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NADEEM v. STATE

Cite as 298 Neb. 329

Mohammed Nadeem, appellant, v. 

State of Nebraska, appellee.

___ N.W.2d ___

Filed December 8, 2017. No. S-16-113.

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court 

reviews a district court’s order granting a motion to dismiss de novo, 

accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. For purposes of a motion to dismiss, a 

court may consider some materials that are part of the public record or 

do not contradict the complaint, as well as materials that are necessarily 

embraced by the pleadings.

3. Pleadings: Complaints. Documents embraced by the pleadings are 

materials alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleadings.

4. ____: ____. Documents embraced by the complaint are not considered 

matters outside the pleadings.

5. Res Judicata: Judgments. Res judicata bars relitigation of any right, 

fact, or matter directly addressed or necessarily included in a former 

adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) 

the former judgment was on the merits, and (4) the same parties or their 

privies were involved in both actions.

6. Convictions: Claims: Pleadings. Under Neb. Rev. Stat. § 29-4603 

(Reissue 2016), a party alleging a wrongful conviction claim must plead 

(1) conviction and sentence for a felony for which the party has served 

at least part of the sentence; (2) pardon, vacation of the conviction, or 

reversal and remand without a resulting retrial and conviction; (3) actual 

innocence of the crime; and (4) that the plaintiff did not commit or suborn perjury, fabricate evidence, or otherwise make a false statement to 

cause or bring about such conviction or the conviction of another, except 

for coerced confessions or guilty pleas.

Nebraska Supreme Court Online Library

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

01/05/2018 01:13 AM CST
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NADEEM v. STATE

Cite as 298 Neb. 329

7. Sentences: Words and Phrases. Legal innocence is defined as the 

absence of one or more procedural or legal bases to support the sentence 

given to a defendant.

8. ____: ____. Actual innocence refers to the absence of facts that are prerequisites for the sentence given to a defendant.

9. Actions: Complaints. In determining whether a complaint states a 

cause of action, a court is free to ignore legal conclusions, unsupported 

conclusions, unwarranted inferences, and sweeping legal conclusions 

cast in the form of factual allegations.

Petition for further review from the Court of Appeals, Pirtle, 

Bishop, and Arterburn, Judges, on appeal thereto from the 

District Court for Lancaster County, Robert R. Otte, Judge. 

Judgment of Court of Appeals reversed, and cause remanded 

with directions.

Jeffry D. Patterson for appellant.

Douglas J. Peterson, Attorney General, and Ryan S. Post 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Kelch, J.

INTRODUCTION

Mohammed Nadeem filed a claim against the State for 

damages under the Nebraska Claims for Wrongful Conviction 

and Imprisonment Act.1 The district court granted the State’s 

motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6) for 

failure to state a claim. Nadeem appealed to the Nebraska 

Court of Appeals, which reversed the district court’s dismissal.2

 We granted the State’s petition for further review. 

Because Nadeem has not sufficiently pled a claim of actual 

innocence, we reverse, and remand to the Court of Appeals 

with directions to affirm the order of the district court.

1 Neb. Rev. Stat. §§ 29-4601 to 29-4608 (Reissue 2016).

2 Nadeem v. State, 24 Neb. App. 825, 899 N.W.2d 635 (2017).
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NADEEM v. STATE

Cite as 298 Neb. 329

FACTS

Background

Nadeem was convicted in 2010 of attempted first degree 

sexual assault and attempted third degree sexual assault of 

H.K., a minor. These offenses were based on an encounter that 

Nadeem had with a 14-year-old girl in 2009 when he was 22 

years old. The evidence presented at Nadeem’s criminal trial is 

summarized in his original direct appeal,3 but the facts according to Nadeem’s complaint are summarized below.

In 2009, Nadeem met a 14-year-old girl in a public library 

and engaged in conversation with her. Nadeem asked the girl 

questions such as how old she was, where she went to school, 

and whether she had a boyfriend. The girl told Nadeem that 

she was not allowed to give out her telephone number. Nadeem 

asked the girl if he could give her his telephone number, and 

she said, “‘I guess.’” Nadeem wrote down his telephone number for her and told her that he hoped she would call.

