Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/08/2019 08:06 AM CST




                                                        - 217 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                  MARIE v. STATE
                                                 Cite as 302 Neb. 217




                                        Charlene M arie, appellant, v.
                                         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 appel-
                     late 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 dis-
                     miss 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 ren-
                     dered 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 termi-
                     nate 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: Travis
               P. O’Gorman, Judge. Affirmed.
                 Daniel H. Friedman and Stephen A. Sael, of Friedman Law
               Offices, P.C., L.L.O., for appellant.
                                    - 218 -
                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                               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, Funke, and
Papik, JJ.
      Heavican, C.J.
                      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 convic-
tion. 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 A dvance Sheets
                        302 Nebraska R eports
                                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, sen-
tenced, 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 accord-
ingly 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 plain-
tiff’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 A dvance Sheets
                    302 Nebraska R eports
                          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 back-
ground 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 achiev-
      ing 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 convinc-
      ing evidence:
         (1) That he or she was convicted of one or more felony
      crimes and subsequently sentenced to a term of imprison-
      ment 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 sub-
      division (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 A dvance Sheets
                       302 Nebraska R eports
                               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 enforce-
     ment 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 claim-
ant 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 defend­
ant 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 A dvance Sheets
                        302 Nebraska R eports
                                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 doc-
trine 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 litiga-
tion 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 A dvance Sheets
                        302 Nebraska R eports
                               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 preclu-
sion, 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 convic-
tion was reversed and remanded for a new trial and no subse-
quent 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 mod-
ified 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 pre-
clusion 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 inno-
cence. 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 A dvance Sheets
                        302 Nebraska R eports
                                 MARIE v. STATE
                                Cite as 302 Neb. 217

charged.”15 Thus, we concluded in Hess that the term “inno-
cent” 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 inci-
      dent 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 con-
victed the wrong person.18 Indeed, this is the prototypical
example of actual innocence.19 Treating these terms as syn-
onymous, 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 A dvance Sheets
                        302 Nebraska R eports
                                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 self-
defense. This defense does not inform her claim of actual inno-
cence, 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 peti-
tion, and we accordingly affirm.
                           CONCLUSION
      The decision of the district court is affirmed.
                                                        A ffirmed.
      Freudenberg, J., not participating.

21	
      Nadeem v. State, supra note 9.
