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.
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.
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
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.
___:___.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.
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.
Postconviction: Effectiveness of Counsel: Appeal and
Error. When a defendant was represented both at
trial and on direct appeal by the same [297 Neb. 228]
counsel, the defendant's first opportunity to assert
ineffective assistance of counsel is in a motion for
Constitutional Law: Effectiveness of
Counsel. A proper ineffective assistance of counsel
claim alleges a violation of the fundamental constitutional
right to a fair trial.
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.
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.
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.
___:___. 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.
Trial: Juries. The retention or rejection of
a venireperson as a juror is a matter of discretion with the
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.
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.
from the District Court for Madison County: James G. Kube,
Neb. 229] Patrick P. Carney, of Carney Law, PC, for
Douglas J. Peterson, Attorney General, and James D. Smith for
Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.,
and Inbody, Judge.
F. Vela appeals the order of the district court for Madison
County which overruled his motion for postconvic-tion 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.
12, 2003, Vela pled guilty to the murders of Lisa Bryant,
Lola Elwood, Jo Mausbach, Evonne Turtle, 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.
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