When the girl told her mother about her interaction with 

Nadeem, the mother became very upset. She complained to the 

head librarian, who suggested that she call the police.

The girl’s mother did call the police, and the next day, investigators invited the girl and her mother into their headquarters 

for recorded interviews. The investigators then had the girl 

make a recorded “‘controlled call’” to Nadeem, instructing the 

girl on what to say and how to respond to Nadeem. According 

to Nadeem, the purpose of the call was to induce him into a 

conversation with the girl that involved sexual content. The 

officers instructed the girl to tell Nadeem to meet her at the 

library and to bring a condom. Nadeem went to the library as 

requested, but did not bring a condom. Police met Nadeem 

there and arrested him.

Nadeem’s convictions for attempted first degree sexual 

assault and attempted third degree sexual assault of a minor 

3 State v. Nadeem, 19 Neb. App. 565, 809 N.W.2d 825 (2012), reversed 284 

Neb. 513, 822 N.W.2d 372.
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were ultimately vacated by the Court of Appeals.4 Although 

the Court of Appeals rejected Nadeem’s argument that there 

was insufficient evidence to sustain his convictions, it reversed 

Nadeem’s convictions and remanded the cause for a new trial 

based on ineffective assistance of counsel and based on the 

denial of a jury instruction for the defense of entrapment.5

The State sought further review with this court in 2013, 

which we denied. During that time, Nadeem completed his 

prison sentence.

Wrongful Conviction Claim

In 2015, Nadeem filed a claim against the State for compensation under the Nebraska Claims for Wrongful Conviction 

and Imprisonment Act, which claims are filed under the State 

Tort Claims Act.6 In part of Nadeem’s complaint, he alleged 

that he had been entrapped. The State then filed a motion to 

dismiss Nadeem’s claim, arguing that the affirmative defense 

of entrapment is legally insufficient to show actual innocence 

(as opposed to legal innocence), which is a required element 

of a wrongful conviction claim.7 The district court granted the 

motion, and Nadeem appealed.

The Court of Appeals determined that the district court 

erred in granting the State’s motion to dismiss. The majority did not consider whether the defense of entrapment was 

legally sufficient to show actual innocence. Instead, it noted 

that Nebraska has a notice pleading system and stated, “[T]he 

only issue we must decide is whether Nadeem sufficiently 

alleges that he was [actually] innocent of attempted first 

degree sexual assault.”8 Because his conviction was for an 

4 State v. Nadeem, No. A-10-981, 2013 WL 674158 (Neb. App. Feb. 26, 

2013) (selected for posting to court website).

5 Id.

6 See § 29-4607.

7 See Nadeem v. State, supra note 2.

8 Id. at 831, 899 N.W.2d at 639.
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attempted crime, the question was whether he “intentionally engaged in conduct which constituted a substantial step 

toward” the completed crime.9 The Court of Appeals concluded that because, “[i]n his complaint, Nadeem alleged that 

he did not have the requisite intent to commit the alleged 

crime and did not take a substantial step toward committing 

that crime,” he had made sufficient factual allegations to 

defeat the State’s motion to dismiss.10

The State’s petition for further review contends, among 

other things, that the Court of Appeals failed to consider its 

prior opinion in the criminal case, which Nadeem referenced 

in his complaint. Relevant to this contention, the Court of 

Appeals said:

We acknowledge that in this court’s previous 

opinion,[11] we specifically found that the evidence presented at Nadeem’s criminal trial was sufficient to sustain his convictions for attempted first degree sexual 

assault and for attempted third degree sexual assault. 

However, in the current appeal, we are analyzing only 

whether the allegations in Nadeem’s complaint are sufficient to state a cause of action under the [Nebraska 

Claims for Wrongful Conviction and Imprisonment] Act. 

As such, we are confined to review only the specific 

allegations in Nadeem’s complaint. We cannot look to 

evidence outside of the pleadings which may or may 

not be presented at a subsequent phase of these proceedings. We also cannot assess the nature and quality of the 

evidence presented in past proceedings to predict the 

outcome of this action.12

9 Id. at 832, 899 N.W.2d at 639.

10 Id. at 833, 899 N.W.2d at 640.

11 State v. Nadeem, supra note 4.

12 Nadeem v. State, supra note 2, 24 Neb. App. at 832-33, 899 N.W.2d at 

640.
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NADEEM v. STATE

Cite as 298 Neb. 329

ASSIGNMENTS OF ERROR

The State assigns that the Court of Appeals erred (1) in concluding that it was confined to review only the specific allegations in the complaint and (2) by not affirming the district 

court’s dismissal of the complaint.

