Error. When analyzing a claim 

of ineffective assistance of appellate counsel, courts usually begin by 

determining whether appellate counsel actually prejudiced the defendant. That is, courts begin by assessing the strength of the claim appellate 

counsel failed to raise.

12. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion 

of the issue would have changed the result of the appeal.

13. Trial: Juries. The retention or rejection of a venireperson as a juror is a 

matter of discretion with the trial court.

14. Juries: Discrimination: Appeal and Error. An appellate court reviews 

de novo the facial validity of an attorney’s race-neutral explanation for 

using a peremptory challenge as a question of law.

15. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. 

An appellate court reviews for clear error a trial court’s factual determination regarding whether a prosecutor’s race-neutral explanation is 

persuasive and whether the prosecutor’s use of a peremptory challenge 

was purposefully discriminatory.

Appeal from the District Court for Madison County: James

G. Kube, Judge. Affirmed
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Patrick P. Carney, of Carney Law, P.C., for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellee.

Wright, Miller-Lerman, Cassel, Stacy, Kelch, a

JJ., and Inbody, Judg

Miller-Lerman,

NATURE OF CASE

Erick F. Vela appeals the order of the district court for 

Madison County which overruled his motion for postconviction relief without an evidentiary hearing. He claims the district court erred when it rejected six of his claims of ineffective 

assistance of counsel. He also asks this court to consider an 

additional claim that was not presented to or passed upon by 

the district court. We affirm the district court’s order.

STATEMENT OF FACTS

On June 12, 2003, Vela pled guilty to the murders of 

Lisa Bryant, Lola Elwood, Jo Mausbach, Evonne Tuttle, and 

Samuel Sun. The five victims had been killed during an 

attempted bank robbery carried out by Vela and two other 

men, Jorge Galindo and Jose Sandoval, in Norfolk, Nebraska, 

on September 26, 2002. Vela pled guilty to five counts of first 

degree murder and five counts of use of a deadly weapon to 

commit a felony. He also pled guilty to counts of burglary, 

robbery, and use of a deadly weapon to commit a felony 

related to the forcible entry into a home and the theft of a 

vehicle, which occurred after the men left the bank.

The State sought the death penalty, and an aggravation hearing was held in which a jury found the existence of five statutory aggravating circumstances for each of the five murders. 

After a sentencing hearing, a three-judge panel imposed the 

death penalty for each of the five murders. We affirmed Vela’s 

sentences on direct appeal. State v. Vela, 279 Neb. 94, 777 

N.W.2d 266 (2010).
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On January 7, 2014, Vela filed an amended motion for 

postconviction relief in the district court. Because Vela was 

represented by the same counsel at trial and on direct appeal, 

this postconviction proceeding was his first opportunity to 

assert that he received ineffective assistance of counsel. Vela’s 

motion raised numerous claims of ineffective assistance 

of trial and appellate counsel. The district court overruled 

Vela’s motion for postconviction relief without an evidentiary hearing.

Vela appealed the denial to this court in case No. S-14-557. 

In a memorandum opinion, we concluded that the district court 

had used an incorrect standard to determine whether an evidentiary hearing was required on Vela’s postconviction claims. 

State v. Vela, 290 Neb. xvii (No. S-14-557, May 8, 2015). We 

therefore vacated the order and remanded the cause to the district court for reconsideration of Vela’s motion using the correct standard.

On remand, the district court filed an order on April 12, 

2016, in which it recited a standard consistent with the standard set forth in our memorandum opinion. The district court 

then considered and rejected each of Vela’s claims for postconviction relief and concluded that no evidentiary hearing was 

required on any of the claims. The court therefore overruled 

Vela’s motion for postconviction relief and his request for an 

evidentiary hearing.

Vela appeals the district court’s order overruling his motion 

for postconviction relief without an evidentiary hearing. In this 

current appeal, Vela assigns error to the district court’s rejection of six of his claims. Further details regarding those six 

claims, the facts related thereto, and the district court’s analysis of those claims are set forth in our analysis below.

