State v. Galindo

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/01/2023 09:07 AM CDT

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

State of Nebraska, appellee, v.
Jorge Galindo, appellant.
___ N.W.2d ___

Filed September 1, 2023. No. S-21-419.

1. 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.
2. Postconviction: Judgments: Appeal and Error. Whether a claim
raised in a postconviction proceeding is procedurally barred is a ques-
tion of law which an appellate court reviews independently of the lower
court’s ruling.
3. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
4. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
5. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
6. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were known to the defend­
ant and which were or could have been litigated on direct appeal.
7. Constitutional Law: Right to Counsel: Conflict of Interest. A conflict
of interest which adversely affects a lawyer’s performance violates the
client’s Sixth Amendment right to effective assistance of counsel.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

8. Effectiveness of Counsel: Conflict of Interest: Words and Phrases.
The phrase “conflict of interest” denotes a situation in which regard
for one duty tends to lead to disregard of another; a conflict of inter-
est places a defense attorney in a situation inherently conducive to
divided loyalties.
9. Postconviction: Effectiveness of Counsel: Conflict of Interest: Proof.
In order to obtain relief in a postconviction action based upon the
alleged conflict of interest of trial counsel, the defendant must show an
actual, as opposed to an imputed, conflict of interest.
10. Postconviction. An evidentiary hearing is not required when a motion
for postconviction relief alleges only conclusions of fact or law.
11. Effectiveness of Counsel: Proof. 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.
12. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
13. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To show prejudice under the prejudice component of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
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 suf-
ficient to undermine confidence in the outcome.
14. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.

Appeal from the District Court for Madison County: Robert
R. Steinke, Judge. Affirmed.

Adam J. Sipple, of Sipple Law, and David A. Tank for
appellant.

Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
Stratman and Burns, District Judges.

Per Curiam.
Jorge Galindo appeals the district court order that overruled
his motion for postconviction relief without an evidentiary
hearing. All of Galindo’s claimed errors challenge his five
death sentences for murders committed during a bank robbery.
Upon our de novo review, we affirm.

I. BACKGROUND
On September 26, 2002, Galindo, Erick Vela, and Jose
Sandoval entered a bank in Norfolk, Nebraska. Their purpose
was to carry out robbery plans that Sandoval and Galindo had
been formulating for at least a month. In short order, they
shot and killed four bank employees and one customer, with
Galindo firing the shots that killed one of those five people.
Another customer walked in but was able to escape amid at
least two shots fired at her by Galindo. Galindo’s gunfire did
not hit the customer, but she was injured by shattered glass.
One of Galindo’s bullets struck near the drive-through win-
dow of a fast-food restaurant across the street from the bank.
Galindo and his accomplices then fled, less than a minute
after entering the bank. They had taken nothing. By the time
they were apprehended, they had broken into two residences
and stolen two vehicles; Galindo acquired the keys to the first
vehicle at gunpoint.
Later that day, Galindo, Vela, and Sandoval were appre-
hended by law enforcement officers, soon after throwing their
guns from the second vehicle. Galindo eventually led law
enforcement to the guns. He also identified a photograph of an
additional accomplice.
A jury found Galindo guilty of five counts of first degree
murder, among other offenses. Galindo was sentenced to death
for each of the five murders in accordance with the procedures
set forth in Neb. Rev. Stat. § 29-2519 et seq. (Reissue 2008).
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

Before the death sentences were pronounced, a jury found
that evidence at the aggravation hearing demonstrated five
statutory aggravating circumstances existed for each of the five
bank robbery murders: (1) the murder was committed in an
effort to conceal the identity of the perpetrator; (2) the mur-
der was especially heinous, atrocious, or cruel or manifested
exceptional depravity; (3) at the time of the murder, another
murder had been committed; (4) at the time of the murder,
Galindo knowingly created a great risk of death to at least
several persons; and (5) Galindo had a substantial prior history
of serious assaultive or terrorizing criminal activity, based on
evidence of his involvement in the murder of Travis Lundell,
committed before the bank robbery. See § 29-2523.
Regarding the Lundell murder, the State presented evi-
dence at the aggravation hearing that Galindo recruited Vela
to participate in the bank robbery and that to demonstrate
Vela was worthy of the scheme, Vela killed Lundell with
Galindo’s and Sandoval’s assistance. Cortney Barritt, who
was Galindo’s girlfriend at the time of the bank robberies,
testified that on the day Lundell died, Galindo told her that
he, Vela, and Sandoval had killed Lundell by strangula-
tion and buried his body in a location Galindo later pointed
out to Barritt. Evidence showed that Galindo eventually led
law enforcement to the location where Lundell’s body was
recovered. The State’s evidence at the aggravation hearing
also included the testimony of witnesses who were incar-
cerated in the same facility as Galindo and his accomplices
after the bank robbery: Daniel Animas, Miguel Lopez, and
Hector Abendano. Those witnesses testified that during con-
versations with Galindo, he said that he held Lundell’s legs
while Vela strangled Lundell and that he helped dispose of
Lundell’s body.
After the jury found aggravating circumstances existed,
the three-judge sentencing panel in turn conducted a hear-
ing to determine the existence of statutory and nonstatu-
tory mitigating circumstances. The sentencing panel then
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

weighed the mitigating circumstances it found against the
aggravating circumstances found by the jury and conducted a
proportionality review to determine whether the death penalty
should be imposed. Based upon this analysis, it sentenced
Galindo to death for each of the five bank robbery murders.
This court affirmed on direct appeal, where Galindo was
represented by the same counsel who represented him at trial.
See State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
In 2011, Galindo timely moved for postconviction relief, pro
se. The district court denied relief without an evidentiary hear-
ing, and Galindo appealed. Upon the State’s suggestion and
Galindo’s stipulation, we summarily vacated the judgment and
remanded the cause. Consistent with our directions on remand,
the district court appointed counsel.
In 2019, Galindo, represented by appointed counsel, filed
his first amended motion for postconviction relief. Galindo’s
postconviction claims fell into three general categories: (1)
prosecutorial misconduct claims, (2) ineffective assistance of
counsel claims, and (3) additional claims.
Many of Galindo’s postconviction claims related to the
Lundell murder, a homicide for which Galindo was not con-
victed but which, as noted, was the basis for an aggravating
circumstance supporting the death penalty for the bank rob-
bery murders. We summarize Galindo’s factual allegations in
more detail in the sections below. But broadly stated, Galindo’s
postconviction motion claimed that after his direct appeal, he
learned that at the time of his trial, the county attorney was
himself the subject of an ongoing criminal investigation that
linked him to a drug ring. The county attorney’s involvement
with the drug ring allegedly included purchasing and using
or being in the presence of illegal drugs, socializing with the
drug ring members, using them as informants, tipping them
off about investigations, protecting them from prosecution,
and doing other favors. Galindo contended that his aggrava-
tion hearing presented an opportunity for the county attor-
ney and his criminal associates to trade favors: In exchange
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

for the criminal associates’ testimony against Galindo, Galindo
claimed, the county attorney would recommend leniency in
their criminal cases.
Galindo’s postconviction motion asserted that circum-
stances suggested the county attorney directed the cell place-
ment of certain inmates, some connected to the drug ring,
with the intention of either eliciting incriminating statements
from Galindo and an accomplice or fabricating false testi-
mony against Galindo. The county attorney called some of
those inmates—Animas, Lopez, and Abendano—as witnesses
against Galindo relative to the Lundell murder. Galindo also
made detailed allegations about the outcomes of the inform­
ants’ own criminal cases, which Galindo characterized as
relatively favorable to them and at the behest of the county
attorney. Further, Galindo alleged that the county attorney
protected Abendano from federal prosecution to avoid expos-
ing the county attorney’s own misdeeds to federal scrutiny.
According to Galindo’s motion, many of these details were
either withheld from him by the State or inadequately pursued
by his counsel.
The district court denied postconviction relief for all the
claims, without an evidentiary hearing, and Galindo now
appeals that order. We recount additional relevant details in
the analysis below.

II. ASSIGNMENTS OF ERROR
Galindo assigns, condensed and restated, that the district
court erred in the following ways: (1) by denying an eviden-
tiary hearing on Galindo’s prosecutorial misconduct claims
involving (a) failing to disclose material evidence, (b) orches-
trating the solicitation from Galindo of details about Lundell’s
death, (c) knowingly introducing false evidence, and (d)
pursuing the case despite being burdened by a conflict of
interest; (2) by denying an evidentiary hearing on Galindo’s
ineffective assistance of counsel claims involving (a) forgoing
a plea disposition, (b) allowing Galindo to assist in locating
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

Lundell’s body, (c) representing Galindo despite a conflict
of interest, (d) failing to subject the Lundell allegation to
meaningful adversarial testing, (e) failing to raise on appeal
objections to jury instructions regarding the aggravating cir-
cumstance that the murder was especially heinous, atrocious,
or cruel or manifested exceptional depravity, (f) failing to
effectively pursue the mitigating circumstances of Galindo’s
youth, remorse, and drug use, and (g) failing to raise on
appeal the denial of a motion to continue to prepare a defense
to the Lundell allegation; and (3) by denying relief for other
alleged violations of Galindo’s constitutional rights involving
(a) Galindo’s age at the time of the offense, (b) Nebraska’s
three-judge sentencing procedure, (c) victim impact state-
ments, and (d) the proportionality of the death sentences.

III. STANDARD OF REVIEW
[1] 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. State v. Lotter,
311 Neb. 878, 976 N.W.2d 721 (2022).
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law which an appellate
court reviews independently of the lower court’s ruling. Id.

IV. ANALYSIS
1. Overview
Viewed from afar, Galindo’s claims for postconviction relief
are familiar. He generally asserts the district court erred in
denying postconviction relief without first conducting an evi-
dentiary hearing on multiple claims of prosecutorial miscon-
duct, ineffective assistance of counsel, and other alleged vio-
lations of his constitutional rights. But the task of resolving
each discrete claim requires us to work our way through
a web of factual allegations and legal arguments raised in
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

his 145-page motion for postconviction relief. Many of those
allegations pertain to what Galindo considers “[t]he most
important contested factual issue in this case”: the Lundell
murder. Brief for appellant at 27. As we have noted, Galindo
was not convicted and sentenced for Lundell’s murder, but evi-
dence of Galindo’s involvement in that crime prior to the bank
robbery led to the jury’s finding of the aggravating circum-
stance that Galindo had a substantial prior history of serious
assaultive or terrorizing criminal activity. See § 29-2523(1)(a).
Prominently featured in this appeal is Galindo’s contention that
without this aggravator, he would not have been sentenced to
death for the bank robbery murders.
We ultimately conclude that the district court did not err in
denying postconviction relief without an evidentiary hearing.
We first dispose of claimed constitutional violations that are
procedurally barred. We then address Galindo’s claim of pros-
ecutorial misconduct by the denial of his right to counsel and
conclude that it was insufficiently alleged. We go on to con-
clude that also insufficiently alleged were Galindo’s claims of
ineffective assistance of counsel regarding an alleged conflict
of interest and a plea disposition. Regarding ineffective assist­
ance of counsel claims about mitigators related to Galindo’s
drug use and his age, we determine that the record affirma-
tively shows he is entitled to no postconviction relief. We next
assess Galindo’s remaining claims of ineffective assist­ance of
counsel and his claims that the State withheld material evi-
dence, and we determine that he cannot make the requisite
showing of prejudice. Finally, we address Galindo’s remaining
claims of prosecutorial misconduct. We conclude that Galindo
has failed to show that his claim of a prosecutorial conflict of
interest entitled him to an evidentiary hearing, because any
such conflict, though worthy of condemnation if true, was
harmless beyond a reasonable doubt. We likewise conclude he
is not entitled to an evidentiary hearing on his claim that the
State knowingly relied on false testimony, because any such
testimony was not material.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

2. General Legal Principles
[3,4] Before turning to Galindo’s specific claims, we briefly
review the general legal principles that govern appeals from
the denial of postconviction relief without an evidentiary
hearing. In Nebraska, postconviction relief is a very narrow
category of relief, available only to remedy prejudicial consti-
tutional violations that render the judgment void or voidable.
State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022). An evi-
dentiary hearing is not required on a motion for postconviction
relief when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. State v. Lessley,
312 Neb. 316, 978 N.W.2d 620 (2022). “In addition to the
substantive rules governing postconviction relief, there are
procedural rules which can bar postconviction relief regardless
of the merits of a particular claim.” State v. Lotter, 311 Neb. at
887, 976 N.W.2d at 730.
3. Claims Conceded as
Procedurally Barred
We begin by dispensing with several postconviction claims
that are procedurally barred. Galindo’s motion for postconvic-
tion relief claimed that his death sentences involved violations
of his constitutional rights stemming from an alleged absolute
bar on the death penalty due to his chronological age at the
time of the offenses, Nebraska’s three-judge sentencing proce-
dure, victim impact statements in the presentence report, and
the alleged disproportionality of the death sentences. The dis-
trict court denied each of these claims without an evidentiary
hearing. On appeal, Galindo concedes that postconviction
relief for these claims would ordinarily be unavailable because
they were or could have been litigated on direct appeal, but he
nonetheless asks us to review them on the merits. We decline
to do so.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

[5,6] The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor-
tunity. State v. Lessley, supra. We have consistently said that
a motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which
were or could have been litigated on direct appeal. Id. Our
review of the record confirms, as Galindo readily admits in his
appellate brief, that the claims listed above were or could have
been litigated on direct appeal. See State v. Galindo, 278 Neb.
599, 774 N.W.2d 190 (2009). Galindo suggests that despite
this, we should review these claims on the merits because they
arise in a capital case involving allegations that his counsel
at trial and on appeal was burdened by a conflict of interest
and rendered other forms of ineffective assistance. Galindo
cites no authority for this position, and we are unpersuaded.
We have previously applied procedural bars in capital cases.
See, e.g., State v. Lotter, supra; State v. Ryan, 257 Neb. 635,
601 N.W.2d 473 (1999). And Galindo has not asserted that his
counsel was ineffective in not raising the claims listed above
on direct appeal.

