- 217 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

Charlene Marie, appellant, 

State of Nebraska, appellee

___ N.W.2d ___

Filed February 8, 2019. No. S-18-488.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

2. ____: ____. When reviewing an order dismissing a complaint, an appellate court accepts as true all facts which are well pled and the proper and 

reasonable inferences of law and fact which may be drawn therefrom, 

but not the plaintiff’s conclusions.

3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, 

accepted as true, to state a claim to relief that it plausible on its face.

4. Judgments: Jurisdiction: Claim Preclusion. Claim preclusion 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.

5. Claim Preclusion. The doctrine of claim preclusion bars relitigation not 

only of those matters actually litigated, but also of those matters which 

might have been litigated in the prior action.

6. ____. The doctrine of claim preclusion rests on the necessity to terminate litigation and on the belief that a person should not be vexed twice 

for the same cause.

Appeal from the District Court for Sheridan County: Travi

P. O’Gorman, Judge. Affirm

Daniel H. Friedman and Stephen A. Sael, of Friedman Law 

Offices, P.C., L.L.O., for appellant.

Nebraska Supreme Court Online Library

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

03/22/2019 08:06 AM CDT
- 218 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

Douglas J. Peterson, Attorney General, and Danielle Rowley 

for appellee.

Joshua I. Schwartz, of George Washington University 

Law School, Sarah P. Newell, of Nebraska Criminal Defense 

Attorneys Association, and Amy Miller, of American Civil 

Liberties Union of Nebraska Foundation, for amici curiae 

Professor Joshua I. Schwartz et al.

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

Papik, JJ

Heavican, C

INTRODUCTION

Charlene Marie filed a claim for damages under the Nebraska 

Claims for Wrongful Conviction and Imprisonment Act (Act).1

That claim was denied. Marie appeals. At issue on appeal is 

whether Marie can show that she was innocent of the crimes, 

as required by § 29-4603(3). We affirm.

FACTUAL BACKGROUND

Marie was convicted in 1999 for use of a deadly weapon 

to commit a felony and terroristic threats. She was sentenced 

to 2 to 15 years’ imprisonment for the use conviction and 2 

to 5 years’ imprisonment for the terroristic threats conviction. The alleged victim of her crimes was Marie’s husband, 

Kurt Oldenburg.

Marie appealed her sentences as excessive, and the Nebraska 

Court of Appeals agreed and resentenced her to 1 year’s 

imprisonment on each conviction.2 Because Marie had already 

served 2 years’ imprisonment, she was released.3 Marie was 

later pardoned by the Nebraska Board of Pardons on October 

3, 2016.

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

2 State v. Oldenburg, 10 Neb. App. 104, 628 N.W.2d 278 (2001).

3 Id.
- 219 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

Marie then filed a petition seeking damages under the Act. 

In that motion, Marie alleged that she was convicted, sentenced, served part of her sentence, and was pardoned and that 

she did not commit or suborn perjury, fabricate evidence, or 

knowingly make a false statement to cause her own conviction 

or the conviction of others.

Marie alleged that she was “actually innocent of the crimes 

for which she was wrongfully charged, convicted, sentenced, 

and imprisoned [and that she] did not threaten to commit any 

crime of violence with the intent to terrorize.” She further 

alleged that Oldenburg “lunged toward [her] and [as] she 

attempted to move the gun away[, he] grabbed [her] arm and 

the gun . . . discharged, injuring . . . Oldenburg [which] forced 

[her] to take the actions that she did.”

The State filed a motion to dismiss. At issue before the 

district court was whether Marie had, or could, show that she 

was innocent of the crimes for which she was charged, as 

required by § 29-4601(3). The Sheridan County District Court 

concluded that Marie could not prove that she was actually 

innocent and dismissed her complaint. Marie appeals.

ASSIGNMENTS OF ERROR

Marie alleges that the district court erred in finding that she 

could not prove “actual innocence” under the Act and accordingly dismissing her complaint.

STANDARD OF REVIEW

[1-3] A district court’s grant of a motion to dismiss is 

reviewed de novo.4 When reviewing an order dismissing a 

complaint, an appellate court accepts as true all facts which 

are well pled and the proper and reasonable inferences of law 

and fact which may be drawn therefrom, but not the plaintiff’s conclusions.5

 To prevail against a motion to dismiss for 

4 Tryon v. City of North Platte, 295 Neb. 706, 890 N.W.2d 784 (2017).

5 Id.
- 220 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

failure to state a claim, a plaintiff must allege sufficient facts, 

accepted as true, to state a claim to relief that it plausible on 

its face.6

ANALYSIS

Before we turn to Marie’s arguments on appeal, some background on the Act, and our case law on it, is helpful.