ASSIGNMENTS OF ERROR

Vela claims that the district court erred when it denied 

postconviction relief without an evidentiary hearing on the following claims of ineffective assistance of trial and appellate 
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counsel: (1) Counsel deterred Vela from entering a guilty plea 

early in the case; (2) counsel failed to timely discover and 

adequately challenge the existence of a personal relationship 

between a prosecutor and the presiding juror; (3) counsel failed 

to assign error on direct appeal to the trial court’s overruling 

of Vela’s challenges based on Batson v. Kentucky, 476 U.S. 79, 

106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); (4) counsel failed to 

allow the State’s expert to conduct testing on Vela to determine 

his level of intellectual ability; (5) counsel failed to request that 

a definition of malice be included in the jury instruction setting 

forth aggravating circumstances; and (6) counsel failed to offer 

evidence to negate a finding of malice.

[1] In addition, Vela asks this court to consider a claim that, 

he asserts, presents clear error. Vela claims that he received 

ineffective assistance of counsel because counsel failed, both 

at trial and on direct appeal, to challenge the constitutionality of Nebraska’s capital sentencing statutory scheme on the 

basis that it allows a panel of judges, rather than a jury, to 

determine mitigating circumstances and to weigh aggravating 

circumstances against mitigating circumstances. Vela’s arguments in this regard are based in large part on the opinion of 

the U.S. Supreme Court in Hurst v. Florida, ___ U.S. ___, 

136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), which was filed 

January 12, 2016. Vela acknowledges that this claim was not 

raised in his motion for postconviction relief and was not 

considered by the district court. A constitutional issue not presented to or passed upon by the trial court is not appropriate 

for consideration on appeal. State v. Boche, 294 Neb. 912, 885 

N.W.2d 523 (2016). We therefore do not consider this claim 

in this appeal.

STANDARD OF REVIEW

[2] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of 

his or her constitutional rights or that the record and files 
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affirmatively show that the defendant is entitled to no relief. 

State v. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017).

ANALYSIS

Vela claims, generally, that the district court erred when 

it denied his postconviction motion without an evidentiary 

hearing and, specifically, when it rejected six of his claims. 

Therefore, before reviewing the merits of Vela’s specific 

claims, we review general standards relating to postconviction relief.

[3-6] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground 

that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. 

State v. Watson, supra. Thus, in a motion for postconviction 

relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. 

or Nebraska Constitution, causing the judgment against the 

defendant to be void or voidable. Id. A court must grant an 

evidentiary hearing to resolve the claims in a postconviction 

motion when the motion contains factual allegations which, 

if proved, constitute an infringement of the defendant’s rights 

under the Nebraska or federal Constitution. Id. If a postconviction motion alleges only conclusions of fact or law, or if 

the records and files in the case affirmatively show that the 

defendant is entitled to no relief, the court is not required to 

grant an evidentiary hearing. Id.

[7] Vela’s postconviction claims center on the alleged ineffective assistance provided by his trial counsel, who was also 

his counsel on direct appeal. When a defendant was represented both at trial and on direct appeal by the same counsel, 

the defendant’s first opportunity to assert ineffective assistance 

of counsel is in a motion for postconviction relief. State v. Ely, 

295 Neb. 607, 889 N.W.2d 377 (2017).

[8,9] A proper ineffective assistance of counsel claim alleges 

a violation of the fundamental constitutional right to a fair 
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trial. State v. Watson, supra. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the 

defendant must show that his or her counsel’s performance was 

deficient and that this deficient performance actually prejudiced the defendant’s defense. Id. To show prejudice under the 

prejudice component of the Strickland test, the defendant must 

demonstrate a reasonable probability that but for his or her 

counsel’s deficient performance, the result of the proceeding 

would have been different. Id. A reasonable probability does 

not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant 

must show a probability sufficient to undermine confidence in 

the outcome. Id.

[10-12] Vela claims that in certain respects counsel was 

ineffective on direct appeal as well as at trial. A claim of ineffective assistance of appellate counsel which could not have 

been raised on direct appeal may be raised on postconviction 

review. State v. Ely, supra. When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by 

determining whether appellate counsel actually prejudiced the 

defendant. Id. That is, courts begin by assessing the strength of 

the claim appellate counsel failed to raise. Id. Counsel’s failure 

to raise an issue on appeal could be ineffective assistance only 

if there is a reasonable probability that inclusion of the issue 

would have changed the result of the appeal. State v. Starks, 

294 Neb. 361, 883 N.W.2d 310 (2016).

With these standards in mind, we review Vela’s specific claims.

First Claim: Timing of Plea.