4. Prosecutorial Misconduct:
Right to Counsel
Once adversary proceedings have commenced against an
individual, that individual has a Sixth Amendment right to
legal representation during interrogation by the government.
Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed.
2d 424 (1977). In a line of decisions beginning with Massiah
v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed.
2d 246 (1964), the U.S. Supreme Court has repeatedly held
that the government violates this right when it deliberately
elicits incriminating statements from the defendant in the
absence of counsel after the defendant has been charged. See,
Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L.
Ed. 2d 364 (1986); Maine v. Moulton, 474 U.S. 159, 106 S.
Ct. 477, 88 L. Ed. 2d 481 (1985); United States v. Henry, 447
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). This
may occur when information is obtained via a government
informant, but “the Sixth Amendment is not violated when-
ever—by luck or happenstance—the State obtains incriminat-
ing statements from the accused after the right to counsel has
attached.” Maine v. Moulton, 474 U.S. at 176. “[A] defendant
must demonstrate that the [government] and [its] informant
took some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.” Kuhlmann v.
Wilson, 477 U.S. at 459. This right to be free from uncoun-
seled interrogation is infringed at the time of the interroga-
tion, not when the incriminating statements are admitted into
evidence, but the deprivation of the right to counsel demands
the remedy of exclusion from the prosecution’s case in chief.
Kansas v. Ventris, 556 U.S. 586, 129 S. Ct. 1841, 173 L. Ed.
2d 801 (2009).
Relying on the Massiah line of decisions, Galindo assigns
that the district court erred in not holding an evidentiary
hearing on his postconviction claim that his right to coun-
sel was violated when the State “orchestrat[ed] the solicita-
tion from Galindo of statements regarding the Lundell death
while Galindo was jailed.” Brief for appellant at 3. Because
Galindo’s postconviction motion either misapplies this right to
counsel doctrine or fails to make sufficient factual allegations
to support one of its elements, we are unconvinced.
In the simplest terms, Galindo’s postconviction motion
claimed that after trial, he learned facts suggesting that tes-
timony by Animas, Lopez, and Abendano about Galindo’s
involvement in the Lundell murder resulted from a plan, put
into motion by the county attorney during Galindo’s pretrial
incarceration, that violated Galindo’s right to counsel. The
details about that alleged plan are rather complicated.
Galindo’s postconviction motion posited that the informants’
testimony in his case arose from deals they had made with
the county attorney to obtain relatively favorable disposi-
tions in their own criminal cases. Galindo alleged, as we have
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

generally noted, that the county attorney was involved with a
drug ring that included Jesse Padilla, Lopez, and Abendano,
among others. These three and Animas were incarcerated in the
same facility as Galindo following the bank robbery.
Galindo’s postconviction motion claimed that to facilitate
the informants’ assistance to the county attorney, at vari-
ous times and in various combinations, jail officials housed
the informants with each other, with Galindo, and with oth-
ers who had personal knowledge of the Lundell murder.
According to Galindo, these housing placements both contra-
vened internal jail procedures and, it could be inferred from
this and the drug ring associations, occurred at the direction
of the county attorney. As further support for this inference,
Galindo alleged that in 2017, the jail administrator “became
extremely defensive and agitated” when Galindo’s defense
team asked him about housing placements, and that without
prompting, the jail administrator “emphatically denied” that
the county attorney, whom the jail administrator identified as
a friend, directed the jail administrator to place any particular
inmates together.
Galindo further specifically claimed that according to fed-
eral investigative reports, a fellow inmate of Abendano’s
reported that Abendano had said the county attorney offered
to help with Abendano’s criminal charges if Abendano pro-
vided information about Galindo and Vela and if Abendano
agreed not to disclose to federal authorities his drug-ring
history with the county attorney. Galindo asserted that after
Abendano told police that Galindo admitted he was involved
in the Lundell murder, the county attorney told Sandoval that
the county attorney would be getting “‘good information’”
about Galindo and Vela “‘in the next couple of days.’” Six
days later, Galindo alleged, Lopez told law enforcement that
Galindo had admitted his involvement in Lundell’s death.
Moreover, Galindo’s motion for postconviction relief cited
a confidential witness who reported having observed the
county attorney with a list of people involved with drugs; the
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

county attorney allegedly told the confidential witness that the
people on the list could possibly be used as witnesses against
Galindo and his accomplices.
Galindo’s postconviction motion concluded that as a whole,
these allegations “strongly support[ed] an inference” that the
county attorney encouraged or specifically instructed mul-
tiple jailhouse informants to elicit incriminating statements
from Galindo and/or Vela outside the presence of counsel,
and/or to fabricate false testimony against Galindo regarding
the Lundell murder.
The district court denied postconviction relief for this claim
without an evidentiary hearing.
Now on appeal, Galindo asserts that his factual allegations
regarding the jail cell assignments, in combination with the
motives he attributed to the county attorney and the informants
in the drug ring, warranted an evidentiary hearing. Galindo
argues that the nonconforming cell assignments “simply could
not have occurred by accident or happenstance.” Brief for
appellant at 58. In keeping with his postconviction motion,
he concludes:
These facts support an inference [that the county attor-
ney] intentionally engaged Abendano to elicit incriminat-
ing statements from Galindo. And since Vela had knowl-
edge of how Lundell was killed, Padilla and Abendano’s
placement in Vela’s cell provided them the opportunity to
gain this knowledge from Vela and then elicit (or falsely
attribute) incriminating statements regarding the death
from Galindo.
These allegations clearly warrant an evidentiary hear-
ing regarding whether [the county attorney] utilized
Abendano and Padilla to deliberately elicit incriminat-
ing statements from Vela and to repeat Vela’s statements
to other inmates, . . . so that the other inmates, along
with Abendano, could seek leniency or other reward in
exchange for their testimony.
Id. at 58-59.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

To the extent Galindo claims a violation of his right to
counsel based on Vela’s uncounseled statements, his claim
fails. Sixth Amendment rights are personal. See Pointer v.
Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
Even if Vela made incriminating statements while deprived of
legal representation, Galindo does not have standing to mount
a challenge based on Vela’s right to counsel. See, Jefferson v.
State, 358 Ga. App. 297, 855 S.E.2d 43 (2021); People v. Velez,
155 A.D.2d 708, 548 N.Y.S.2d 272 (1989).
Neither do we believe an evidentiary hearing was required
based on Galindo’s assertion that the county attorney orches-
trated events so that informants would have access to Galindo
to elicit incriminating statements from him or to falsely
attribute incriminating statements to him. Even if we were
to read the constellation of inferences suggested by Galindo
to reveal a plan to obtain incriminating statements from him
in his counsel’s absence, Galindo’s postconviction motion
omits specific factual allegations of an important element of
a Sixth Amendment right to counsel claim: how the state-
ments are obtained once an informant has gained access to
the defendant.
We understand Galindo to rely primarily on United States
v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115
(1980). In Henry, government agents engaged an informant
serving a term in the same jail as several federal prisoners,
including the defendant, who was incarcerated pending trial
on bank robbery charges. Authorities “told [the informant] to
be alert to any statements made by the federal prisoners, but
not to initiate any conversation with or question [the defend­
ant] regarding the bank robbery.” Id., 447 U.S. at 266. The
informant and the defendant engaged in “‘some conversa-
tions’” during which the defendant told the informant about
the robbery. Id., 447 U.S. at 271. The informant testified about
these conversations, and the defendant was convicted. The
U.S. Supreme Court held that the government had “‘deliber-
ately elicited’” incriminating statements from the defendant
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. GALINDO
Cite as 315 Neb. 1

within the meaning of Massiah by virtue of the govern-
ment’s “intentionally creating a situation likely to induce [the
defend­ant] to make incriminating statements.” United States v.
Henry, 447 U.S. at 270, 274. The Henry Court reasoned that
instructions not to question the defendant neither disproved
that the government intended to obtain incriminating state-
ments nor disproved that the government contemplated that its
informant would take affirmative action to obtain incriminat-
ing statements.
As one commentator has articulated:
A . . . question which may be asked about Henry is
whether it extends Massiah so as to include both “active”
and “passive” efforts to obtain incriminating evidence
from a defendant. . . . [T]he majority did not believe it
was dealing with a “passive” type of case. Moreover, the
majority cautioned it was not “called upon to pass on the
situation where an informant is placed in close proximity
but makes no effort to stimulate conversations about the
crime charged.” Yet the majority’s loose language about
the government being barred from “intentionally creat-
ing a situation likely to induce [the defendant] to make
incriminating statements” could be read as covering the
“passive” type of case as well.
2 Wayne R. LaFave et al., Criminal Procedure § 6.4(g) at 774
(4th ed. 2015).
But the U.S. Supreme Court subsequently clarified in
Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S. Ct. 2616, 91 L.
Ed. 2d 364 (1986), another “jail plant” case, that “[a] defend­
ant must demonstrate that the [government] and [its] inform­
ant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks.” “[T]he
primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equiva-
lent of direct police interrogation,” and “a defendant does not
make out a violation of that right simply by showing that an
informant, either through prior arrangement or voluntarily,
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reported his incriminating statements to the police.” Kuhlmann
v. Wilson, 477 U.S. at 459. The Kuhlmann Court held that the
incriminating statements in that case had not been “‘delib-
erately elicited,’” because although the cellmate remarked
that the defendant’s initial statements denying involvement
in the crime “‘didn’t sound too good,’” it was not until after
a visit from a family member who expressed concern about
the defendant’s involvement in a murder that the defendant
changed his story and made incriminating statements to the
cellmate. 477 U.S. at 460.
Galindo argues, apparently relying on Henry, that the alleg-
edly intentional placement of inmates “constitutes an addi-
tional investigative tactic beyond ‘merely listening.’” Brief
for appellant at 58. We cannot agree. Galindo asserts that the
other inmates elicited incriminating statements from him, but
he makes no specific allegations about what techniques the
informants employed that made their efforts active rather than
passive. Claiming that the statements were elicited is merely a
conclusion of fact without supporting facts to show a Massiah
violation and cannot be the basis for an evidentiary hearing.
Because Galindo has not alleged how his interactions with
the informants involved some manner of interrogation beyond
merely listening, he has not alleged facts sufficient to support
this claim.

5. Ineffective Assistance of Counsel:
Conflict of Interest
[7] A conflict of interest which adversely affects a lawyer’s
performance violates the client’s Sixth Amendment right to
effective assistance of counsel. State v. Jackson, 275 Neb. 434,
747 N.W.2d 418 (2008). On appeal, Galindo contends that the
district court erred in denying an evidentiary hearing on his
postconviction claim that his defense counsel was burdened
by a conflict of interest. We determine this claim was insuf-
ficiently alleged.
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Galindo’s postconviction motion alleged that a paralegal for
his trial counsel was romantically involved with an attorney
who represented jailhouse informants. The informants included
Padilla, Lopez, and Abendano. Lopez and Abendano testi-
fied at the aggravation hearing regarding the Lundell murder,
and their charged offenses were unconnected to Galindo’s.
Galindo’s aggravation hearing occurred in December 2003.
Galindo alleged that the romantic relationship between the
paralegal and the attorney spanned from May or June 2004 to
early February 2005.
According to the postconviction motion, the paralegal
actively participated in trial preparation and had access to
all aspects of Galindo’s file, which contained attorney-client
conference notes. This, Galindo claimed, created an “oppor-
tunity” for the paralegal to share the information with “oth-
ers.” Galindo alleged that the paralegal had admitted that she
sometimes shared with the attorney privileged information she
obtained from one or more of her employer’s clients; this infor-
mation suggested the attorney was under investigation. Galindo
alleged the attorney was ultimately convicted on drug charges
due to his involvement with the same drug distribution ring
that included witnesses at Galindo’s aggravation hearing and
the county attorney. Galindo alleged that Abendano had told
a fellow inmate that someone in the drug ring had distributed
methamphetamine to Galindo, who shared it with one of the
bank robbery accomplices.
Galindo’s motion concluded that the paralegal’s involvement
in the case adversely affected his counsel’s performance. The
district court rejected this claim for relief because it lacked
specific facts.
On appeal, although Galindo concedes that the romantic
relationship “may have occurred subsequent to [his] trial,”
he argues that his motion supported a reasonable inference
that the paralegal breached duties of loyalty and confidential-
ity owed to him. Brief for appellant at 70. He contends that
an evidentiary hearing is necessary to address whether the
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paralegal disclosed his confidential communications and trial
strategy to the attorney and whether defense counsel’s employ-
ment of the paralegal otherwise prejudiced Galindo’s right to
effective assistance of counsel.
[8-10] We are not convinced that Galindo’s motion for
postconviction relief made allegations of a conflict of interest
sufficient to justify an evidentiary hearing. The phrase “con-
flict of interest” denotes a situation in which regard for one
duty tends to lead to disregard of another; a conflict of interest
places a defense attorney in a situation inherently conducive to
divided loyalties. State v. Reddick, 230 Neb. 218, 430 N.W.2d
542 (1988). In order to obtain relief in a postconviction action
based upon the alleged conflict of interest of trial counsel, the
defendant must show an actual, as opposed to an imputed,
conflict of interest. State v. Harris, 274 Neb. 40, 735 N.W.2d
774 (2007). A speculative or hypothetical conflict of interest
cannot support overturning a conviction because of ineffective
assistance of counsel. See State v. Vanness, 300 Neb. 159, 912
N.W.2d 736 (2018). See, also, State v. Marchese, 245 Neb.
975, 515 N.W.2d 670 (1994) (mere possibility of lawyer’s
conflict of interest is insufficient to impugn criminal convic-
tion). Similarly, an evidentiary hearing is not required when
the motion for postconviction relief alleges only conclusions
of fact or law. See State v. Cook, 290 Neb. 381, 860 N.W.2d
408 (2015).
While Galindo asserts that the paralegal behaved in a way
we cannot condone, we agree with the district court that
Galindo’s allegation is “short on facts and long on conclusions
and speculation of any actual conflict of interest involving the
paralegal sharing any confidential information about Galindo’s
case with anyone.” Standing alone, Galindo’s assertion that
the paralegal had, at some point, shared information about
a case or cases with an attorney, who represented witnesses
at Galindo’s aggravation hearing in matters unrelated to the
charges against Galindo, about an investigation of that attor-
ney’s role in a drug distribution ring of which Galindo was
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not a member, even if true, does not allege an infringement of
Galindo’s right to effective assistance of counsel. At most, he
alleged the remote possibility of an imputed conflict of inter-
est, not an actual conflict of interest on the part of his counsel
warranting postconviction relief. See State v. Harris, supra.
But see Neb. Ct. R. of Prof. Cond. § 3-501.10, comment 4
(paralegal’s conflict of interest prohibiting involvement in
case is not imputed to attorney). We discern no claim of “any-
thing more than a speculative or hypothetical conflict of inter-
est” on the part of the paralegal. See State v. Sandoval, 280
Neb. 309, 347, 788 N.W.2d 172, 208 (2010).
Because Galindo has failed to allege any facts relating to
this claimed conflict of interest that would render the judgment
void or voidable, we conclude that the district court did not err
in denying him an evidentiary hearing for this claim. See State
v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).