Section 29-4602 sets forth the purpose of the Act:

The Legislature finds that innocent persons who have 

been wrongly convicted of crimes and subsequently 

imprisoned have been uniquely victimized, have distinct 

problems reentering society, and have difficulty achieving legal redress due to a variety of substantive and 

technical obstacles in the law. The Legislature also finds 

that such persons should have an available avenue of 

redress. In light of the particular and substantial horror 

of being imprisoned for a crime one did not commit, 

the Legislature intends by enactment of the . . . Act that 

persons who can demonstrate that they were wrongfully 

convicted shall have a claim against the state as provided 

in the [A]ct.

Section 29-4603 sets forth the requirements for an individual 

to recover under the Act:

In order to recover under the . . . Act, the claimant 

shall prove each of the following by clear and convincing evidence:

(1) That he or she was convicted of one or more felony 

crimes and subsequently sentenced to a term of imprisonment for such felony crime or crimes and has served all 

or any part of the sentence;

(2) With respect to the crime or crimes under subdivision (1) of this section, that the Board of Pardons 

has pardoned the claimant, that a court has vacated the 

conviction of the claimant, or that the conviction was 

6 Id.
- 221 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

reversed and remanded for a new trial and no subsequent 

conviction was obtained;

(3) That he or she was innocent of the crime or crimes 

under subdivision (1) of this section; and

(4) That he or she 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, with respect to the crime or crimes under 

subdivision (1) of this section, except that a guilty plea, 

a confession, or an admission, coerced by law enforcement and later found to be false, does not constitute 

bringing about his or her own conviction of such crime 

or crimes.

We examined the Act in Hess v. State.7 There, the claimant argued that he did not have the burden to show that 

he was innocent, as required by § 29-4603(3), because he 

was presumed innocent, and that the State was required to 

prove his guilt. We rejected that claim, noting the difference 

between legal and actual innocence as set forth by the Act. We 

observed that § 29-4603(2) addressed legal innocence, while 

§ 29-4603(3) addressed actual innocence, and explained that 

the presumption of innocence fit with the former. In Hess, 

we also defined actual innocence to mean, in lay terms, that 

a “defendant did not commit the crime for which he or she 

is charged.”8

We also discussed the Act in Nadeem v. State.

9

 There, we 

held that the claimant failed to allege an absence of facts 

which reflected his actual innocence. We noted that a defendant must plead more than a lack of intent to establish actual 

innocence.

The primary issue on appeal is whether Marie’s amended 

complaint sufficiently alleged that she was actually innocent, 

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

8 Id. at 563, 843 N.W.2d at 653.

9 Nadeem v. State, 298 Neb. 329, 904 N.W.2d 244 (2017).
- 222 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

and further, whether she could prove that she was actually 

innocent. The State argued, and the district court agreed, 

that “there [was] no set of circumstances under which Marie 

[could] prove she [was] actually innocent of the crimes for 

which she was convicted of,” because “Marie’s attempt to 

relitigate the night of July 30, 1998, is barred by the doctrine of res judicata.” The district court further explained 

that this court had noted in Nadeem that res judicata, or 

claim preclusion, was not a bar to the wrongful conviction 

claim at issue, because the judgment of conviction had been 

vacated and deprived of its conclusive character. The district 

court noted:

The same cannot be said in Marie’s case.

In this case, Marie’s convictions were not vacated or 

deprived of their conclusive character. She received a 

pardon. . . . [A] pardon does not vacate a conviction or 

deprive the conviction of its conclusive character. Rather, 

a pardon eliminates punishment. Marie cannot establish 

actual innocence.

[4-6] On appeal, Marie argues that claim preclusion is 

inapplicable to a claim under the Act. Claim preclusion 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.10 The doctrine bars 

relitigation not only of those matters actually litigated, but also 

of those matters which might have been litigated in the prior 

action.11 The doctrine rests on the necessity to terminate litigation and on the belief that a person should not be vexed twice 

for the same cause.12

10 Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).