In his amended motion for postconviction relief, Vela 

claimed that his counsel’s performance was deficient because 

counsel failed to advise him to plead guilty to all counts at 

an earlier stage of the proceedings against him. The information against Vela was filed on October 31, 2002, and he 
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pled guilty on June 12, 2003. Vela asserted that he missed 

out on various strategic advantages because he did not plead 

guilty sooner.

First, Vela stated that on November 22, 2002, the Governor 

signed 2002 Neb. Laws, L.B. 1, which was enacted in response 

to the U.S. Supreme Court’s decision in Ring v. Arizona, 

536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). 

Vela argued that if he had pled guilty prior to the effective 

date of L.B. 1, he would not have been subject to the death 

penalty, because Nebraska had no effective death penalty at 

that time.

Second, Vela noted that even after the enactment of L.B. 1, 

which required, inter alia, that the prosecutor allege aggravating circumstances in the information charging first degree 

murder, the prosecutor in this case did not actually amend the 

information to allege aggravating circumstances until January 

29, 2003. Vela argued that if he had pled guilty prior to the 

amendment, the death penalty would not have been available, 

because the information in effect at that time did not allege 

aggravating circumstances.

Finally, Vela noted that on March 17, 2003, the body of 

Travis Lundell was found; Lundell was the victim of a separate homicide in which Vela was involved. Vela contends 

that the discovery of Lundell’s body and Vela’s implication 

in the homicide disadvantaged him in two ways in regard 

to capital sentencing. First, evidence of the Lundell homicide supported the finding of the aggravating circumstance 

set forth in Neb. Rev. Stat. § 29-2523(1)(a) (Reissue 2008), 

that he had “a substantial prior history of serious assaultive 

or terrorizing criminal activity,” upon which aggravating circumstance finding the three-judge panel placed substantial 

importance when it sentenced him to death. Second, the threejudge panel discounted the importance of Vela’s guilty plea as 

a mitigating circumstance, because the panel determined that 

one reason Vela entered his plea was because a codefendant 

had cooperated with authorities in connection with the Lundell 
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homicide. Vela argued that if he had pled guilty before Lundell’s 

body was found, evidence of the other homicide could not have 

been used either to support an aggravating circumstance or to 

diminish the mitigating effect of his guilty plea.

Vela summarized this claim by arguing that if counsel had 

advised or allowed him to plead guilty at an earlier stage of 

the proceedings, the above-enumerated events, which occurred 

prior to the entry of his plea, would not have disadvantaged 

him with respect to the imposition of the death penalty.

The district court rejected each aspect of Vela’s claim that 

counsel was ineffective with regard to the timing of his plea. 

With regard to the enactment of L.B. 1, the court noted that in 

Vela’s direct appeal, we had rejected a similar argument and 

stated that “the death penalty did not disappear from Nebraska 

law during the approximately 5-month period between the decision in Ring and the enactment of L.B. 1.” State v. Vela, 279 

Neb. 94, 109-10, 777 N.W.2d 266, 282 (2010). With regard to 

the allegation of aggravating circumstances in the information, 

the district court noted that we addressed the issue in the direct 

appeal of one of Vela’s codefendants, determining that the 

notice of aggravation was a procedural rule that did not apply 

to pending litigation and that therefore, no error stemmed from 

the fact the original information filed by the State did not contain a notice of aggravation. See State v. Galindo, 278 Neb. 

599, 774 N.W.2d 190 (2009).

With regard to the discovery of Lundell’s body, the court 

noted that it was mere speculation that Vela’s counsel knew 

about Vela’s involvement in the Lundell homicide prior to the 

discovery of the body. The court further noted that the jury 

found five aggravating circumstances in connection with each 

of the homicides in this case; the court determined that the 

four other aggravating circumstances were sufficient to support imposition of the death penalty and that it would be mere 

speculation to say that the death penalty would not have been 

imposed if not for the aggravating circumstance supported by 

evidence of the Lundell homicide.
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With regard to the importance of his plea as a mitigating 

circumstance, the court similarly determined that it was mere 

speculation as to whether counsel knew a codefendant would 

cooperate with authorities in connection with the Lundell 

homicide. The court also noted that there were other factors that diminished the value of Vela’s plea as a mitigating 

circumstance.