6. Ineffective Assistance of Counsel:
Plea Disposition
Galindo argues on appeal that the district court erred in
declining to grant an evidentiary hearing on his postconvic-
tion claim that his trial counsel was ineffective for not pursu-
ing a guilty plea, a strategy that Galindo asserted would have
resulted in life sentences for the homicides. Galindo based
this claim in part on Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428, 153 L. Ed. 2d 556 (2002), which effectively invalidated
Nebraska’s statutory capital sentencing procedure that permit-
ted a judicial panel rather than a jury to determine whether
aggravating circumstances existed. Galindo asserted that Ring
created a window of time in his case to enter life-saving pleas
before revised procedures took effect and that his counsel was
ineffective in not seizing the opportunity. As we will explain,
because this claim hinges on the presiding judge’s alleged
misapplication of Ring in another case, Galindo has failed to
assert facts showing that his trial counsel acted ineffectively in
forgoing a plea disposition.
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As we explained in Galindo’s direct appeal, the release of
Ring in 2002 prompted changes to Nebraska’s death penalty
procedure that played a part in Galindo’s case:
Now, as at the time of the bank robbery, a defendant
found guilty of first degree murder can be sentenced to
death only if one of the enumerated aggravating circum-
stances is found. [§ 29-2519.] Without any aggravating
circumstances, the sentence is life imprisonment. [Id.]
The ultimate decision of whether to impose the death pen-
alty when the defendant is found “death eligible” depends
on whether the aggravating circumstances outweigh miti-
gating circumstances, as well as a proportionality review.
[See § 29-2522.] At the time of the bank robbery, the
statutory scheme committed to the judge, and not a jury,
both the capital sentencing factfinding of any aggravating
and mitigating circumstances and the ultimate sentencing
decision. [§ 29-2522.] Approximately 3 months before
the bank robbery took place, however, the U.S. Supreme
Court had concluded in Ring that the Sixth Amendment
entitled capital defendants to a jury determination of any
fact on which the Legislature conditions an increase in
their maximum punishment.
After the robbery, but before Galindo’s trial, the
Legislature enacted [2002 Neb. Laws,] L.B. 1, which did
not change the nature of the statutory aggravating cir-
cumstances that make a defendant death eligible. But, it
provided that the existence of any of these circumstances
must be determined by a jury, instead of a judge, unless
this right is waived by the defendant.
State v. Galindo, 278 Neb. 599, 613-14, 774 N.W.2d 190, 209-
10 (2009). The State’s initial information, charging Galindo
with five counts of first degree murder, among other offenses,
was filed before the Legislature enacted 2002 Neb. Laws,
L.B. 1, and did not seek the death penalty. But when L.B.
1 took effect, the State immediately initiated procedures to
pursue the death penalty by filing an amended information
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with notice of aggravating circumstances. See Neb. Rev. Stat.
§ 29-1603 (Reissue 2008). Galindo was tried and sentenced
accordingly.
In a pretrial motion to quash, Galindo’s counsel argued
there was no enforceable death penalty at the time the crimes
were committed, after Ring and prior to L.B. 1, and that the
death penalty could not be applied retroactively; the judge
who presided over the guilt phase of the proceedings rejected
this argument. Galindo’s counsel made the same argument
before the sentencing panel, again without success. On direct
appeal, we affirmed the sentencing panel’s ruling, finding
no merit to Galindo’s position that there was no death pen-
alty in effect when the crimes were committed. See State v.
Galindo, supra.
Galindo’s postconviction motion now at issue also invoked
Ring, this time in the context of an ineffective assistance of
counsel allegation. The postconviction motion claimed that
Ring and several other factors made the weeks between the
initial information and the enactment of L.B. 1 an opportune
time to enter pleas to avoid the death penalty. Galindo alleged
that during that period, the presiding judge in his case ruled
in an unrelated first degree murder case that, in Galindo’s
words, “based on the decision in Ring[,] the death penalty
could not be applied . . . if sought by the State.” Galindo
asserted that on the same day as that ruling, the county
attorney in Galindo’s case sent a letter to Galindo’s counsel
suggesting the county attorney might not pursue the death
penalty, considering Galindo’s role in the crimes compared
to his accomplices’ roles. Galindo alleged that at that time,
he did not oppose pleading guilty to the charges, for which
there was no feasible defense, and had entrusted his counsel
with the decision whether to do so. Galindo claimed that
although his counsel referred to the presiding judge’s ruling
in the unrelated case in subsequent unidentified pleadings in
Galindo’s case, his counsel did not advise him to plead guilty
or otherwise pursue such pleas. Given all this, Galindo’s
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motion claimed his trial counsel was ineffective in not facili-
tating guilty pleas prior to the enactment of L.B. 1, pleas that
Galindo asserted had a reasonable probability of resulting in
life sentences.
The district court, noting that this court had rejected the
argument that there was no death penalty in effect during the
months prior to L.B. 1, found that Galindo based this postcon-
viction claim on a speculative and legally unviable strategy
and denied relief without an evidentiary hearing. Galindo now
challenges this ruling on appeal.
As the district court observed, we have found no merit
to the contention that between the release of Ring and the
revised procedures in L.B. 1, there was no death penalty in
effect in Nebraska. See State v. Galindo, 278 Neb. 599, 774
N.W.2d 190 (2009). See, also, State v. Vela (Vela II), 297
Neb. 227, 900 N.W.2d 8 (2017); State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010); State v. Vela (Vela I), 279 Neb.
94, 777 N.W.2d 266 (2010); State v. Mata, 275 Neb. 1, 745
N.W.2d 229 (2008). In so holding, we reasoned that L.B.
1 changed only the procedures for determining whether to
impose the death penalty, rather than the substance, because
L.B. 1 did not alter the quantum of punishment for first
degree murder. See id. In Vela I, we explained 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. Before, during, and after that
period, Nebraska statutes provided that the maximum penalty
for first degree murder was death.” 279 Neb. at 109-10, 777
N.W.2d at 282.
In this appeal, Galindo does not dispute that the death pen-
alty remained in effect between the release of Ring and L.B.
1’s enactment, but he asserts that his postconviction claim pre-
sented a different issue:
Galindo’s claim does not depend on whether there was
a death penalty prior to passage of L.B. 1, but rather
whether he received adequate counsel regarding the
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available opportunity to plead guilty in front of a judge
unwilling to impose the death penalty prior to the bill’s
passage, just as another Madison County defendant . . .
did when Galindo’s case was pending.
Brief for appellant at 67. Galindo characterizes such a plea as
a “viable strategy to save his life.” Id. at 68.
[11] Certainly, the right to effective assistance of counsel
extends to the plea context, see, e.g., State v. Blaha, 303
Neb. 415, 929 N.W.2d 494 (2019), but the facts alleged in
Galindo’s motion for postconviction relief do not demonstrate
a violation of this right. 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 defi-
cient and that this deficient performance actually prejudiced
the defendant’s defense. State v. Lessley, 312 Neb. 316, 978
N.W.2d 620 (2022). Galindo’s alleged facts failed to satisfy
either prong of this test.
[12] We do not view counsel’s representation here to be
deficient as alleged by Galindo. To show that counsel’s per-
formance was deficient, the defendant must show it did not
equal that of a lawyer with ordinary training and skill in
criminal law. Id. In other words, the defendant must show
that counsel’s representation fell below an objective standard
of reasonableness. See State v. Wagner, 271 Neb. 253, 710
N.W.2d 627 (2006), citing Strickland v. Washington, supra.
The entire ineffectiveness analysis is viewed with a strong
presumption that counsel’s actions were reasonable. See State
v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021). And we
have said that “trial strategy based on a misunderstanding
of the law is not reasonable.” See State v. Sidzyik, 292 Neb.
263, 269, 871 N.W.2d 803, 808 (2015). Galindo’s allegations
suggest that the presiding judge’s ruling in the unrelated case
was founded on a misapplication of Ring and that his coun-
sel should have pursued the same misapplication in his case
through precisely timed guilty pleas. But it would not have
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been objectively reasonable for Galindo’s trial counsel to
advise Galindo to plead guilty based on the presiding judge’s
mistaken notion that the death penalty could not apply in an
unrelated case, with the expectation that the presiding judge
would make the same ruling in Galindo’s case. Galindo, more-
over, overlooks the consequences of pleading to the charges
that his counsel avoided. Had he entered such pleas, he would
have waived all defenses to the charges, some of which he
later raised in his motion to quash, while forgoing the benefits
of a trial. See State v. Thomas, 311 Neb. 989, 977 N.W.2d
258 (2022). Given these considerations, it is arguable that
entering a plea would have reflected deficient performance by
Galindo’s counsel.
[13] Even if we were to accept that Galindo’s trial counsel
performed deficiently as he contends, Galindo’s ineffective
assistance of counsel claim would still fail because he did
not allege facts that show prejudice resulted. To show preju-
dice 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. State v. Ellis, 311
Neb. 862, 975 N.W.2d 530 (2022). A reasonable probability
does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine
confidence in the outcome. Id. “‘The likelihood of a differ-
ent result must be substantial, not just conceivable.’” State v.
Newman, 310 Neb. 463, 472-73, 966 N.W.2d 860, 869 (2021),
quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011). To succeed, a claim of prejudice
cannot be merely speculative. See State v. Gibbs, 238 Neb.
268, 470 N.W.2d 558 (1991). See, also, State v. McGurk,
3 Neb. App. 778, 532 N.W.2d 354 (1995). Galindo’s claim
appears to depend on the presiding judge’s continued misap-
plication of Ring, but even assuming the presiding judge mis-
applied Ring in the unrelated case as Galindo suggests, we do
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not discern a reasonable probability that the presiding judge
would have continued in such error. In fact, a few months
after the allegedly ideal window to plea had passed, the presid-
ing judge’s ruling on Galindo’s motion to quash rejected the
notion that Ring precluded the application of the death penalty
in Galindo’s case. Rather than alleging facts showing a reason-
able probability that guilty pleas would have resulted in life
sentences, Galindo can offer only speculation.
For these reasons, we conclude that Galindo did not allege
facts sufficient to support this claim of ineffective assistance
of counsel.