11 Id.

12 Id.
- 223 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

We agree with Marie. The practical effect of the district 

court’s reasoning is that a person whose conviction is reversed 

or vacated is not confined by the strictures of claim preclusion, while a person who is pardoned is so constrained. Such is 

inconsistent with the language of the Act. By its terms, the Act 

is potentially available to anyone who “has [been] pardoned 

[or] a court has vacated the conviction . . . or . . . the conviction was reversed and remanded for a new trial and no subsequent conviction was obtained.”13 To allow claim preclusion to 

bar individuals who have been pardoned, but find that claim 

preclusion has no preclusive effect on the latter categories, 

reads “has [been] pardoned” right out of the Act.

Moreover, read in connection with its purpose, the Act modified the regular operation of claim preclusion. The point of 

the Act, after all, is to allow someone to show their innocence 

after a time when a fact finder has previously established 

their guilt.

We conclude that the district court’s reliance on claim preclusion was erroneous. But we nevertheless find no error in 

the district court’s ultimate dismissal of Marie’s complaint. In 

her complaint, Marie alleges that she was actually innocent of 

the crime for which she was convicted, because she acted in 

self-defense and thus had not formed the requisite intent.

As relevant, § 29-4603 requires that a party seeking to 

recover for a wrongful conviction show both that he or she was 

pardoned, or that a conviction was vacated or was reversed and 

remanded for a new trial and no subsequent conviction was 

obtained, and also that he or she was innocent of the crime or 

crimes.14 We explained in Hess that § 29-4603(2) deals with 

legal innocence, while § 29-4603(3) deals with actual innocence. We further defined actual innocence to mean that the 

“defendant did not commit the crime for which he or she is 

13 § 29-4603(2).

14 § 29-4603(2) and (3).
- 224 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

charged.”15 Thus, we concluded in Hess that the term “innocent” as used in § 29-4603(3) was synonymous with actual 

innocence for purposes of the Act.

We discussed self-defense and actual innocence in Rodriguez 

v. Nielsen.16 In that case, the plaintiff filed a malpractice claim 

against her criminal defense attorney, alleging that counsel 

committed malpractice by not arguing that she was not guilty 

of assault because she acted in self-defense. To prevail on her 

claim of malpractice, the plaintiff was required to prove that 

she was actually innocent. We concluded that she could not do 

so, noting that she

did not allege that she was absent at the time of the incident or that she did not commit the acts which occurred. 

Instead, [the plaintiff] alleged she committed the acts but 

that the acts were in self-defense. In the context of this 

civil malpractice action, these allegations of fact do not 

demonstrate actual innocence.17

Though in Rodriguez we did not explicitly identify it as 

such, our decision suggests that actual innocence is akin to 

factual innocence—in other words, where the State has convicted the wrong person.18 Indeed, this is the prototypical 

example of actual innocence.19 Treating these terms as synonymous, at least for purposes of the Act, is consistent with 

U.S. Supreme Court case law, wherein the Court has observed 

that actual innocence means factual and not legal innocence.20

We additionally observe that we have held that a defendant 

15 Hess v. State, supra note 7, 287 Neb. at 563, 843 N.W.2d at 653.

16 Rodriguez v. Nielsen, 264 Neb. 558, 650 N.W.2d 237 (2002).

17 Id. at 562-63, 650 N.W.2d at 241.

18 See, e.g., Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000).

19 Nadeem v. State, supra note 9. See Sawyer v. Whitley, 505 U.S. 333, 112 

S. Ct. 2514, 120 L. Ed. 2d 269 (1992).

20 See, e.g., Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. 

Ed. 2d 828 (1998); Sawyer v. Whitley, supra note 19.
- 225 -

Nebraska Supreme Court Advance S

302 Nebraska Report

MARIE v. STATE

Cite as 302 Neb. 217

must plead more than a lack of intent to establish actual 

innocence.21

Here, as in Rodriguez, Marie alleges that she acted in selfdefense. This defense does not inform her claim of actual innocence, but is relevant to a claim of legal innocence. Moreover, 

Marie does not allege that someone else shot Oldenburg or 

that she is otherwise factually innocent, but alleges that she 

acted in self-defense and that her actions lacked the requisite 

intent. This is insufficient to allege that she was innocent under 

§ 29-4603(3) of the Act.

Although our reasoning differs from that of the district 

court, the district court did not err in dismissing Marie’s petition, and we accordingly affirm.

CONCLUSION

The decision of the district court is affirmed.

Affirmed

Freudenberg, J., not participati

21 Nadeem v. State, supra note 9.