We agree with the district court’s reasoning. With regard 

to Vela’s first two arguments, our holdings in State v. Vela, 

supra, and State v. Galindo, supra, undermine Vela’s allegation that he would not have been subject to the death penalty 

if counsel had advised him to enter a plea at an earlier date. 

In Vela, we rejected Vela’s argument that Ring v. Arizona, 

536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), 

effectively invalidated Nebraska’s death penalty scheme and 

that Nebraska had no effective death penalty until L.B. 1 was 

enacted. We stated instead that “[b]efore, during, and after 

that period, Nebraska statutes provided that the maximum 

penalty for first degree murder was death.” State v. Vela, 279 

Neb. at 110, 777 N.W.2d at 282. In Galindo, we rejected the 

defendant’s arguments that L.B. 1 required that the original 

information contain a notice of aggravation and that because 

the original information filed against him did not contain a 

notice of aggravation, he could not be sentenced to death. 

We noted that at the time the original information was filed 

against the defendant in Galindo, the statutory scheme did 

not require such notice and that the information was amended 

after the enactment of L.B. 1. We concluded that the notice 

of aggravation was a new procedural rule that had no retroactive effect on steps taken in an action before the statute took 

effect, and we therefore found “no error stemming from the 

fact that the original information did not contain a notice 

of aggravation.” State v. Galindo, 278 Neb. at 628, 774 

N.W.2d at 219. Based on these holdings in Vela and Galindo, 

we determine that Vela failed to demonstrate any prejudice 

resulting from counsel’s failure to urge him to enter a plea 
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prior to the enactment of L.B. 1 or the filing of the amended 

information against him.

With regard to the discovery of Lundell’s body, we have 

reviewed the record and note that the sentencing panel 

relied on Vela’s killing of Lundell to establish the aggravating circumstance that he had “a substantial prior history 

of serious assaultive or terrorizing criminal activity” under 

§ 29-2523(1)(a) and that the sentencing panel stated that 

such aggravating circumstance “should be given the greatest 

weight, and it is of such a magnitude, that it alone is dispositive and outweighs all of the non-statutory mitigating circumstances.” The sentencing panel also referred to certain facts 

related to the Lundell killing as reasons it did not find remorse 

to be a mitigating factor.

The record indicates that the Lundell killing played an 

important role in the panel’s decision to impose the death 

penalty, and therefore, it is possible that the discovery of 

Lundell’s body prejudiced Vela in this action. However, Vela 

cannot show that his trial counsel’s performance was deficient for failing to advise him to enter a plea before Lundell’s 

body was discovered. As the district court noted, Vela’s claim 

required speculation that counsel knew of Vela’s involvement in Lundell’s killing before the body was discovered. A 

conclusion that counsel’s performance was deficient would 

also require counsel to somehow know that Lundell’s body 

would be discovered and when it would be discovered and 

to control the progress of the case to the extent that Vela 

would be convicted and sentenced before the body was 

discovered. Given the speculative nature of Vela’s claim 

and the hypothetical circumstances just recited, we could 

not say that counsel’s performance was deficient based on 

a failure to convince Vela to enter a plea before the body 

was discovered.

We find no merit to this claim, and we therefore conclude 

that the district court did not err when it rejected this claim 

without an evidentiary hearing.
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Second Claim: Relationship of 

Prosecutor and Juror.

In his amended motion for postconviction relief, Vela 

claimed that his counsel’s performance was deficient because 

counsel failed to timely discover and to adequately challenge 

the existence of a personal relationship between a prosecutor 

and the presiding juror in the aggravation phase of the trial. 

Vela alleged that during jury voir dire, his counsel failed to ask 

R.S., a member of the venire who would eventually become 

the presiding juror, whether he knew any of the lawyers in the 

case, and that it was not until R.S. submitted a question to the 

court during jury deliberations that the prosecutor told Vela’s 

defense counsel that R.S. was the prosecutor’s pastor. Vela 

alleged that his counsel failed to move for a mistrial or for a 

new trial on the basis of the relationship between the prosecutor and the presiding juror and on the basis of the prosecutor’s 

failure to timely disclose the relationship during jury selection. Vela further alleged that his counsel also failed to raise 

the issue on direct appeal. Vela argued that these failures of 

counsel prejudiced him, because if counsel had properly raised 

a challenge, the trial court would have declared a mistrial or 

granted a new trial or this court would have reversed his death 

sentences on appeal.