7. Ineffective Assistance of Counsel:
Drug Use as Mitigator
Galindo assigns that the district court wrongly denied him
an evidentiary hearing on his claim that his trial counsel
provided ineffective assistance during the mitigation hearing
on the issue of his drug use. We reject this claim because
the record affirmatively shows that Galindo is entitled to
no relief. See State v. Lessley, 312 Neb. 316, 978 N.W.2d
620 (2022).
At the mitigation hearing, Galindo’s counsel presented
evidence about Galindo’s methamphetamine use during the
months preceding the deadly bank robbery. This included the
testimony of Claudia Solis, who had used methamphetamine
with Galindo at Barritt’s residence. She testified she had seen
Galindo use methamphetamine weekly at Barritt’s home during
a period beginning about 4 months before the bank robbery
and ending about 1½ months before the bank robbery. She
testified that between that period and the bank robbery, her
contact with Galindo increased and his methamphetamine use
continued, but she did not observe Galindo during the days
immediately preceding the bank robbery.
Solis testified about the effect methamphetamine had on
Galindo. Solis had observed Galindo to be awake several days
at a time due to his methamphetamine use. Solis recounted
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that they would not go out when they used methamphetamine
and that Galindo would play video games and talk. Upon
questioning by the State, she affirmed that when Galindo used
methamphetamine, he became “mellow, happy, giggly,” but
she also testified to his “[l]ooking like when they would look
out the window constantly or any little noise.” Solis recalled
occasions when Barritt needed Galindo to care for their chil-
dren after he had been up all night using methamphetamine,
and “he was just antsy, he couldn’t do it.” Solis denied seeing
Galindo get “totally out of control” due to methamphetamine
use. She testified that Barritt told her about a time Galindo
held a knife to Barritt’s throat, but Solis did not know whether
Galindo was under the influence of methamphetamine at the
time. Galindo’s counsel also presented the deposition tes-
timony of Barritt, in which she said that Galindo became
physically abusive toward her after he became a methamphet-
amine user.
Galindo’s counsel called Carlos Flores to testify. He stated
that he used methamphetamine with Galindo almost daily
during the weeks preceding the bank robbery. He testified
that on more than one occasion, that use involved staying
up for 2 or 3 days at a time, or perhaps more, continuously
consuming methamphetamine. Flores testified that he was not
with Galindo during the 2 or 3 days immediately prior to the
bank robbery.
Marco Quijano testified on behalf of the defense that from
1998 to 2001, he binged on methamphetamine with Galindo
nearly every weekend. Quijano recalled that on approximately
five occasions, he and Galindo stayed up continuously using
methamphetamine for 6 days.
Galindo’s counsel presented the deposition testimony of
Destiny Williams. Williams identified Galindo as a heavy meth-
amphetamine user and an alcoholic. She testified to speaking
with Galindo after the bank robbery and to Galindo’s saying he
was “fucked up” or “[m]essed up” during the robbery and did
not remember much about it.
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Defense counsel also presented expert testimony by Dr.
Alex Stalcup, the medical director of a drug treatment cen-
ter. Stalcup reviewed reports supplied to him by a mitigation
specialist and was present for the testimony of Solis, Flores,
and Quijano. Based on all this, he opined that at the time of
the bank robbery, Galindo was a methamphetamine addict
who was under the influence of the drug and sleep deprived.
He explained that as an addict, Galindo’s drug use was out of
control and his executive functioning and ability to reason,
reflect, weigh consequences, and consider right and wrong
were compromised.
Galindo’s counsel elicited testimony from Stalcup that meth-
amphetamine users can become fearful, paranoid, and hyper-
vigilant and may experience the illusion that they are brilliant
and functioning when in fact they are chaotic. He testified that
once binge behavior is established, as it had been for Galindo
based on others’ testimony, it becomes the predominant pattern
of use of a methamphetamine addict. Galindo’s counsel pre-
sented the telephone records from the residence where Galindo
was staying before the bank robbery, and they indicated late-
night telephone calls from the residence during the 2 or 3 days
prior to the bank robbery. According to Stalcup, this, along
with testimony that Galindo had a ready supply of metham-
phetamine, supported his opinion that Galindo was awake dur-
ing that period, using methamphetamine.
Stalcup testified that the fact that Galindo engaged in
planning and preparation for the bank robbery strengthened
his opinion because methamphetamine addicts are capable
of spending days making a detailed plan. He testified that
Galindo’s firing of multiple gunshots during the bank robbery
was consistent with someone in a frightened state. Stalcup
acknowledged that he was not aware of reports that Galindo
was cooperative and appeared rational after his arrest, but
Stalcup testified that this would not be inconsistent with
Galindo’s having used methamphetamine for several days
before the bank robbery, noting that behavior can be affected
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by the level of environmental stimulation. He explained that
if the ambient stimulation is relatively low, an individual with
methamphetamine intoxication can maintain linear and coher-
ent thought.
The State presented the testimony of several law enforce-
ment officers who observed that Galindo did not appear to be
on drugs when he was arrested a few hours after the bank rob-
bery or during the subsequent days.
The sentencing panel concluded that Galindo’s drug use
did not impair his ability to appreciate the wrongfulness of his
conduct or his ability to conform his conduct to the require-
ments of the law, and the panel therefore did not apply the
statutory mitigating circumstance set forth in § 29-2523(2)(g).
In so finding, it explicitly discredited Stalcup’s opinion. The
sentencing panel referred to the State’s evidence that Galindo
helped plan the bank robbery and took deliberate action while
carrying it out and fleeing. It also noted that the law enforce-
ment officers who interacted with Galindo after his arrest
testified that Galindo exhibited normal behavior with no signs
of impairment. The sentencing panel’s order did not mention
Galindo’s drug use in discussing nonstatutory mitigating cir-
cumstances; nor did it mention Solis’ testimony that Barritt
had told her Galindo had held a knife to Barritt’s throat.
Regarding drug use, Galindo’s postconviction motion
asserted that his counsel was ineffective in conducting an
incomplete mitigation investigation. Due to this allegedly
incomplete investigation, Galindo claimed, his counsel failed
to inform Stalcup about reports of various law enforcement
officers that Galindo did not appear to be under the influence
of drugs at the time of his arrest or in the days that followed.
Galindo asserted that because of this failure to prepare Stalcup,
the sentencing panel discredited his opinion. Galindo further
identified unnamed witnesses who had observed Galindo under
the influence of methamphetamine during the weeks and days
immediately before the bank robbery, and he asserted that a
proper investigation would have uncovered these witnesses.
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Galindo’s motion also claimed that his counsel was inef-
fective in calling Solis, because her testimony that metham-
phetamine had a mellowing effect on Galindo contradicted
Stalcup’s testimony that people under the influence of meth-
amphetamine can be hypervigilant and aggressive and have an
exaggerated sense of fear. Galindo additionally asserted that
Solis’ testimony about Barritt’s statement that Galindo had held
a knife to Barritt’s throat provided further damaging informa-
tion about Galindo’s past violent behavior. Galindo concluded
that if this alleged deficient performance had not occurred,
there was a reasonable “possibility” that the sentencing panel
would have considered Galindo’s drug use as a statutory or
nonstatutory mitigating circumstance.
The district court found that counsel’s performance was not
deficient and that Galindo had not suffered prejudice.
Now on appeal, Galindo argues that his counsel inad-
equately investigated the issue of drug use and addiction and
failed to interview witnesses who had observed Galindo at
the time of his arrest. Due to this, Galindo contends, Stalcup
was unaware that numerous law enforcement officers reported
that Galindo did not appear to be under the influence of any
drugs around the time of his arrest. The record, however, dem-
onstrates that Galindo’s counsel did not perform deficiently.
Faced with a substantial factual record of Galindo’s planning
of, preparation for, and participation in the bank robbery and
the flight afterward, Galindo’s counsel elicited testimony from
Stalcup that Galindo was a methamphetamine addict and that
his actions during the robbery were consistent with those
of someone intoxicated by the drug. Although reports about
Galindo’s behavior around the time of his arrest were not
provided to Stalcup, Galindo’s counsel elicited Stalcup’s tes-
timony that even if Galindo appeared cooperative and rational
at that time, such behavior could be consistent with the influ-
ence of methamphetamine. The sentencing panel simply did
not accept Stalcup’s explanation of Galindo’s behavior. We
conclude that defense counsel’s approach did not fall below
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an objective standard of reasonableness such that it was defi-
cient. See State v. Wagner, 271 Neb. 253, 710 N.W.2d 627
(2006), citing Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984).
Galindo further asserts that his counsel’s failure to inves-
tigate other potential witnesses resulted in counsel’s instead
calling Solis, whose testimony that methamphetamine had a
mellowing effect on Galindo was “inconsistent” with Stalcup’s
opinions. Brief for appellant at 91. Our reading of the record
reveals no such inconsistency and therefore no deficient per-
formance. The range of symptoms of methamphetamine intoxi-
cation identified by Stalcup included appearing to be rational
and cooperative when ambient stimulation is low, and Solis
testified that she observed Galindo using methamphetamine at
Barritt’s home. Moreover, Solis also suggested that metham-
phetamine use left Galindo “[l]ooking like when they would
look out the window constantly or any little noise” and too
“antsy” to care for his children, which was consistent with
other possible symptoms of methamphetamine intoxication
described by Stalcup.
Finally, Galindo contends that ineffective assistance of
counsel resulted in Solis’ testimony that Barritt had told her
that Galindo had previously held a knife to Barritt’s throat.
According to Galindo, an adequate investigation would have
revealed Solis’ knowledge of Barritt’s allegation and led coun-
sel not to call Solis as a witness. We disagree that Galindo’s
counsel performed deficiently in this regard. Based on
Barritt’s deposition testimony, Galindo’s counsel was already
aware that Galindo had perpetrated domestic abuse, and while
Solis’ testimony did add a single violent act to a significant
record of other violent acts perpetrated by Galindo, it, along
with Barritt’s testimony, also tended to link Galindo’s vio-
lence to his methamphetamine use. Establishing this link was
the purpose of Solis’ testimony and had the potential to sup-
port Galindo’s drug use as a mitigating circumstance, a ben-
efit that conceivably outweighed any risk of attributing more
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violence to Galindo. If, indeed, Galindo’s counsel did forgo
investigating Solis’ perception of Galindo’s relationship with
Barritt, the decision was objectively reasonable.
We are not persuaded that Galindo has alleged instances of
deficient performance related to Galindo’s drug use. Rather,
we discern defense counsel’s reasonable efforts to connect
Galindo’s methamphetamine use and addiction to his actions
on the day of the fatal bank robbery. Therefore, the district
court did not err in rejecting Galindo’s request for an eviden-
tiary hearing on this alleged instance of ineffective assistance
of counsel. See State v. Ellis, 311 Neb. 862, 975 N.W.2d
530 (2022).
8. Ineffective Assistance of Counsel:
Mitigators Involving Age
(a) Age-Related Brain Development
as Nonstatutory Mitigator
Galindo was 21 years old at the time of the charged homi-
cides. At the mitigation hearing, Galindo’s counsel presented
the testimony of educators and relatives who had observed
that he was immature for his age and easily influenced by oth-
ers, including the more mature, charistmatic, and intimidating
Sandoval. Galindo’s counsel also engaged a clinical neuro-
psychologist to examine Galindo and presented that expert’s
testimony about Galindo’s level of cognitive functioning. The
expert’s assessment compared Galindo with other individuals
in his age group with a similar level of education. Regarding
Galindo’s maturity level and intellect, the expert testified that
Galindo showed signs of “cognitive immaturity” and had an
elevated risk of undue influence by others because of his
“dampened intellect.” The expert also opined that Galindo’s
language and executive skills, viewed in the context of his
borderline to low-average reasoning skills, affected his ability
to make appropriate judgments. Asked about Galindo’s “prog-
nosis,” the expert testified that Galindo was still a “young
individual” and that young individuals have a “greater chance
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for change” than middle-aged adults. The sentencing panel did
not find Galindo’s age, cognitive function, or cognitive devel-
opment to be mitigating circumstances in any way.
Galindo’s motion for postconviction relief cited scientific
studies demonstrating that regions of the brain that govern
risk awareness and the ability to control impulses do not fully
develop until a person’s midtwenties. He claimed that his coun-
sel provided ineffective assistance at the mitigation hearing
in failing to solicit and present evidence about the relevance
of Galindo’s characteristics based on his age-related brain
development.
On appeal, Galindo assigns that the district court erred in
denying an evidentiary hearing on this claim of ineffective
assistance of counsel. According to Galindo, because his age
is an aspect of his character, its potential as a mitigating cir-
cumstance should have been obvious to his counsel. Therefore,
he asserts his counsel was deficient in not eliciting opinions
about Galindo’s age and about how his age-related character-
istics influenced his culpability. Had counsel done so, Galindo
believes the sentencing panel would have considered his age
and concluded that the balance of aggravating and mitigating
circumstances did not warrant death sentences. We do not share
Galindo’s view.
Galindo cites U.S. Supreme Court authority that a sentenc-
ing panel may not exclude relevant mitigating evidence from
consideration, see Eddings v. Oklahoma, 455 U.S. 104, 106
S. Ct. 869, 71 L. Ed. 2d 1 (1982), and that a defendant’s age
is one of the individualized mitigating circumstances that the
sentencing panel must be allowed to consider, see Stanford
v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d
306 (1989), abrogated on other grounds, Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). He
further points out that in Roper, the U.S. Supreme court held
that execution of individuals who were under the age of 18 at
the time of their capital crimes is prohibited by the 8th and
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14th Amendments. Roper noted research on the differences
in the juvenile brain, as compared to the adult brain, to sup-
port its holding.
Relying on this authority, Galindo essentially claims that
his counsel should have presented generalized evidence of the
brain development of persons in their early twenties relative
to the brain development of adults whose brains have reached
full maturity. While it does not appear Galindo’s counsel pre-
sented the issue in this way, his counsel did put on abundant
personalized evidence about Galindo’s age-related character-
istics and development. This included expert evidence that
compared Galindo’s cognitive functioning to that of other
individuals his age and concluded that Galindo’s specific
characteristics rendered him more at risk of undue influence
by others and diminished his ability to make appropriate
judgments. It also included testimony by individuals who had
personally observed Galindo over the years and described him
as immature compared to his same-aged peers and easily influ-
enced. We recognize the distinction between what was pre-
sented and what Galindo says ought to have been, but we do
not agree that it amounts to deficient performance. Galindo’s
counsel could have reasonably decided that specific evidence
about Galindo’s maturity would equal or exceed the benefits
of presenting generalized studies. The record demonstrates
that Galindo is entitled to no relief on this claim, because his
counsel’s treatment of the issue equaled that of a lawyer with
ordinary training and skill in criminal law. See State v. Lessley,
312 Neb. 316, 978 N.W.2d 620 (2022). See, also, State v.
Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006).

(b) Chronological Age as
Statutory Mitigator
As we have noted, Galindo was convicted of homicides
committed when he was 21 years old. In sentencing Galindo,
the panel declined to consider his chronological age as a
statutory mitigating circumstance under § 29-2523(2)(d).
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The panel explained that State v. Lotter, 255 Neb. 456, 586
N.W.2d 591 (1998), modified on denial of rehearing 255 Neb.
889, 587 N.W.2d 673 (1999), had interpreted this statutory
mitigator to refer only to a person of advanced years where
senility may be involved. Galindo’s counsel did not challenge
this finding on direct appeal, and Galindo’s postconviction
motion asserted this was ineffective assistance. In this appeal,
Galindo assigns that the district court erred in not holding an
evidentiary hearing on his postconviction claim that his appel-
late counsel was ineffective in failing to raise the sentenc-
ing panel’s explicit refusal to consider youth as a mitigating
circumstance. Because we are not persuaded that Galindo’s
appellate counsel performed deficiently in this regard, this
claim fails.
As it did when Galindo was sentenced, § 29-2523(2)(d)
designates “[t]he age of the defendant at the time of the
crime” as a statutory mitigating circumstance. In Lotter, we
rejected the notion that this language applied to any capital
defendant with an ascertainable age. See § 29-2523(2)(d). We
cited our earlier determination in State v. Simants, 197 Neb.
549, 250 N.W.2d 881 (1977), disapproved on other grounds,
State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), that
§ 29-2523(2)(d) refers only to a child of tender age, a juve-
nile, or a person of advanced years, where senility may be
involved. We recognized that after Simants was decided, the
Legislature absolutely prohibited the imposition of the death
penalty on anyone under the age of 18 at the time the crime
was committed. See Neb. Rev. Stat. § 28-105.01 (Reissue
2016). We explained that § 28-105.01 narrowed the appli-
cation of the mitigating circumstance in § 29-2523(2)(d) to
persons of advanced years. We concluded that only a capital
defendant who was a person of advanced years at the time of
the homicide could receive the benefit of this statutory miti-
gating circumstance.
On appeal, Galindo argues that the sentencing panel’s reli-
ance on Lotter was “clearly erroneous.” Brief for appellant
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at 88. Again, he points to subsequent U.S. Supreme Court
decisions in “Eddings, . . . Stanford[, and] Roper” for sup-
port. Id. at 87. See, Roper v. Simmons, 543 U.S. 551, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 (2005) (execution of individuals
under age of 18 at time of capital crimes is prohibited by 8th
and 14th Amendments); Stanford v. Kentucky, 492 U.S. 361,
109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) (defendant’s age is
one of individualized mitigating circumstances that sentencing
panel must be allowed to consider); and Eddings v. Oklahoma,
455 U.S. 104, 106 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (sentenc-
ing panel may not exclude relevant mitigating evidence from
consideration). Galindo contends that the sentencing panel con-
travened this authority when it explicitly refused to consider
Galindo’s age as a statutory mitigating circumstance under
§ 29-2523(2)(d).
Galindo seems to take the position that in declining to apply
§ 29-2523(2)(d) to him, the sentencing panel concluded that
it could not consider his age at all. We disagree. The sentenc-
ing panel correctly read Lotter in deciding that the mitigating
circumstance in § 29-2523(2)(d) did not exist in Galindo’s case
because he was not a person of advanced years. And contrary
to Galindo’s argument, Lotter does not preclude the sentenc-
ing panel from using a capital defendant’s age or related
considerations as nonstatutory mitigating circumstances. See
§ 29-2521(3) (allowing for presentation of any relevant miti-
gating circumstances, including, but not limited to, statutory
mitigators). See, also, State v. Gales, 269 Neb. 443, 694
N.W.2d 124 (2005) (finding procedure in § 29-2521(3) pro-
vides constitutionally sufficient opportunity to adduce evidence
relevant to mitigation).
Based on the foregoing, we conclude that the record shows
Galindo is not entitled to relief on his claim that his appellate
counsel performed deficiently in not opposing the sentencing
panel’s treatment of § 29-2523(2)(d). See State v. Ellis, 311
Neb. 862, 975 N.W.2d 530 (2022).
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9. Brady Withholding Claims and
Remaining Claims of Ineffective
Assistance of Counsel
Most of Galindo’s remaining claims assert additional
instances of ineffective assistance of counsel and that the prose-
cution committed violations under Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Galindo contends
that these constitutional violations underlie the jury’s findings
that the statutory aggravating circumstances in § 29-2523(1)(a)
and (d) apply in his case and the sentencing panel’s finding that
the nonstatutory mitigating circumstance of remorse does not,
such that the legal basis for his death sentences is called into
question. Galindo believes that these claims, taken individually
or together, merit an evidentiary hearing.
We can conceive of various reasons why some of these
claims may fail, but there is one shortcoming that they all have
in common. As we will explain in more detail, each of these
claims require Galindo to show that he suffered prejudice, and
our inquiry for each is fundamentally the same: whether there
is a reasonable probability that, had the offending conduct not
occurred, the result of the proceeding would have been differ-
ent. See, State v. Ellis, supra (analyzing ineffective assistance
of counsel claim); State v. Harris, 296 Neb. 317, 893 N.W.2d
440 (2017) (summarizing analysis for Brady claims). Applying
this standard below, we conclude that even if § 29-2523(1)(a)
and (d) were removed from consideration and the nonstatu-
tory mitigating circumstance of remorse were added, there is
not a reasonable probability that the result of the proceeding
would have been different—that is, that Galindo would not
have been sentenced to death. Therefore, the district court did
not err in denying Galindo an evidentiary hearing on any of
these claims.
(a) Disputed Aggravating and
Mitigating Circumstances
For the sake of completeness, we briefly describe the
Brady and ineffective assistance of counsel claims by which
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Galindo challenges the application of the statutory aggravat-
ing circumstances in § 29-2523(1)(a) and (d) and the sentenc-
ing panel’s finding that the nonstatutory mitigating circum-
stance of remorse does not apply.
(i) Substantial Prior History of Serious Assaultive
or Terrorizing Criminal Activity Under
§ 29-2523(1)(a) Due to Lundell Murder
a. Brady Claims
On appeal, Galindo challenges the district court’s denial of
an evidentiary hearing on his postconviction claims that the
State violated its duty to disclose under Brady v. Maryland,
supra, and its progeny. This claim rests on various allegations
that the prosecution failed to disclose information prior to
trial and also rebuffed postconviction counsel’s efforts to dis-
cover such information during postconviction proceedings. As
explained below, all of the allegedly withheld materials involve
evidence supporting the § 29-2523(1)(a) aggravator based on
the Lundell murder.
Galindo makes several arguments that pertain to the cred-
ibility of Lopez and Abendano, who testified about Galindo’s
involvement in the Lundell murder. He contends that he was
entitled to an evidentiary hearing on his postconviction claim
that the State withheld evidence that Lopez and Abendano
were protected by the county attorney as members of a drug
ring. Galindo posits that this evidence would have shown that
Lopez and Abendano were “indebted” to the county attor-
ney and that had the jury been aware of this indebtedness, it
would have reached a different result; that is, the jury would
not have found their testimony about the Lundell murder
credible. Brief for appellant at 49. Galindo further asserts
that “independent of the claims regarding [the county attor-
ney’s] alleged participation in a drug conspiracy,” an eviden-
tiary hearing is required on his postconviction claim that the
county attorney withheld evidence that Abendano sold a large
quantity of methamphetamine to Lopez. Id. at 47. According
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to Galindo, this association called into question Abendano’s
and Lopez’ credibility and motivations for testifying against
Galindo regarding the Lundell murder.
Galindo makes other Brady arguments that go to the cred-
ibility of testimony regarding the Lundell murder. Also “inde-
pendent” of his allegations that the county attorney was
involved in a drug ring, Galindo contends that an evidentiary
hearing is required for his claim that the State failed to dis-
close Abendano’s status as an informant. Id. at 50. Galindo
additionally argues that evidence of inducements provided to
Abendano in exchange for his testimony was not disclosed to
him. And Galindo makes similar arguments concerning Kristi
Petzold, whose testimony provided circumstantial evidence
linking Galindo to the disposal of Lundell’s body. Galindo
further asserts that an evidentiary hearing is warranted on
his claim that the State withheld evidence of inducements
provided to Barritt in exchange for information about the
Lundell murder.
Galindo acknowledges that his Brady claim regarding the
testimony of Trista Wiest goes directly to the aggravating
circumstance based on Lundell’s murder. Wiest testified at
the aggravation hearing that she loaned her car to Sandoval
around the time of Lundell’s death, suggesting that the car
was used to dispose of Lundell’s body. Galindo argues that
an evidentiary hearing was required on his postconviction
claim that the State withheld evidence regarding the search
and forensic testing of the car’s trunk for trace evidence of
Lundell’s body.
Finally, Galindo claims that he is entitled to an eviden-
tiary hearing on his postconviction claim that the State com-
mitted ongoing Brady violations when it did not disclose
information Galindo requested to prepare his postconviction
motion regarding the Lundell evidence. We are not certain
that Brady provides the proper framework for this claim. See
District Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 69, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009)
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(finding Brady was “wrong framework” for claim based on
failure of State to turn over DNA evidence for postconviction
proceeding, reasoning Brady is a “trial right” and movant had
“already been found guilty at a fair trial”). But even if it does,
as we explain below, Galindo cannot meet the materiality stan-
dard of Brady.
(b) Ineffective Assistance of
Counsel Claims
Several of Galindo’s remaining claims of ineffective assist­
ance of counsel relate to the § 29-2523(1)(a) aggravator pre-
mised on the Lundell murder.
In this regard, Galindo takes issue with his trial counsel’s
performance. First, he assigns that the district court erred in
not allowing an evidentiary hearing on his postconviction
claim that his trial counsel was ineffective in allowing him to
waive his privilege against self-incrimination when he assisted
law enforcement in locating Lundell’s body. Second, Galindo
assigns that the district court erred in denying him an eviden-
tiary hearing on his postconviction claim that his counsel was
ineffective in several instances by not mounting a meaningful
defense to the State’s case regarding the (1)(a) aggravator.
Galindo suggests that he suffered prejudice as a result of these
alleged instances of deficient performance.
Regarding his appellate counsel, Galindo assigns and argues
that his counsel on direct appeal was ineffective in failing to
argue Galindo’s rights were violated by the district court’s
denial of a pretrial motion to continue. He asserts that without
the continuance, his counsel was unprepared to defend him
against the (1)(a) aggravator.
(ii) Especially Heinous, Atrocious, or Cruel, or
Manifested Exceptional Depravity by Ordinary
Standards of Morality and Intelligence
Under § 29-2523(1)(d)
On appeal, Galindo assigns that the district court erred
in not granting an evidentiary hearing on his postconviction
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motion’s claim that his counsel was ineffective in failing to
appeal based on his objections to jury instructions for the
§ 29-2523(1)(d) aggravator, which applies if “[t]he murder
was especially heinous, atrocious, [or] cruel, or manifested
exceptional depravity by ordinary standards of morality and
intelligence.” See State v. Torres, 283 Neb. 142, 812 N.W.2d
213 (2012). Galindo essentially asserts in this appeal that the
instruction was unconstitutionally vague and failed to suit-
ably direct and limit the discretion of the sentencing body. He
alleges that had the matter been raised on direct appeal, this
court would have found that the instruction was erroneous and
ordered a new aggravation hearing.

