Nadeem v. State, 298 Neb. 329

In 2010 Mohammed Nadeem was convicted of attempted first- and third-degree sexual assault of a 14-year-old based on encounters at a library and a later controlled call and meeting arranged by police.
The Nebraska Court of Appeals vacated Nadeem’s convictions and remanded for a new trial on grounds including ineffective assistance and denial of an entrapment instruction; Nadeem had served his sentence before the vacation.
In 2015 Nadeem sued the State under the Nebraska Claims for Wrongful Conviction and Imprisonment Act seeking damages, alleging among other things that he was entrapped and actually innocent.
The State moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6) arguing the complaint failed to plead actual innocence; the district court granted the motion.
The Nebraska Court of Appeals reversed the dismissal, holding the complaint’s allegations were sufficient; the State sought further review by the Nebraska Supreme Court.
The Nebraska Supreme Court held Nadeem failed to plead actual innocence (as distinct from legal innocence) and reversed the Court of Appeals, directing affirmance of the district court’s dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of Appeals could consider its prior criminal-opinion when reviewing the dismissal	Nadeem cited and relied on the Court of Appeals’ prior opinion in his complaint; that opinion is part of the public record embraced by the pleadings	The State argued the prior appellate opinion is necessarily embraced by the complaint and may be considered on a (b)(6) motion	Court: The prior opinion is embraced by the pleadings and may be considered, but only limited portions are relevant
Whether the complaint sufficiently alleged "actual innocence" under § 29-4603(3)	Nadeem alleged he lacked requisite intent and was entrapped, and pleaded he was "entirely innocent" and that facts did not support guilt	The State argued entrapment or lack of intent does not equate to actual innocence; plaintiff must allege absence of the factual elements of the offense	Court: Allegations were conclusory and relied on legal findings; they did not allege absence of the factual prerequisites for the offense (actual innocence), so dismissal proper

Davis v. State, 297 Neb. 955 (explaining de novo review of (b)(6) dismissals)
DMK Biodiesel v. McCoy, 285 Neb. 974 (materials embraced by the pleadings may be considered on a motion to dismiss)
Hess v. State, 287 Neb. 559 (distinguishing legal innocence from actual innocence)
Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40 (courts may ignore unsupported legal conclusions in pleadings)
Sawyer v. Whitley, 505 U.S. 333 (definition and example of actual innocence)
State on behalf of Hopkins v. Batt, 253 Neb. 852 (res judicata principles)