In its order denying postconviction relief, the district court 

noted that during the jury voir dire, R.S. responded to the 

court’s questions by indicating that he could take an oath to sit 

as a fair and impartial juror and that he was not aware of any 

bias or prejudice for or against either side. The district court 

noted that R.S. had similarly responded to a question by the 

prosecutor by indicating that he could listen to the evidence 

and the law given by the judge. The court further noted that 

Vela’s defense counsel had asked R.S., “‘because of the relationship you have with the community as a minister, whether 

or not you would feel uncomfortable facing your congregation 

or other members of the community if you were the one person 

who said, no, the State didn’t meet [its] burden’” and whether 
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R.S. “‘would vote your conscious [sic] regardless of what the 

rest of the pack had in mind.’” R.S. responded to defense counsel’s questions by indicating that he would not feel uncomfortable in that situation and that he would do what he felt was 

warranted. The postconviction court further noted that Vela did 

not allege that defense counsel would have struck the potential 

juror if counsel had known of the relationship nor did Vela 

allege the extent of the pastoral relationship between the juror 

and the prosecutor. The district court concluded that Vela was 

not entitled to postconviction relief on this claim.

[13] We agree that Vela’s allegations do not show prejudice as a result of counsel’s failure to challenge or strike the 

juror. The retention or rejection of a venireperson as a juror is 

a matter of discretion with the trial court, see State v. Banks, 

278 Neb. 342, 771 N.W.2d 75 (2009), and Vela alleges nothing more than the conclusion that R.S.’ pastoral relationship 

to the prosecutor indicates that R.S. could not have been fair 

and impartial. Given R.S.’ statements during voir dire that he 

could be fair and impartial, that he was not aware of any bias 

or prejudice on his own part, and that his role as a minister in 

the community would not affect his decisions as a juror, the 

court would not have abused its discretion if it had rejected a 

challenge made against R.S. Furthermore, it is mere speculation whether counsel would have used a peremptory strike on 

R.S. rather than on other potential jurors if counsel had known 

of the relationship, and it is further speculation whether a different juror would have changed the result of the trial. Vela has 

not shown prejudice with respect to this claim.

We find no merit to this claim, and we therefore conclude 

that the district court did not err when it rejected this claim 

without an evidentiary hearing.

Third Claim: Appeal of 

Batson Rulings.

In his amended motion for postconviction relief, Vela 

claimed that his counsel’s performance was deficient because 
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counsel failed to assign error on direct appeal to the trial 

court’s overruling of Vela’s Batson challenges. Vela alleged 

that during peremptory strikes, the prosecutor struck the only 

Hispanic juror and the only African-American juror on the 

venire. Vela objected to the strikes on the basis of Batson 

v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986) (holding that prosecutor’s privilege to strike individual 

jurors through peremptory challenges is subject to commands 

of Equal Protection Clause). Vela alleged that the prosecutor 

gave reasons for both strikes and that the trial court overruled 

defense counsel’s objections. Vela claimed that he was prejudiced when counsel failed to challenge these rulings on direct 

appeal because this court “would have reversed Vela’s death 

sentences and remanded the case to the district court for a new 

aggravation trial.”

In its order denying postconviction relief, the district court 

noted that after Vela had challenged the strikes and pointed out 

that the potential jurors were, respectively, the only Hispanic 

and the only African-American on the venire, the burden 

shifted to the State to articulate race-neutral bases for striking 

the jurors. The court determined that the reasons given by the 

prosecutor, which the record shows generally went to personality traits and prior prosecutions of both potential jurors, met 

this burden and that defense counsel had “‘no argument’” 

in response. The postconviction court determined that “[i]n 

the face of the race-neutral reason provided by the Madison 

County Attorney,” it was not deficient performance for appellate counsel to not raise the issue on direct appeal and that 

there was not a substantial probability that the appellate court 

would have found error in the rulings. The district court concluded that Vela was not entitled to postconviction relief on 

this claim.