(iii) Nonstatutory Mitigating
Circumstance of Remorse
Galindo’s appellate brief assigns that the district court erred
in rejecting his request for an evidentiary hearing on his post-
conviction claim about remorse. He contends that although
his counsel argued to the sentencing panel that he had “‘real
remorse,’” his counsel rendered ineffective assistance by fail-
ing to present any evidence of expressions of remorse Galindo
made to multiple people. Galindo’s brief cites the following
specific allegations from his postconviction motion.
Galindo’s motion asserted that Lopez, who was incarcer-
ated with Galindo after the bank robbery, testified during a
pretrial deposition that Galindo would tremble, shake, and cry
while anguishing over the bank robbery and that other inmates
would sing him to sleep at night so that he would stop crying.
According to Galindo’s postconviction motion, Lopez also
said that Galindo acknowledged that what he had done was
wrong and cried every time his parents and children visited
him. Galindo’s motion also alleged Abendano testified at a
pretrial deposition that Galindo said he very much regretted
the bank robbery and that whenever Galindo recalled it, he
became serious and started crying. Galindo’s motion further
contended that a jail administrator told a defense investigator
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that Galindo had expressed remorse about the bank robbery
to him and a deputy. Finally, Galindo’s motion noted that his
mother reported that he was extremely distraught over his role
in the bank robbery.
According to Galindo, but for his counsel’s deficient per-
formance in not presenting this evidence of remorse, there is
a reasonable probability that the outcome of the sentencing
proceeding would have been different, especially given that the
sentencing panel explicitly relied on Galindo’s apparent lack
of remorse to counterbalance the mitigating circumstance of
Galindo’s assistance in locating Lundell’s body.
We take this opportunity to note that the presentence report
that was before the sentencing panel for consideration sug-
gested that at times, Galindo showed a lack of remorse. The
presentence report reflects that Animas, who was incarcerated
with Galindo after the bank robbery, told police that Galindo
was calm when he talked about the bank robbery, but would
get emotional when he talked about his girlfriend and say he
“regrets doing this.” However, Animas also said Galindo was
“not bothered” by the murders and would make jokes about
them and “crack up laughing.” For example, Animas said
that Galindo once saw a shadow near their cell and joked that
maybe it was the people they killed coming back to haunt
them. Animas reported that Galindo said he anticipated serving
25 years in prison and being in good physical shape upon his
release because he would work out. However, in an interview
with police included in the presentence report, Abendano,
another fellow inmate of Galindo’s, said that Galindo acted
as if he was sorry for the bank robbery and sad for what he
had done.
(b) Analytical Framework
The rudimentary principles of ineffective assistance of coun-
sel and Brady violations are central to resolving most of
Galindo’s remaining claims.
[14] 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. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
See, also, Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237,
152 L. Ed. 2d 291 (2002) (this right has been accorded not
for its own sake, but because of its effect on accused’s abil-
ity to receive fair trial). We have already recited the necessary
components of this claim, but they bear repeating here. 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. State
v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). 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. State v. Ellis,
311 Neb. 862, 975 N.W.2d 530 (2022). A reasonable prob-
ability 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. “‘The likelihood of a differ-
ent result must be substantial, not just conceivable.’” State v.
Newman, 310 Neb. 463, 472-73, 966 N.W.2d 860, 869 (2021),
quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011).
A functionally identical prejudice analysis is at play in
assessing a claim under Brady and its progeny. Such a claim
must allege that due process has been violated because the
prosecution has failed to disclose favorable evidence that is
material to guilt or punishment. See State v. Harris, 296 Neb.
317, 893 N.W.2d 440 (2017). In United States v. Bagley, 473
U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the
U.S. Supreme Court adopted the standard of materiality for
all claims of prosecutorial suppression of favorable mate-
rial evidence that it had relied on in Strickland for claims of
ineffective assistance of counsel: “The evidence is material
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only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” The claimant need not show that
acquittal was more likely than not had the evidence been dis-
closed. See Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995). Rather, “[a] ‘reasonable probability’
of a different result is . . . shown when the government’s evi-
dentiary suppression ‘undermines confidence in the outcome of
the trial.’” Id., 514 U.S. at 434. The claimant must show that
“the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence
in the verdict.” Id., 514 U.S. at 435.
Given these standards, our examination of Galindo’s remain-
ing claims of ineffective assistance of counsel and Brady
violations begins and ends with a prejudice analysis. Even if
Galindo can show that his counsel performed deficiently as
he has alleged, if he was not prejudiced by that conduct, his
ineffective assistance of counsel claims fail. Likewise, even if
Galindo has alleged facts showing that the prosecution with-
held favorable evidence from him, if it did not result in preju-
dice, his Brady claims fail. To analyze prejudice, our task for
both types of claims is to decide whether there is a reasonable
probability that, had the offending conduct not occurred, the
result of the proceeding would have been different. That is,
for Galindo to prevail, we must conclude that his allegations,
if true, undermine confidence in the outcome: the imposition
of death sentences. Galindo suggests that these claimed trans-
gressions led to the application of the statutory aggravating
circumstances in § 29-2523(1)(a) and (d) and to the omission
of the nonstatutory mitigating circumstance of remorse. But
even if Galindo is correct, if we find there is no reasonable
probability he would not have been sentenced to death absent
the alleged deficient performance and failures to disclose evi-
dence, he has not shown prejudice and his ineffective assist­
ance of counsel claims and Brady claims are not grounds for
an evidentiary hearing.
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For this reason, for the sake of analysis, we take as
true Galindo’s remaining allegations that his counsel per-
formed deficiently and his allegations that the State withheld
evidence; we omit the purportedly offending aggravating
circumstances from our consideration, add the mitigating
circumstance advanced by Galindo, and assess the remain-
ing aggravators against the remaining mitigators to decide
whether there is a reasonable probability that they would
have resulted in death sentences. See, e.g., Sears v. Upton,
561 U.S. 945, 130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010) (to
evaluate probability of different outcome under Strickland,
court considers totality of available mitigation evidence and
aggravation evidence); Wiggins v. Smith, 539 U.S. 510, 534,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (when assess-
ing prejudice resulting from alleged ineffective assistance of
counsel at penalty phase of capital trial, court “reweigh[s]”
evidence in aggravation against totality of available mitigat-
ing evidence); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984) (considering how omitted
evidence would have altered sentencing profile in capital case
and whether it would have changed conclusion that aggravat-
ing circumstances outweighed mitigating circumstances). See
§ 29-2522(1) and (2). And in Nebraska, this analysis includes
the additional step of considering whether there is a reason-
able probability that the sentencing panel would have found
death sentences would not be excessive or disproportion-
ate compared to the penalty imposed in similar cases. See
§ 29-2522(3).
To the extent that Galindo characterizes this framing of the
matter as a flawed or impermissible harmless error analysis,
he misunderstands the nature of the errors he has alleged.
For both ineffective assistance of counsel and Brady claims,
“the requirement of showing prejudice . . . stems from the
very definition of the right at issue; it is not a matter of
showing that the violation was harmless, but of showing that
a violation of the right . . . occurred.” United States v.
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Gonzalez-Lopez, 548 U.S. 140, 150, 126 S. Ct. 2557, 165 L.
Ed. 2d 409 (2006) (emphasis in original) (discussing ineffec-
tive assistance of counsel). We now proceed to explain why
Galindo failed to make factual allegations that support a find-
ing that any such violations occurred here. See State v. Lessley,
312 Neb. 316, 978 N.W.2d 620 (2022).

(c) Application
To conduct the prejudice analysis for Galindo’s remain-
ing claims of ineffective assistance of counsel and his Brady
claims, we must consider “the totality of the evidence” before
the sentencing panel. See Strickland v. Washington, 466 U.S. at
695. As the U.S. Supreme Court explained in Strickland,
[s]ome of the factual findings will have been unaffected
by the errors, and factual findings that were affected
will have been affected in different ways. Some errors
will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported
by the record is more likely to have been affected by
errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account
of the effect of the errors on the remaining findings,
a court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the deci-
sion reached would reasonably likely have been different
absent the errors.
466 U.S. at 695-96. We recognize that in conducting an analy-
sis of this sort, rarely will there be perfect evidence of what
the sentencing panel would have done under alternate circum-
stances, but, in this case, the panel’s order gives us guidance in
deciding what it was reasonably probable to have done. With
these considerations in mind, we start by recounting the panel’s
analysis and ultimately conclude that no reasonable probability
of a different outcome exists here.
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(i) Sentencing Panel’s Order
As it does still, § 29-2522 instructed the three-judge sentenc-
ing panel in Galindo’s case to base the sentences on the fol-
lowing considerations: whether the aggravating circumstances
as determined to exist justified the imposition of a sentence
of death; whether sufficient mitigating circumstances existed
which approached or exceeded the weight given to the aggra-
vating circumstances; or whether the sentence of death was
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.
A jury found that for each murder, evidence at Galindo’s
aggravation hearing supported the existence of five statu-
tory aggravating circumstances set forth in § 29-2523(1): (a)
Galindo had a substantial prior history of serious assaultive or
terrorizing criminal activity, based on evidence of his involve-
ment in the murder of Lundell, committed before the bank rob-
bery; (b) the murder was committed in an effort to conceal the
identity of the perpetrator; (d) the murder was especially hei-
nous, atrocious, or cruel, or manifested exceptional depravity;
(e) at the time of the murder, another murder had been com-
mitted; and (f) at the time of the murder, Galindo knowingly
created a great risk of death to at least several persons.
The three-judge sentencing panel in turn received into evi-
dence Galindo’s presentence investigation report and the record
from the guilt and aggravation phases of the trial. The sentenc-
ing panel held a mitigation hearing.
In addition to the mitigation testimony recounted above,
the sentencing panel heard evidence about Galindo’s coop-
eration with law enforcement. The panel heard testimony that
immediately after his arrest, Galindo provided law enforce-
ment officers with some information about the bank robbery
plans and his accomplices without being offered any deals or
promises. Galindo also helped law enforcement officers locate
the guns from the bank robbery. The panel heard testimony
that after Galindo’s guilt phase was completed, he testified at
an accomplice’s trial with no assurance that he would receive
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more lenient treatment in his own case. Regarding Lundell,
evidence before the panel showed that in law enforcement
interviews in January 2003, Galindo initially denied knowing
anything about him. In between January and March of that
year, law enforcement was able to substantially narrow down
the location of Lundell’s body using cadaver dogs and “infor-
mation from cooperating individuals that had talked to . . .
Galindo.” On March 17, Lundell’s body was discovered with
additional direction from Galindo at the scene.
The sentencing panel heard evidence that a few months after
the robbery, law enforcement learned that Galindo had planned
an armed escape. Among other things, Galindo had taken steps
toward smuggling a gun onto the cell block, and a makeshift
blunt-force instrument was seized from him. The panel heard
testimony about the mortal danger to jail staff inherent in an
armed escape.
Following the mitigation hearing, the panel found no statu-
tory mitigating circumstances. See id. Regarding the statutory
mitigating circumstance that Galindo had “no significant his-
tory of prior criminal activity” under § 29-2523(2)(a), the sen-
tencing panel listed Galindo’s previous convictions for felony
theft, misdemeanor third degree assault, alcohol and controlled
substance offenses, driving under suspension, and failure to
appear. It also considered Galindo’s uncharged burglary of a
sporting goods store, by which he obtained handguns used
in the fatal bank robbery, and Galindo’s participation in the
Lundell murder. The sentencing panel observed that Galindo
was 21 years old and concluded that “already” his criminal his-
tory was not “slight or inconsequential.” See State v. Holtan,
197 Neb. 544, 548, 250 N.W.2d 876, 880 (1977), disapproved
on other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d
706 (1986).
The sentencing panel also considered Galindo’s participa-
tion in the Lundell murder as a factor in declining to find that
he “acted under unusual pressures or influences or under the
domination of another person” pursuant to § 29-2523(2)(b).
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Other factors cited by the sentencing panel included multiple
examples of Galindo’s participation in the planning and prepa-
ration for the bank robbery, his actions during the bank robbery
itself, and his actions in fleeing afterward.
The sentencing panel considered the nonstatutory mitigating
circumstance of Galindo’s cooperation with the criminal inves-
tigation but determined that this mitigating circumstance was
“tempered” by his attempted escape from incarceration, which,
the panel elsewhere noted, would have involved violence, if
necessary, and “offset” by his lack of remorse. The sentencing
panel consequently gave Galindo’s cooperation with the inves-
tigation “little weight” as a mitigating circumstance.
The panel determined that the weight of the single miti-
gating circumstance did not approach or exceed the weight
given to the five aggravating circumstances, each of which
the sentencing panel found “significant and substantial.” See
§ 29-2522. This was so, “[e]ven if the panel were to disregard”
the aggravating circumstance in § 29-2523(1)(d), that “the
murder was especially heinous, atrocious, [or] cruel, or mani-
fested exceptional depravity by ordinary standards of moral-
ity and intelligence,” because the panel had “some concern
with historic questions surrounding the constitutionality” of
this aggravator.
The sentencing panel also found that death sentences in
Galindo’s case were not excessive or disproportionate to the
penalties imposed in similar cases, considering both the crimes
and the defendant. It based this finding on a review of 15
cases in which death sentences were pronounced, commencing
in 1973.
Accordingly, the panel sentenced Galindo to death for each
of the five murders committed during the bank robbery.