STANDARD OF REVIEW

[1] We review a district court’s order granting a motion to 

dismiss de novo, accepting all allegations in the complaint 

as true and drawing all reasonable inferences in favor of the 

nonmoving party.13

ANALYSIS

Whether Court of Appeals Erred in

Not Considering Its Prior Opinion

The State first argues that the Court of Appeals erred in concluding that it was limited to looking at the face of Nadeem’s 

complaint and could not look to its prior opinion, which the 

court viewed as “evidence outside of the pleadings.”14 The 

State argues that the prior opinion is not outside the pleadings 

because it was “necessarily embraced by the complaint.”15

In support of its argument, the State cites DMK Biodiesel 

v. McCoy.

16

[2-4] In DMK Biodiesel, we held that for purposes of a 

motion to dismiss, a court may consider some materials that 

are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by 

the pleadings. We explained that documents embraced by 

the pleadings are materials alleged in a complaint and whose 

authenticity no party questions, but which are not physically 

13 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).

14 Nadeem v. State, supra note 2, 24 Neb. App. at 833, 899 N.W.2d at 640.

15 Memorandum brief for appellee in support of petition for further review 

at 4.

16 DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).
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attached to the pleadings.17 These documents are “not considered matters outside the pleadings.”18

We agree with the State that the Court of Appeals’ prior 

opinion is “embraced by the complaint.” In Nadeem’s complaint, he cites to the Court of Appeals’ 2013 opinion and 

refers to numerous statements made by the court in that opinion. Further, no party questions the authenticity of the opinion. Thus, to the extent that the Court of Appeals suggested 

that it could not consider the opinion in determining whether 

Nadeem’s complaint sufficiently alleged facts to state a cause 

of action, it was in error. However, as will be explained below, 

only limited portions of the opinion by the Court of Appeals 

are relevant to the matter before us.

Whether Court of Appeals Erred in Reversing

District Court’s Dismissal

We next address the State’s argument that the Court of 

Appeals erred in not affirming the district court’s dismissal 

because the “facts [from the Court Appeals’ prior opinion] 

show Nadeem cannot . . . establish his actual innocence.”19

[5] Although the Court of Appeals could have considered 

its prior opinion, wherein it found that there was sufficient 

evidence to sustain Nadeem’s conviction, the prior opinion 

does not necessarily preclude Nadeem from alleging actual 

innocence under § 29-4603(3),20 since his vacated conviction 

does not have any res judicata effect on his current claim. Res 

judicata bars relitigation of any right, fact, or matter directly 

addressed or necessarily included in a former adjudication if 

(1) the former judgment was rendered by a court of competent 

17 See id.

18 Id. at 980, 830 N.W.2d at 496.

19 Memorandum brief for appellee in support of petition for further review 

at 5.

20 See Neb. Rev. Stat. § 29-4603(3) (Reissue 2016) (that “he or she was 

innocent of the crime or crimes”).
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jurisdiction, (2) the former judgment was a final judgment, 

(3) the former judgment was on the merits, and (4) the same 

parties or their privies were involved in both actions.21 Here, 

although a final judgment was entered by the jury, the judgment has since been vacated and has thus been deprived of its 

conclusive character.22

The relevant issue at this stage of the litigation is whether 

Nadeem’s complaint sufficiently placed the State on notice 

of his wrongful conviction claim by setting forth “a short 

and plain statement of the claim” showing that he is entitled 

to relief.23

[6] Under § 29-4603, a party alleging a wrongful conviction claim must plead (1) conviction and sentence for a felony 

for which the party has served at least part of the sentence; 

(2) pardon, vacation of the conviction, or reversal and remand 

without a resulting retrial and conviction; (3) actual innocence of the crime; and (4) that the plaintiff “did not commit or suborn perjury, fabricate evidence, or otherwise make 

a false statement to cause or bring about such conviction or 

the conviction of another,” except for coerced confessions or 

guilty pleas.

