Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/05/2018 01:13 AM CST




                                                         - 329 -
                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                  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 reason-
                     able 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 ques-
                     tions, 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 com-
                     petent 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 sub-
                     orn 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.
                                    - 330 -
               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              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 pre-
      requisites 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 A rterburn, 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, K elch, and
Funke, JJ.
      K elch, 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 dis­
missal.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).
                                    - 331 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                              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 accord-
ing 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 num-
ber 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, inves-
tigators 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.
                                   - 332 -
               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                             NADEEM v. STATE
                             Cite as 298 Neb. 329

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 com-
pensation 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 major-
ity 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.
                                    - 333 -
               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              NADEEM v. STATE
                              Cite as 298 Neb. 329

attempted crime, the question was whether he “intention-
ally engaged in conduct which constituted a substantial step
toward” the completed crime.9 The Court of Appeals con-
cluded 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 pre-
     sented at Nadeem’s criminal trial was sufficient to sus-
     tain 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 suf-
     ficient 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 proceed-
     ings. 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.
                                     - 334 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               NADEEM v. STATE
                               Cite as 298 Neb. 329

                 ASSIGNMENTS OF ERROR
   The State assigns that the Court of Appeals erred (1) in con-
cluding that it was confined to review only the specific alle-
gations 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 A ppeals Erred in
               Not Considering Its Prior Opinion
   The State first argues that the Court of Appeals erred in con-
cluding 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 com-
plaint, 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).
                                     - 335 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               NADEEM v. STATE
                               Cite as 298 Neb. 329

attached to the pleadings.17 These documents are “not consid-
ered 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 com-
plaint, he cites to the Court of Appeals’ 2013 opinion and
refers to numerous statements made by the court in that opin-
ion. Further, no party questions the authenticity of the opin-
ion. 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 A ppeals Erred in R eversing
                   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”).
                                      - 336 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                NADEEM v. STATE
                                Cite as 298 Neb. 329

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 judg-
ment 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 convic-
tion 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 inno-
cence of the crime; and (4) that the plaintiff “did not com-
mit 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).
                                     - 337 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               NADEEM v. STATE
                               Cite as 298 Neb. 329

   [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 con-
clusions 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 evalu-
ating 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).
                                      - 338 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                NADEEM v. STATE
                                Cite as 298 Neb. 329

and overreaction,” “entirely innocent,” “complete absence of
any evidence,” and “could not possibly be ‘ready and will-
ing.’” 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 con-
tact 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 draw-
ing 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.
                     R eversed and remanded with directions.
   Wright, J., not participating.

30	
      Hess v. State, supra note 24.