(ii) Prejudice Analysis
In light of the sentencing panel’s analysis, we now under-
take to decide whether Galindo’s remaining allegations of
deficient performance and his claims that the State withheld
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material evidence demonstrate prejudice. That is, we must
decide whether there is a reasonable probability that the sen-
tencing panel would not have sentenced Galindo to death if the
§ 29-2523(1)(a) and (d) aggravators were removed from con-
sideration and some expressions of remorse added as a mitigat-
ing circumstance. Regarding remorse, we consider the fact that
the sentencing panel also had before it statements that showed
a definitive lack of remorse.
The first question to resolve is whether there is a reason-
able probability that the sentencing panel would have found
that the altered slate of three aggravating circumstances did
not justify imposition of death sentences. See § 29-2522(1).
We conclude there was no such reasonable probability. Years
before Galindo was sentenced, we held that one aggravating
circumstance may be sufficient under our statutory system for
the sentencing court to conclude that imposition of the death
penalty is appropriate. See State v. Dunster, 262 Neb. 329, 631
N.W.2d 879 (2001). Three aggravating circumstances surpass
this threshold.
The next statutorily directed inquiry is whether there is a rea-
sonable probability that the sentencing panel would have found
the mitigating circumstances approach or exceed the weight
given to the aggravating circumstances. See § 29-2522(2). Our
task in answering this question is greatly aided by the sentenc-
ing panel’s articulation of the relative weight it attributed to
the aggravating and mitigating circumstances. Also relevant
is the sentencing panel’s statement that even if it were to dis-
regard the (1)(d) aggravator, as we are doing now, it would
not have altered its balancing of the aggravating and mitigat-
ing circumstances.
We are further cognizant of the impact of the alleged
errors on the sentencing factors as a whole. As Galindo points
out, the sentencing panel also took the Lundell murder into
account in eliminating two statutory mitigators from consider-
ation—§ 29-2523(2)(a) and (b). However, the Lundell murder
was one of numerous factors the sentencing panel considered
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in so finding. In declining to find that Galindo had no sig-
nificant history of prior criminal activity, see § 29-2523(2)
(a), the sentencing panel also observed that at age 21, Galindo
had already been convicted of felony theft, misdemeanor third
degree assault, alcohol and controlled substance offenses, driv-
ing under suspension, and failure to appear. It further noted
that Galindo burglarized a sporting goods store to obtain hand-
guns for the bank robbery, but was never charged. Likewise,
the sentencing panel found that Galindo was not a follower
who had acted under unusual pressures or influences or domi-
nation imposed by Sandoval, see § 29-2523(2)(b), citing vari-
ous details in addition to the Lundell murder. These included
Galindo’s role in planning the bank robbery; his participation
in stealing guns to be used in the bank robbery; his efforts to
recruit multiple people for the scheme; and various actions dur-
ing and immediately after the bank robbery, along with other
criminal activity, that Galindo performed while separated from
Sandoval. We are not persuaded there is a reasonable probabil-
ity that omitting the Lundell murder from consideration would
have changed the sentencing panel’s conclusion regarding the
statutory mitigators.
In our assessment, the two nonstatutory mitigating cir-
cumstances in our calculus—cooperation with law enforce-
ment “tempered” by Galindo’s attempted escape, and some
remorse—do not approach or exceed the three remaining
“significant and substantial” aggravating circumstances: the
murder was committed in an effort to conceal the identity
of the perpetrator; at the time of the murder, another murder
had been committed; and at the time of the murder, Galindo
knowingly created a great risk of death to at least several
persons. See § 29-2523(1)(b), (e), and (f). We conclude that
removal of the (1)(a) and (1)(d) aggravators and the addition
of some remorse would have “altered the sentencing profile”
to a degree, but we do not discern a reasonable probability
that the sentencing panel would have found that the weight
of the two mitigating circumstances approached or exceeded
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that of the three aggravating circumstances. See Strickland v.
Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
The final question is whether there is a reasonable prob-
ability that, given the hypothetical slate of aggravating and
mitigating circumstances suggested by Galindo’s claims, the
sentencing panel would have found that death sentences were
excessive or disproportionate to the penalty imposed in simi-
lar cases, considering both the crime and the defendant. See
§ 29-2522(3). Recognizing that no two cases are the same, we
conclude there is no such reasonable probability.
A proportionality review does not require that a court “‘color
match’” cases precisely. State v. Ellis, 281 Neb. 571, 613, 799
N.W.2d 267, 302 (2011). It would be virtually impossible to
find two murder cases which are the same in all respects. Id.
Instead, the question is simply whether the cases being com-
pared are sufficiently similar, considering both the crime and
the defendant, to provide the court with a useful frame of refer-
ence for evaluating the sentence in this case. Id.
The sentencing panel reviewed 15 cases, spanning decades,
to support its finding that death sentences in Galindo’s case
were neither excessive nor disproportionate. Although based
on the same aggravating and mitigating circumstances relied
upon by the sentencing panel, our review found Galindo’s
death sentences to be proportionate on direct appeal. See State
v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). We took
particular note of State v. Moore, 210 Neb. 457, 316 N.W.2d
33 (1982), where we affirmed a death sentence for two counts
of first degree murder of two cabdrivers during the perpetration
of robberies.
Even considering the adjusted aggravators and mitigators,
we find Moore is still relevant to our analysis today. Also
instructive is State v. Gales, 269 Neb. 443, 694 N.W.2d 124
(2005), listing cases dating back to the 1970s in which the
death penalty was imposed. And although not dispositive, it
is notable that Sandoval and Vela, Galindo’s accomplices,
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were also sentenced to death. See, State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010) (affirmed on direct appeal); Vela
I, supra (affirmed on direct appeal). Upon our review of this
authority, and omitting two aggravating circumstances from
consideration and giving Galindo the benefit of the additional
mitigating circumstance of some remorse, his offenses remain
extremely grave. As we observed on direct appeal, “Galindo
knowingly participated in a dangerous crime in which five
innocent victims were almost immediately shot and killed
without any provocation.” See State v. Galindo, 278 Neb. at
675, 774 N.W.2d at 248. There is not a reasonable probability
that recalibrating the aggravating and mitigating circumstances
to correspond with Galindo’s remaining ineffective assistance
of counsel claims and his claims under Brady v. Maryland, 373
U.S.83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), would have
led the sentencing panel to determine death sentences to be
excessive or disproportionate in Galindo’s case.