The State does not dispute that Nadeem sufficiently alleged 

that he was convicted of and sentenced for a felony and 

served at least part of the sentence, that the conviction was 

vacated and the cause remanded without a resulting retrial 

and conviction, and that he did not commit or suborn perjury 

or fabricate evidence. However, the State does argue that 

Nadeem has not sufficiently alleged facts to support a finding 

of actual innocence.

21 State on behalf of Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998).

22 See 50 C.J.S. Judgments § 958 at 282 (2009) (“[a]s a general rule, when a 

judgment has been reversed on appeal, or vacated or set aside by the court 

which rendered it, it is deprived of its conclusive character . . .”).

23 See Neb. Ct. R. Pldg. § 6-1108(a).
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[7,8] First, in Hess v. State,

24 we delineated two distinct 

definitions of innocence—legal and actual. Legal innocence 

is defined as “‘[t]he absence of one or more procedural or 

legal bases to support the sentence given to a defendant,’”25

whereas actual innocence refers to “‘[t]he absence of facts that 

are prerequisites for the sentence given to a defendant.’”26 In 

other words, actual innocence means that a defendant did not 

commit the crime for which he or she is charged.27 Or, as the 

U.S. Supreme Court has explained, “A prototypical example 

of ‘actual innocence’ in a colloquial sense is the case where 

the State has convicted the wrong person of the crime.”28

Accordingly, a defendant must plead more than lack of intent 

to establish actual innocence.

[9] In determining whether a complaint states a cause of 

action, we are free to ignore legal conclusions, unsupported 

conclusions, unwarranted inferences, and sweeping legal conclusions cast in the form of factual allegations.29 Several of 

the allegations in Nadeem’s complaint contain quotations 

from the Court of Appeals’ opinion, wherein the Court of 

Appeals evaluated the evidence from Nadeem’s criminal trial. 

These are not factual allegations, but conclusions drawn by 

the Court of Appeals from evidence presented at Nadeem’s 

criminal trial, and thus, we do not consider them when evaluating his complaint.

In addition, several of the allegations in Nadeem’s complaint 

contain conclusory phrases, such as “hysterical speculation 

24 Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).

25 Id. at 563, 843 N.W.2d at 653 (quoting Black’s Law Dictionary 859 (9th 

ed. 2009)).

26 Id.

27 Hess v. State, supra note 24.

28 Sawyer v. Whitley, 505 U.S. 333, 340, 112 S. Ct. 2514, 120 L. Ed. 2d 269 

(1992).

29 Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574 

(2005).
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and overreaction,” “entirely innocent,” “complete absence of 

any evidence,” and “could not possibly be ‘ready and willing.’” In evaluating Nadeem’s complaint, we do not consider 

the information imparted by these unsupported conclusions.

Nadeem’s complaint does set forth that “[o]n August 6, 

2009, . . . Nadeem engaged [H.K.] in an innocent conversation 

while she was sitting in an open, public area of [a] Library.” 

But after reviewing Nadeem’s entire complaint and the Court 

of Appeals’ opinion, we discern that Nadeem’s reference to 

the August 6 encounter clearly describes only the initial contact Nadeem had with H.K. His complaint does not set forth 

how his later telephone conversation with H.K. or his going 

to meet H.K. at the library for a second time would reflect his 

actual innocence.

Excluding from Nadeem’s complaint conclusions drawn by 

the Court of Appeals and his own conclusory allegations, his 

complaint does not allege an absence of facts which reflects 

his actual innocence as we required in Hess.

30 Even after drawing all reasonable inferences of law and fact from Nadeem’s 

pleadings in his favor, we find Nadeem has not sufficiently 

pled a claim of actual innocence.

CONCLUSION

For the reasons set forth above, we reverse the decision of 

the Court of Appeals that reversed the district court’s order 

dismissing Nadeem’s complaint and remand the cause to the 

Court of Appeals with directions to affirm the order of the 

district court.

Reversed and remanded with directions.

Wright, J., not participating.

30 Hess v. State, supra note 24.