[14,15] An appellate court reviews de novo the facial validity of an attorney’s race-neutral explanation for using a peremptory challenge as a question of law. State v. Oliveira-Coutinho, 

291 Neb. 294, 865 N.W.2d 740 (2015). An appellate court 
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reviews for clear error a trial court’s factual determination 

regarding whether a prosecutor’s race-neutral explanation is 

persuasive and whether the prosecutor’s use of a peremptory 

challenge was purposefully discriminatory. Id. Given these 

standards of review, the prosecutor’s race-neutral explanations, 

and the trial court’s reasons for rejecting Vela’s Batson challenges, we conclude that there was not a reasonable probability 

that inclusion of this issue in Vela’s direct appeal would have 

changed the result of the appeal. Therefore, counsel’s failure 

to raise the issue on appeal was not ineffective assistance. See 

State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016).

We find no merit to this claim, and we therefore conclude 

that the district court did not err when it rejected this claim 

without an evidentiary hearing.

Fourth Claim: Intellectual Functioning.

In his amended motion for postconviction relief, Vela generally claimed that his counsel’s performance was deficient 

because counsel failed to adequately present a case to show 

that Vela was “mentally retarded,” which would have precluded 

imposition of the death penalty. Among the specific failures of 

which Vela complained, Vela alleged that his counsel failed 

to allow the State’s expert to conduct testing on Vela to fully 

determine his level of intellectual ability.

Vela alleged that after testing showed that his IQ was 75, 

which the trial court found established “the first statutory 

element of mental retardation,” the State retained Dr. Leland 

Zlomke to further evaluate Vela. Vela alleged that Zlomke 

wanted to administer adaptive behavior testing but that Vela’s 

counsel did not allow Zlomke to administer the test. Vela 

alleged that although the trial court found the first prong of the 

test for “mental retardation” was presented based on Vela’s IQ 

of 75, the court was not warranted in finding that the second 

prong, “limitations in adaptive functioning,” was not shown. 

Vela alleged that if his counsel had allowed Zlomke to administer adaptive behavior testing, the results would have shown 
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that he had significant limitations in adaptive functioning in at 

least two of the relevant skill areas and that the court would 

have found that the second prong of the test for “mental retardation” had been established.

In its order denying postconviction relief, the district court 

rejected Vela’s claims regarding counsel’s failure to utilize 

experts to adequately establish his diminished mental capacity. 

The district court reviewed the testing done by several experts, 

including those retained at Vela’s request and those retained 

at the State’s request. The district court specifically rejected 

Vela’s allegation that his counsel had refused to allow Zlomke 

to perform adaptive behavior testing on Vela. The court cited 

to our opinion in Vela’s direct appeal and stated that the 

“record reflects that Zlomke had the opinion that Vela’s overall adaptive behavior was appropriate for his age.” The court 

concluded that this claim did not entitle Vela to postconviction relief.

In one of the portions of our opinion in Vela’s direct appeal 

that was cited by the district court, we stated:

Utilizing two third-party informants who were acquainted 

with Vela for 2 to 3 months prior to his arrest, Zlomke 

administered a standardized test known as Scales of 

Independent Behavior-Revised to assess Vela’s adaptive 

behavior. As a result of this testing, Zlomke concluded 

that while Vela had limitations in certain adaptive skill 

areas, his overall adaptive behavior was appropriate for 

his age.

State v. Vela, 279 Neb. 94, 137, 777 N.W.2d 266, 299 (2010). 

In another cited portion, we stated, “The district court’s finding that Vela failed to prove significant deficits in adaptive 

behavior is supported by substantial evidence. . . . Zlomke 

administered a modified adaptive behavior test based on interviews with Vela’s acquaintances and concluded that Vela fell 

within the average range of adaptive functioning.” Id. at 

151-52, 777 N.W.2d at 308. These portions of our opinion in 

Vela’s direct appeal show that even if Vela’s allegation that his 
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counsel prevented Zlomke from performing adaptive testing 

on Vela is true, such action by counsel did not prejudice Vela, 

because Zlomke was able to use alternative means to evaluate 

Vela’s adaptive behavior and Zlomke concluded that Vela’s 

overall adaptive behavior was appropriate.

We note for completeness that during the pendency of this 

appeal, the U.S. Supreme Court decided Moore v. Texas, 

___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017), in 

which it concluded that a state court had relied on superseded 

medical standards when it evaluated the defendant’s adaptive 

functioning as a factor in determining whether the defendant’s 

IQ of 74 warranted a finding that he was intellectually disabled. In the present case, Vela challenged the effectiveness 

of counsel based on his allegation that counsel completely 

prevented an evaluation of his adaptive functioning. Vela did 

not challenge the appropriateness of specific standards or 

methods that were used to evaluate his adaptive functioning, 

and therefore, consideration of that question is not before us 

in this appeal.