10. Prosecutorial Misconduct:
Conflict of Interest
We now turn to Galindo’s assertion that the district court
erred in declining to grant an evidentiary hearing on his
postconviction claim that a prosecutorial conflict of interest
violated his constitutional right to due process. At the heart of
Galindo’s prosecutorial conflict of interest claim are many of
the same allegations regarding the county attorney’s criminal
activities and associations that we have already discussed. As
described above, Animas, Lopez, and Abendano testified at
Galindo’s aggravation hearing that Galindo admitted to them
while they were incarcerated together that he had participated
with Vela in Lundell’s murder. Padilla was also endorsed as a
witness, but he did not testify. Galindo’s postconviction motion
made factual allegations that unbeknownst to him at the time
of his trial and direct appeal, the county attorney had connec-
tions that predated Galindo’s trial to a drug ring that involved
Padilla, Lopez, Abendano, and others.
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Galindo claimed these factual allegations evidenced a pros-
ecutorial conflict of interest, in that as a result of the county
attorney’s involvement with State witnesses, the county attor-
ney’s personal interests influenced his decisions in Galindo’s
case. In particular, Galindo asserted that it was not in the
county attorney’s personal interest to disclose any connection
he had with the drug ring or its participants, to disclose any
agreement he had with Abendano to exchange Abendano’s
testimony against Galindo for the county attorney’s protect-
ing Abendano from federal prosecution and in turn avoiding
the disclosures about the county attorney it would occasion,
and to disclose Abendano as a witness in time for Galindo’s
counsel to adequately prepare to cross-examine him. Galindo
concluded, “The trial record shows [the county attorney’s]
conflict of interest affected the fairness of the proceedings and
undermines confidence in the jury’s verdict regarding Lundell.
[The county attorney’s] personal entanglement with several
. . . prosecution witnesses rendered the aggravation hearing
fundamentally unfair.”
The district court denied postconviction relief on the issue,
without an evidentiary hearing, and Galindo now challenges
this ruling on appeal.
Galindo’s prosecutorial conflict of interest claim is compli-
cated by the fact that it does not appear that either the U.S.
Supreme Court or this court has expressly recognized a due
process right to a conflict-free prosecutor. The U.S. Supreme
Court has said that a prosecutor’s personal conflict of interest
might “in some contexts raise serious constitutional questions.”
Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50, 100 S. Ct.
1610, 64 L. Ed. 2d 182 (1980). And other courts have found
that a prosecutor’s conflict of interest violated a defendant’s
right to due process. See, e.g., Ganger v. Peyton, 379 F.2d
709 (4th Cir. 1967); State v. Eldridge, 951 S.W.2d 775 (Tenn.
1997) (collecting cases); Cantrell v. Com., 229 Va. 387, 329
S.E.2d 22 (1985).
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Even if a prosecutor’s conflict of interest can violate a
defendant’s right to due process, a difficult question remains
as to how to identify when such a conflict does so. The ques-
tion is difficult, in no small part, due to the role of prosecutors.
In a sense, prosecutors are not disinterested parties to crimi-
nal prosecutions. See Wright v. United States, 732 F.2d 1048,
1056 (2d Cir. 1984) (“[o]f course, a prosecutor need not be
disinterested on the issue whether a prospective defendant has
committed the crime with which he is charged”). For this rea-
son, there is general agreement that prosecutors’ participation
in a case is not subject to the same conflict of interest rules
that govern judges. See, Young v. U. S. ex rel. Vuitton et Fils
S. A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987)
(Vuitton); People v. Vasquez, 39 Cal. 4th 47, 137 P.3d 199, 45
Cal. Rptr. 3d 372 (2006).
It is not necessary in this case to identify the precise contours
of a due process right to a conflict-free prosecutor. Rather, it
is sufficient to say that we agree with those courts that have
recognized that there may be situations in which a prosecutor’s
personal interests so undermine the fundamental fairness of a
criminal proceeding that the defendant’s right to due process is
violated. Additionally, for the sake of this analysis, we assume
that Galindo’s allegations identify the type of conflict of inter-
est on the part of a prosecutor that could rise to the level of a
due process violation.
Even with the foregoing established, another difficult ques-
tion remains: If Galindo has alleged facts identifying the
type of prosecutorial conflict of interest that could amount
to a due process violation, does that alone mean that he is
entitled to an evidentiary hearing on the issue? Galindo claims
that the answer to that question is yes. In support, he argues
that the alleged prosecutorial conflict of interest is structural
error. Structural error is the term the U.S. Supreme Court has
used to refer to “a very limited class of errors that trigger
automatic reversal because they undermine the fairness of a
criminal proceeding as a whole.” See United States v. Davila,
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569 U.S. 597, 611, 133 S. Ct. 2139, 186 L. Ed. 2d 139 (2013)
(internal quotation marks omitted).
Galindo’s argument that he has alleged facts that, if proved,
would amount to structural error rests primarily on the U.S.
Supreme Court’s opinion in Vuitton, supra. In that case, after
parties had allegedly violated an injunction, a federal court
appointed attorneys for the opposing party as special prosecu-
tors to pursue a criminal contempt action. After convictions
were entered for contempt, the contempt defendants filed an
appeal contending that the appointment of special prosecu-
tors with an interest in the outcome violated their right to
be prosecuted by an impartial prosecutor. Under its supervi-
sory power over the federal courts, the U.S. Supreme Court
reversed and held that “counsel for a party that is the benefi-
ciary of a court order may not be appointed as prosecutor in
a contempt action alleging a violation of that order.” Id., 481
U.S. at 809.
A four-justice plurality of the U.S. Supreme Court in Vuitton
also concluded that the error was not subject to harmless error
review. The plurality reasoned that appointing an interested
prosecutor has pervasive effects “and therefore requires scru-
tiny of . . . the conduct of an entire prosecution, rather than
simply a discrete prosecutorial decision.” Id., 481 U.S. at 812.
The plurality determined that because it would be very difficult
to determine any effect the conflict had on the special prosecu-
tor’s discretion, harmless error review should not be available.
In an opinion concurring in part and dissenting in part, three
justices disagreed with the plurality’s determination that the
issue was not subject to harmless error review.
We disagree with Galindo’s argument that Vuitton compels
the conclusion that he has alleged facts that, if proved, would
amount to structural error. First, Vuitton was not decided
based on the Due Process Clause, but on the Court’s supervi-
sory power over contempt proceedings. See Webber v. Scott,
390 F.3d 1169 (10th Cir. 2004). See, also, Bruce A. Green
& Rebecca Roiphe, Rethinking Prosecutors’ Conflicts of
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Interest, 58 B.C. L. Rev. 463 (2017). Further, the portion of
Vuitton finding structural error upon which Galindo relies
was not joined by a majority of the Court. See Webber v.
Scott, supra (observing that plurality of court in Vuitton found
appointment of private prosecutor was not subject to harmless
error analysis).
While the foregoing facts persuade us that Vuitton is not
binding in this case, even if it were, we believe the facts
here are distinguishable. The conflict that posed a problem
in Vuitton was that the special prosecutors were counsel to a
party that was a beneficiary of the court order the contempt
defendants were alleged to have violated. In that situation,
the special prosecutors could use the threat of prosecution as
a weapon in civil negotiations and therefore had an interest
in pursuing and obtaining a conviction. As discussed above,
the Vuitton plurality concluded that automatic reversal was
required, in part because it did not believe it would be possible
to determine how the special prosecutor’s interest in the con-
tempt proceeding affected the various discretionary decisions
that would have been made during the case.
The conflict Galindo has alleged is different. His allegations
do not suggest that the county attorney had a personal interest
against Galindo or in a particular outcome in Galindo’s case
such that the entire prosecution or penalty phase is called into
question. Rather, Galindo alleges that the county attorney had
an interest in being able to use Abendano as a witness against
Galindo as part of an effort to shield himself from criminal
investigation and an interest in failing to disclose his own
connections to the drug ring. These interests, Galindo alleges,
prompted the county attorney to rely on Abendano as a wit-
ness in support of the allegation that Galindo was involved
in the Lundell murder and to fail to disclose his allegedly
unsavory connections to Abendano and others who testified
regarding the Lundell murder. According to Galindo, then,
the alleged conflict influenced how the prosecutor went about
trying to prove that Galindo was involved in the Lundell
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murder. As Galindo himself alleges in his motion for postcon-
viction relief, the conflict of interest “undermines confidence
in the jury’s verdict regarding Lundell.”
We recognize that Galindo’s brief speculates that the alleged
conflict of interest “may have also influenced [the county
attorney’s] decision to even seek the death penalty against
Galindo.” Brief for appellant at 64. Galindo’s motion, however,
does not refer to such a theory or make such an allegation.
Because the district court could not err by failing to consider
this theory not presented in the postconviction motion, we do
not consider it here. See State v. Ammons, 314 Neb. 433, 900
N.W.2d 897 (2023).
With the proper alleged conflict in view, we do not believe
Galindo has alleged facts that, if proved, would amount to
structural error, for reasons we will explain.
Most constitutional errors are not structural errors and are
thus subject to harmless error analysis. See, Rose v. Clark,
478 U.S. 570, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)
(structural errors are “the exception and not the rule”). A
defining characteristic of errors that are subject to harmless
error analysis is that they occur “during the presentation of
the case to the jury” and therefore may “be quantitatively
assessed in the context of other evidence presented in order
to determine whether [the] admission was harmless beyond a
reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307,
308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Structural
error, on the other hand, “def[ies] analysis by ‘harmless-error’
standards” because it “affect[s] the framework within which
the trial proceeds” and is not “simply an error in the trial
process itself.” Id., 499 U.S. at 309, 310. See, also, Brecht v.
Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed.
2d 353 (1993) (explaining that structural errors “infect the
entire trial process”). The U.S. Supreme Court has instructed
that “if the defendant had counsel and was tried by an impar-
tial adjudicator, there is a strong presumption that any other
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errors that may have occurred are subject to harmless-error
analysis.” Rose v. Clark, 478 U.S. at 579.
We believe the prosecutorial conflict of interest alleged by
Galindo is not structural error. As we have discussed, Galindo
has not alleged facts suggesting that the county attorney had a
particular ax to grind against him or an interest in a particular
outcome in his prosecution. Rather, Galindo’s allegations, at
most, suggest that the county attorney had an interest in hav-
ing Abendano offer testimony regarding one aggravator in the
penalty-phase proceedings and in failing to disclose his own
criminal connections to others who testified against Galindo
with respect to that same aggravator. Even assuming it was
the county attorney’s personal interests that led him to pursue
and present this testimony and fail to disclose evidence that
would cast doubt on the same, the impact of that evidence
on Galindo’s eventual death sentences can “be quantitatively
assessed in the context of other evidence presented in order
to determine whether its admission was harmless beyond a
reasonable doubt” and would not infect the entire trial proc­
ess. Arizona v. Fulminante, 499 U.S. at 308. We note that
several courts both before and after the U.S. Supreme Court’s
decision in Vuitton have either subjected prosecutorial con-
flict of interest claims to harmless error review or held that a
defendant raising such a claim must make some showing of
prejudice. See, e.g., Webber v. Scott, 390 F.3d 1169 (2004);
U.S. v. Terry, 17 F.3d 575 (2d Cir. 1994); United States v.
Heldt, 668 F.2d 1238 (D.C. Cir. 1981); Ganger v. Peyton, 379
F.2d 709 (4th Cir. 1967); Bruce A. Green & Rebecca Roiphe,
Rethinking Prosecutors’ Conflicts of Interest, 58 B.C. L. Rev.
463 (2017). We similarly conclude that the allegations in
Galindo’s motion, even if proved, would not amount to struc-
tural error.
Because Galindo has not alleged facts that would amount
to structural error, our analysis of this issue is not complete,
even assuming he has alleged facts that would amount to a
constitutional violation. Our cases have recognized that in
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Nebraska, postconviction relief is a very narrow category
of relief, available only to remedy prejudicial constitutional
violations that render the judgment void or voidable. See,
e.g., State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).
Consistent with that understanding, we have held that the
defendant in a postconviction proceeding has the burden of
alleging and proving that a claimed error is prejudicial. See,
e.g., State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007). We
have also recognized that an error is not prejudicial if we are
persuaded that it is harmless beyond a reasonable doubt. See,
e.g., State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023).
With all these principles in mind, we understand our task as
follows: We must review Galindo’s motion and determine
if he has alleged facts which, if proved, would amount to a
prejudicial constitutional error, i.e., one that is not harmless
beyond a reasonable doubt. If not, he is not entitled to an evi-
dentiary hearing.
Before turning to that analysis, we digress briefly to address
an objection we anticipate Galindo might lodge to our approach.
We do not believe our approach is inconsistent with the U.S.
Supreme Court’s opinion in Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and its progeny to
the extent those cases hold that the prosecution has the burden
of demonstrating that an error is harmless. First, we note that
while it is clear that the Chapman harmless error standard
must be applied when constitutional error is found on a direct
appeal, it is far less clear that a state court must apply that
standard in a collateral attack on convictions such as these.
Indeed, some state courts do not apply the Chapman harmless
error standard in postconviction challenges to a conviction.
See, e.g., Banks v. Com’r of Correction, 339 Conn. 1, 259 A.3d
1082 (2021) (collecting cases from state courts declining to
apply Chapman harmless error standard on collateral review
of constitutional errors); Matter of Hagler, 97 Wash. 2d 818,
826, 650 P.2d 1103, 1108 (1982) (“[o]n collateral review, we
shift the burden to the petitioner to establish that the error
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was not harmless”). See, also, Brown v. Davenport, __ U.S. __,
142 S. Ct. 1510, 1530, 212 L. Ed. 2d 463 (2022) (“Chapman
merely announced the default burden of proof for evaluating
constitutional errors on direct appeal”). And the U.S. Supreme
Court has held that federal courts, when entertaining collateral
constitutional challenges to state court convictions, should
apply a standard other than the Chapman harmless error stan-
dard. See Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993).
But even setting to the side whether we are obligated to
apply the Chapman harmless error standard in this postconvic-
tion proceeding, we do not believe our approach is inconsistent
with that standard. In Chapman itself, the Court said it was
holding that “before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” 386 U.S. at 24. Courts
have understood Chapman to place a burden of persuasion
on the prosecution to show that any error was harmless, see,
e.g., U.S. v. Crochiere, 129 F.3d 233 (1st Cir. 1997), and to
require that doubts about whether the standard has been met
be resolved in favor of the defendant, see O’Neal v. McAninch,
513 U.S. 432, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). But
the approach we apply today does not shift any burden of
persuasion or require the resolution of close cases against the
defendant. Instead, we consider whether, assuming Galindo
proves the facts alleged in his motion, we can nonetheless
declare a belief that any constitutional error based on those
allegations would be harmless beyond a reasonable doubt. We
proceed to that analysis now.
Having decided to subject Galindo’s prosecutorial conflict
of interest claim to harmless error analysis, we conclude
that he is not entitled to an evidentiary hearing on this issue,
because, assuming he can establish the requisite conflict of
interest, we find beyond a reasonable doubt that it would
not amount to more than harmless error. As discussed above,
Galindo asserted in his motion that the alleged prosecutorial
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conflict of interest affected the way the county attorney went
about proving that he was involved in the killing of Lundell
and undermines confidence in the jury’s finding on that issue.
But even if the alleged conflict affected the evidence the
county attorney presented and failed to disclose regarding the
killing of Lundell, we are confident beyond a reasonable doubt
that even without any evidence of Galindo’s involvement in
killing Lundell and concealing his body, the sentencing panel
would have imposed the same sentences.
Omitting the Lundell murder and resulting aggravating
circumstance from consideration would leave multiple aggra-
vating circumstances. Evidence connecting Galindo to the
Lundell murder served to prove the aggravating circumstance
that Galindo had a substantial prior history of serious assaul-
tive or terrorizing criminal activity. See § 29-2523(1)(a).
Absent this aggravating circumstance, there are three aggrava-
tors which Galindo has not challenged on postconviction
and which the sentencing panel found “significant and sub-
stantial.” These aggravators would have remained to justify
imposition of the death penalty under § 29-2522(1) and for
the sentencing panel to weigh against any mitigating circum-
stances it found pursuant to § 29-2522(2): The murders were
committed in an effort to conceal the commission of a crime
or the identity of the perpetrator of such crime; at the time
each murder was committed, another murder had been com-
mitted; and at the time each murder was committed, Galindo
knowingly created a great risk of death to at least several
people. See § 29-2523(1)(b), (e), and (f). See, also, State v.
Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001) (one aggra-
vating circumstance may be sufficient under our statutory
system for sentencing court to conclude imposition of death
penalty is appropriate).
We are also confident that removing evidence of the
Lundell murder would not have made an appreciable dif-
ference in the mitigators that the sentencing panel applied.
The sentencing panel did not find any statutory mitigators to
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exist. As we explained earlier, although the sentencing panel
mentioned the Lundell murder in eliminating two statutory
mitigators from consideration—that the offender had “no sig-
nificant history of prior criminal activity,” § 29-2523(2)(a), and
that the offender “acted under unusual pressures or influences
or under the domination of another person,” § 29-2523(2)
(b)—it was but one of numerous factors the sentencing panel
cited in deciding not to credit these mitigators to Galindo. We
have no reasonable doubt that the sentencing panel still would
not have given Galindo the benefit of these statutory mitigators
if the Lundell murder had been taken out of the equation. We
conclude beyond a reasonable doubt that the sentencing panel
would not have found mitigating circumstances to approach or
exceed at least three “significant and substantial” aggravating
circumstances. See § 29-2522(2).
We find confirmation for our approach and our conclusion
in State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
Like Galindo, Sandoval was sentenced to death for each of the
five homicides committed during the bank robbery. On direct
appeal, he argued that the district court erred in overruling
his objection to the jury instruction for the (1)(d) aggravator.
We found error, but we determined that it was harmless. Our
harmless error analysis examined whether the sentencing panel
would have imposed the death penalty beyond a reasonable
doubt absent consideration of the (1)(d) aggravator and con-
cluded it would have. In reaching this conclusion, we applied
the aggravating circumstances in § 29-2523(1)(b), (e), and (f)
and observed that the sentencing panel assigned each aggrava-
tor “‘significant and substantial’” weight. State v. Sandoval,
280 Neb. at 363, 788 N.W.2d at 218. We reasoned that had the
sentencing panel considered these three aggravators alongside
no statutory mitigators and only one nonstatutory mitigator—
Sandoval’s bad childhood—to which the panel gave “‘little
weight,’” it would have imposed the death sentences beyond a
reasonable doubt. Id.
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Galindo argues that the district court erred in referencing
Sandoval in concluding that Galindo was not entitled to an
evidentiary hearing on his postconviction claims. He asserts
this amounted to “simply treat[ing] Galindo like Sandoval,”
brief for appellant at 40, and deprived him of “precision that
individualized consideration demands.” See Stringer v. Black,
503 U.S. 222, 231, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992).
We agree that our harmless error determination in Sandoval
does not automatically mean that any prosecutorial conflict
of interest here was harmless. At the same time, however, we
find Sandoval to be instructive as to how we perform a harm-
less error analysis when removing an aggravating circumstance
from consideration.
We further conclude beyond a reasonable doubt that if the
Lundell murder had not been before the sentencing panel, it
would still not have found that death sentences were excessive
or disproportionate to the penalty imposed in similar cases, con-
sidering both the crime and the defendant. See § 29-2522(3). As
we have already observed, this inquiry does not require a court
to “‘color match’” cases precisely. See State v. Ellis, 281 Neb.
571, 613, 799 N.W.2d 267, 302 (2011). It asks only whether
the cases being compared are sufficiently similar, considering
both the crime and the defendant, to provide the court with a
useful frame of reference for evaluating Galindo’s sentences.
See id. Above, we noted the comparative cases considered by
the sentencing panel and by this court on direct appeal. See
State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). We
further noted that Sandoval and Vela, Galindo’s accomplices,
were also sentenced to death. See, State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010) (affirmed on direct appeal); Vela
I, supra (affirmed on direct appeal). Taking the Lundell murder
out of the calculus, any impact on this proportionality analysis
is negligible. Beyond a reasonable doubt, we conclude that
even with this adjustment, the sentencing panel would not have
determined death sentences to be excessive or disproportionate
in Galindo’s case.
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Although we conclude on the record before us that Galindo’s
prosecutorial conflict of interest claim could amount to nothing
more than harmless error and he is therefore not entitled to an
evidentiary hearing on the issue, our decision should in no way
be understood as minimizing or countenancing the seriousness
of the allegations against the county attorney in this case. It
would be a great understatement to say that the county attorney
would be deserving of serious condemnation if these allega-
tions are true. Our analysis here, however, must principally
focus not on the blameworthiness of the county attorney, but
on whether Galindo sufficiently alleged a claim for postconvic-
tion relief. For the reasons we have discussed, we conclude that
he has not. We find that the district court did not err in declin-
ing to grant an evidentiary hearing on this issue.