We find no merit to this claim, and we therefore conclude 

that the district court did not err when it rejected this claim 

without an evidentiary hearing.

Fifth and Sixth Claims: Definition 

of Malice and Evidence 

to Negate Malice.

In his amended motion for postconviction relief, Vela 

claimed that his counsel’s performance was deficient because 

counsel failed to request a jury instruction defining “malice” 

in connection with the aggravating circumstance of Lundell’s 

murder which served as evidence under § 29-2523(1)(a) which 

generally concerns a defendant’s prior assaultive behavior and 

terrorizing criminal activity. He also claimed that counsel’s 

performance was deficient because counsel failed to present 

evidence to negate a finding of malice with regard to such 

aggravating circumstance.
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More particularly, Vela claimed that in support of the aggravating circumstance set forth in § 29-2523(1)(a), the State 

alleged that Vela had a history of serious assaultive or terrorizing criminal activity and that it presented evidence of the 

Lundell homicide to support that allegation. Vela claimed that 

there was evidence available to defense counsel which would 

show that Vela did not kill Lundell with malice and that instead 

he was threatened and coerced by a codefendant. He also 

alleged that evidence of his diminished intellectual functioning would negate any finding of malice in connection with the 

killing of Lundell.

The district court concluded that Vela was not entitled to 

postconviction relief on either the claim related to a malice 

instruction or the claim related to evidence to negate a finding of malice. The district court stated that the aggravating 

circumstance set forth in § 29-2523(1)(a) “involves a review 

of [a] defendant’s past criminal and assaultive terrorizing history” but that “[i]t does not involve a review of whether or not 

a defendant had the mental capacity to commit other crimes or 

engage in assaultive or terrorizing activity in the past.”

The court also noted that in Vela’s direct appeal, he had 

claimed that the failure to instruct the jury on the definition 

of malice in connection with the aggravating circumstance 

was plain error. We rejected this claim in the direct appeal and 

stated that “contrary to Vela’s argument, we find no evidence 

in the record suggesting the absence of malice in the form 

of legal justification or excuse for the Lundell killing.” State 

v. Vela, 279 Neb. 94, 117, 777 N.W.2d 266, 287 (2010). We 

further stated in our opinion in his direct appeal that Vela was 

not on trial for the murder of Lundell and instead that “Vela’s 

involvement in the Lundell murder was simply the evidence 

by which the State sought to prove aggravating circumstance 

§ 29-2323(1)(a), a ‘substantial prior history of serious or 

assaultive terrorizing criminal activity’ prior to the five murders for which he had been convicted.” 279 Neb. at 118, 777 

N.W.2d at 287.
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As the district court in this postconviction action reasoned, 

even if the jury in this case had found that Vela did not kill 

Lundell with malice, there was still evidence that Vela had 

killed Lundell and was guilty of some lesser form of homicide. Regardless of the degree of homicide, such evidence 

supported a finding of the existence of the aggravating circumstance in § 29-2523(1)(a) of “a substantial prior history 

of serious or assaultive terrorizing criminal activity.” Also, 

there was no reason to think the sentencing panel would have 

given less weight to the aggravating circumstance of Lundell’s 

murder or would have decided against the death penalty if the 

Lundell killing were found to be a lesser homicide. Therefore, 

Vela’s allegations do not show how he was prejudiced by 

counsel’s alleged failures to request an instruction on malice 

and to present evidence to negate a finding of malice in connection with Lundell’s murder which served as an aggravating circumstance.

We find no merit to these claims, and we therefore conclude 

that the district court did not err when it rejected these claims 

without an evidentiary hearing.

CONCLUSION

For the reasons set forth above, we determine that with 

respect to each of Vela’s claims, the district court did not err 

when it concluded that Vela failed to allege sufficient facts to 

demonstrate a violation of his constitutional rights and that 

the record and files affirmatively show that he is entitled to 

no relief. We conclude that the district court did not err when 

it overruled Vela’s motion for postconviction relief without an 

evidentiary hearing. Accordingly, we affirm the order of the 

district court.

Affirmed

Heavican, C.J., not participati