11. Prosecutorial Misconduct: Knowing
Use of False Testimony
Finally, Galindo relies on the well-established rule that a
criminal defendant’s due process rights are violated whenever
the prosecution’s case includes false evidence that is mate-
rial to the outcome, which the prosecution either knew or
should have known was false. See, Giglio v. United States,
405 U.S. 150, 92 S. Ct. 76, 31 L. Ed. 2d 104 (1972); Napue
v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217
(1959). Galindo assigns that the district court erred in denying
him an evidentiary hearing on his postconviction claims that
the State violated his due process rights when it knowingly
introduced false testimony by Barritt, Animas, and Abendano
at the aggravation hearing. For all three witnesses, that testi-
mony was confined to matters relating to the Lundell murder.
Even assuming these postconviction claims allege the know-
ing use of false testimony and are not procedurally barred, we
conclude Galindo cannot show the claimed false testimony
was material.
As we have explained, Barritt, Animas, and Abendano tes-
tified that Galindo admitted he assisted in killing Lundell
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and disposing of his body. Citing Barritt’s testimony at the trial
of one of Galindo’s accomplices, Galindo argues that he was
entitled to postconviction relief on his claim that the county
attorney knowingly presented false evidence at his aggravation
hearing when Barritt testified that she had not been promised
anything in exchange for information about the Lundell mur-
der. Regarding Animas’ testimony that Galindo said he par-
ticipated in killing and disposing of Lundell’s body, Galindo
asserts that the fact that he never received a requested record-
ing of a police interview in which Animas implicated Galindo,
combined with Animas’ pretrial and posttrial statements aver-
ring that Galindo said he was not involved in any way with
Lundell’s death, “suggests” that the county attorney knew
Animas’ testimony at the aggravation hearing was false. Brief
for appellant at 60. And Galindo posits that the “circumstances
surrounding” Abendano—his status as a jailhouse informant
and his and the county attorney’s drug-ring associations—
“suggest his testimony cannot be trusted.” Id. at 59.
When we recall the fundamental principles that apply to
postconviction review, it is not clear to us that any of these
claims, at the most basic level, qualify for an evidentiary
hearing. For instance, we have consistently said that a motion
for postconviction relief cannot be used to secure review
of issues that were known to the defendant and which were
or could have been litigated on direct appeal; and we see
indications in the record that Galindo could have addressed
Barritt’s allegedly false testimony on direct appeal. See State
v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). See, also,
State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022). We
have also repeatedly said that an evidentiary hearing is not
required on a motion for postconviction relief when the
motion alleges only conclusions of fact or law without sup-
porting facts. See State v. Lessley, supra. With this proposi-
tion in mind, we question whether Galindo’s false testimony
allegations pertaining to Barritt, Animas, and Abendano assert
facts showing that their testimony was indeed false and that
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the prosecution knew it. But even assuming without decid-
ing that Galindo’s false testimony claims have surmounted
the aforementioned obstacles, we conclude that they cannot
succeed, because Galindo cannot show the alleged false testi-
mony was material.
Regarding materiality, it has long been held that “a convic-
tion obtained by the knowing use of perjured testimony is
fundamentally unfair, and must be set aside if there is any rea-
sonable likelihood that the false testimony could have affected
the judgment of the jury.” United States v. Agurs, 427 U.S. 97,
103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). See, also, State
v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012), disap-
proved on other grounds, State v. Avina-Murillo, 301 Neb. 185,
917 N.W.2d 865 (2018). In this challenge to the penalty-phase
proceedings, application of that materiality standard would
require that Galindo’s death sentences be set aside if there was
any reasonable likelihood that the false testimony could have
affected those sentences.
We are aware that there is some disagreement among courts
as to whether, in a collateral attack on a conviction, the defend­
ant is entitled to relief merely upon a showing that there was
a knowing presentation of false testimony and a satisfaction
of the materiality standard described above. This disagreement
is, in part, about the scope of the U.S. Supreme Court’s opinion
in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123
L. Ed. 2d 353 (1993). Brecht held that in determining whether
relief should be granted in a collateral attack on a conviction,
federal courts should ask whether the error “‘had substantial
and injurious effect or influence in determining the jury’s
verdict,’” rather than the more defendant-friendly harmless-
beyond-a-reasonable-doubt standard that applies on direct
review. Id., 507 U.S. at 637, quoting Kotteakos v. United States,
328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). Some
federal courts, in reliance on Brecht, have held that such relief
should only be granted on a knowing presentation of false
testimony claim raised in a collateral attack if the standard
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articulated in Brecht is satisfied. See, e.g., Rosencrantz v.
Lafler, 568 F.3d 577 (6th Cir. 2009). Other federal courts dis-
agree and have held that the Brecht standard does not apply
to a knowing presentation of false testimony claim. See, e.g.,
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005). Beyond that
disagreement, courts also divide on whether the Brecht stan-
dard is ever proper as a harmlessness standard for collateral
review of constitutional errors in state courts. See, e.g., Banks
v. Com’r of Correction, 339 Conn. 1, 259 A.3d 1082 (2021)
(collecting cases).
In this case, we see no need to wade into the disagreements
referenced above, because we find that Galindo is not entitled
to an evidentiary hearing even assuming the Brecht standard
does not apply. We reach this conclusion because even if his
allegations are proved, there is no reasonable likelihood that the
false testimony could have affected Galindo’s death sentences.
As to why that is the case, there is little left to say. We have
already explained that we are confident beyond a reasonable
doubt that the sentencing panel would have imposed the same
sentences absent any evidence regarding the Lundell murder.
All of the testimony that is the subject of Galindo’s knowing
presentation of false evidence claim related to the Lundell mur-
der. And the materiality standard applicable to such claims has
been held to be equivalent to the harmless-beyond-a-reasonable
doubt standard. See, United States v. Bagley, 473 U.S. 667, 105
S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Haskell v. Superintendent
Greene SCI, 866 F.3d 139 (3d Cir. 2017). Accordingly, we
conclude that Galindo’s motion does not contain factual alle-
gations which, if proved, constitute an infringement of his
constitutional rights. See State v. Lessley, 312 Neb. 316, 978
N.W.2d 620 (2022). The district court did not err in denying
Galindo an evidentiary hearing on his postconviction claim that
the prosecution violated his due process rights by knowingly
presenting false testimony.
The same reasoning provides an alternative basis for our
conclusion that Galindo is not entitled to an evidentiary
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hearing on his claim that the State violated his right to counsel
under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199,
12 L. Ed. 2d 246 (1964), and its progeny, as a result of the
county attorney’s alleged elicitation of statements from him via
informants. The statements Galindo alleges were elicited from
him or fabricated in violation of his right to counsel pertained
solely to the Lundell murder, and Massiah violations are sub-
ject to harmless error review. See Milton v. Wainwright, 407
U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972).
V. CONCLUSION
For the foregoing reasons, we affirm the district court order
denying Galindo postconviction relief without an eviden-
tiary hearing.
Affirmed.
Heavican, C.J., and Freudenberg, J., not participating.
Papik, J., concurring in part, and in part dissenting.
I agree with almost all of the majority opinion. Galindo
raised numerous claims in his postconviction motion, and, with
respect to all but one of those claims, I do not believe he was
entitled to an evidentiary hearing for the reasons the majority
articulates. In my view, however, the district court should have
granted an evidentiary hearing on Galindo’s claim that his due
process rights were violated as a result of a conflict of interest
on the part of the county attorney. I write separately to explain
my reasoning.
Galindo’s prosecutorial conflict of interest claim is rooted in
allegations that the county attorney was involved in a criminal
drug ring. Galindo does not challenge his underlying convic-
tions but claims that the county attorney’s criminal exposure
influenced his decisions in the aggravation phase of Galindo’s
case. Specifically, Galindo’s postconviction motion alleged
that the aggravation phase of his case provided the county
attorney with an opportunity to attempt to shield himself from
federal scrutiny of his own criminal activities through the
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following scheme: Participants in the drug ring would testify
against Galindo by implicating him in the death of Travis
Lundell, and that testimony would allow the county attorney
to recommend against further federal investigation of the drug
ring’s participants and reduce the chances that federal authori-
ties would discover his own connections to the drug ring.
As the majority opinion observes, there is not a great deal
of authority from the U.S. Supreme Court or other courts
on whether and under what circumstances a defendant’s due
proc­ess rights can be violated based on a prosecutorial con-
flict of interest. Even so, I believe it follows from general due
process principles that Galindo’s allegations, if proved, could
form the basis of a due process violation.
Although the U.S. Supreme Court has said that courts are
not free in defining due process to impose their own personal
and private notions of fairness, it has also recognized that the
Due Process Clause stands in the way of state action that “vio-
lates those fundamental conceptions of justice which lie at the
base of our civil and political institutions, . . . and which define
the community’s sense of fair play and decency.” Dowling v.
United States, 493 U.S. 342, 353, 110 S. Ct. 668, 107 L. Ed.
2d 708 (1990) (internal quotation marks omitted). One of the
fundamental aspects of our criminal justice system is that, as
this court recognized over a century ago, the prosecutor is
“called upon to exercise a sound discretion” in deciding who
and what to prosecute, and “there should not be anything in
the way of private interest to possibly sway that judgment or
to tempt him to depart from a disinterested and conscientious
discharge of his duty.” Ress v. Shepherd, 84 Neb. 268, 269-70,
120 N.W. 1132, 1133 (1909). If, as alleged here, a prosecu-
tor’s personal interests in avoiding criminal investigation and
prosecution influenced his or her prosecutorial decisions in a
particular case, that would seem to violate fundamental con-
ceptions of justice and thus be capable of forming the basis
of a due process violation.
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But the idea that Galindo’s allegations, if proved, could form
the basis of a due process claim is not the primary point of
contention regarding this claim. The State made no argument
that Galindo’s allegations of a prosecutorial conflict of interest
could not form the basis of a due process claim, and the major-
ity likewise assumes that Galindo has alleged facts regarding a
prosecutorial conflict of interest that, if proved, could support
a due process violation.
At issue instead is whether Galindo would automatically be
entitled to relief if he proved the alleged conflict of interest
or whether some consideration must also be given to whether
the conflict affected the ultimate outcome and, if so, how to
conduct that analysis. On this point, Galindo argues that the
prosecutorial conflict of interest is the type of structural error
that would automatically entitle him to relief if he proved the
conflict of interest allegations. The majority rejects this argu-
ment and finds that even if Galindo proved his conflict of inter-
est allegations, the conflict could not amount to anything more
than harmless error.
As there is not a lot of clear authority on whether a defend­
ant has a due process right to a disinterested prosecutor, it
should come as no surprise that there is also not a lot of
clear authority on whether the analysis of such a due process
claim requires consideration of whether the conflict of interest
harmed the defendant and, if so, the standard for considering
that question. Galindo relies heavily on Young v. U. S. ex rel.
Vuitton et Fils S. A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed.
2d 740 (1987), for his argument that a conviction achieved by
a conflicted prosecutor is structural error and thus requires no
analysis of how the conflict might have affected the outcome.
As the majority correctly points out, however, the reversal in
that case was not on constitutional grounds and the portion of
that opinion finding the error was structural was not joined by
a majority of the court.
Further, among those courts that have concluded that a
due process claim based on a conflicted prosecutor is subject
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to some type of assessment of harm, courts have applied a
variety of standards. Some courts seem to have concluded that
a defendant has a due process right to a disinterested prosecu-
tor, but that even if the prosecutor is conflicted, the claim is
subject to harmless error review. See, e.g., Ganger v. Peyton,
379 F.2d 709 (4th Cir. 1967). See, also, Young, supra (Powell,
J., concurring in part and in part dissenting; Rehnquist, C.J.,
and O’Connor, J., join) (concluding that participation of inter-
ested prosecutors should be subject to harmless error review).
Some have determined that a defendant must prove that the
conflict resulted in prejudice. See, e.g., U.S. v. Heldt, 668 F.2d
1238 (D.C. Cir. 1981). See, also, Bruce A. Green & Rebecca
Roiphe, Rethinking Prosecutors’ Conflicts of Interest, 58 B.C.
L. Rev. 463 (2017). Still others have required the defendant
to show only a “reasonable potential for prejudice.” See, e.g.,
People v. Zimmer, 51 N.Y.2d 390, 395, 414 N.E.2d 705, 707,
434 N.Y.S.2d 206, 208 (1980). One court has additionally
urged that the standard should shift depending on whether the
challenge to the prosecutor’s independence is made at trial, on
direct appeal, or in a collateral attack. See Wright v. United
States, 732 F.2d 1048 (2d Cir. 1984).
Given the lack of clear guidance from the U.S. Supreme
Court and the variety of approaches employed by other courts
in evaluating a due process claim based on a conflicted pros-
ecutor, it is, in my view, difficult to determine how such a
claim should ultimately be resolved. At this stage of the case,
however, we are not ultimately resolving Galindo’s claim. We
are deciding only whether he should receive an evidentiary
hearing on the claim. And even assuming that the standard
most friendly to the State ultimately applies, i.e., Galindo must
prove both the alleged conflict on the part of the county attor-
ney and that the conflict prejudiced him, I believe Galindo’s
allegations are sufficient to merit an evidentiary hearing.
As detailed above, Galindo has alleged that the county
attorney had a conflict arising from his own personal crimi-
nal exposure. As for prejudice, I acknowledge that Galindo
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primarily alleges that the county attorney’s personal interests
influenced the way he went about attempting to prove that
Galindo was involved in the Lundell murder. And, I share the
majority’s confidence that the sentencing panel would have
imposed the same sentences even if the jury had not found the
aggravating circumstance based on the Lundell murder. That
said, I do not believe we can assess whether a prosecutorial
conflict of interest prejudiced Galindo based solely on ask-
ing whether the sentencing panel would have imposed death
sentences even if the Lundell murder was taken out of the
equation. In addition to allegations that the county attorney’s
alleged conflict undermines confidence in the jury’s findings
regarding the Lundell murder, Galindo’s postconviction motion
alleged that the county attorney’s conflict affected the fairness
of the proceedings and would have made the county attorney
subject to a motion for disqualification had Galindo known of
the conflict at the time. Galindo thus alleged that the county
attorney’s participation in the penalty phase of the proceedings
violated his right to due process. Accordingly, I believe preju-
dice must be assessed by determining whether the same sen-
tences would have been imposed had the case been prosecuted
by a nonconflicted prosecutor.
In my view, determining what would have happened if
the case was prosecuted by a nonconflicted prosecutor is not
as simple as analyzing the evidence introduced at trial and
the aggravating and mitigating circumstances found by the
jury and the sentencing panel and determining whether the
absence of a particular aggravating circumstance would have
affected the ultimate sentences imposed. As the U.S. Court
of Appeals for the Fourth Circuit explained in rejecting an
argument that the participation of a conflicted prosecutor was
harmless error, “we do not know and cannot now ascertain
what would have happened if the prosecuting attorney had
been free to exercise the fair discretion which he owed to all
persons charged with crime in his court.” Ganger v. Peyton,
379 F.2d 709, 714 (4th Cir. 1967). To be sure, it strikes me
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as possible, and perhaps even likely, that a nonconflicted
prosecutor also would have successfully pursued the death
penalty against Galindo. But given the substantial discretion
that is invested in prosecutors and, more importantly, the
lack of any evidence at this stage as to what a nonconflicted
prosecutor would have done, I do not see a basis to now
determine that Galindo could not establish that the outcome
of the penalty phase would have been different with a disin-
terested prosecutor.
Because I cannot say at this stage that Galindo is incapable
of proving a constitutional violation that would render his sen-
tences void or voidable, I would grant him an evidentiary hear-
ing on his claim that the county attorney’s conflict of interest
violated his due process rights. Even if granted this hearing,
Galindo would be a long way from obtaining relief from his
death sentences; while his allegations about the county attor-
ney’s behavior are serious to say the least, at this stage, they
are mere allegations. But, for the reasons explained herein, I
believe he is at least entitled to an evidentiary hearing on this
claim. I respectfully dissent from the portion of the majority
opinion that holds otherwise.
Miller-Lerman, J., joins in this concurrence and dissent.
Miller-Lerman, J., dissenting in part.
Along with Justice Papik’s partial dissent in which I join, I
write summarily only to say that in a death penalty case, the
penalty phase prosecuted by a prosecutor with a conflict should
not be left unexamined. I would grant an evidentiary hearing
on the allegations pertaining to the penalty proceedings.