Nadeem v. State, 904 N.W.2d 244

In 2010 Mohammed Nadeem was convicted of attempted first- and third-degree sexual assault of a 14-year-old based on a 2009 library encounter and a later controlled call/meeting; he served part of his sentence.
The Nebraska Court of Appeals vacated Nadeem’s convictions and remanded for a new trial (ineffective assistance and entrapment jury instruction); the convictions were vacated while he had completed his sentence.
In 2015 Nadeem sued under the Nebraska Claims for Wrongful Conviction and Imprisonment Act, alleging actual innocence (including that he was entrapped).
The State moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6); the district court granted the motion for failure to state a claim.
The Nebraska Court of Appeals reversed, holding Nadeem’s complaint sufficiently alleged lack of intent and lack of a substantial step to support actual innocence; the State sought further review.
The Nebraska Supreme Court held Nadeem failed to plead actual innocence (conclusory allegations and incorporated appellate-law conclusions are insufficient) and reversed the Court of Appeals, directing affirmance of the district court dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of Appeals could consider its prior criminal-opinion when evaluating a motion to dismiss	Nadeem treated the complaint as the operative document and argued review should be limited to pleadings	State argued the Court of Appeals’ prior opinion was part of the public record and was “necessarily embraced by the complaint,” so it could be considered	Court may consider the prior opinion as embraced by the complaint, but only limited, relevant portions are germane to the sufficiency analysis
Whether the complaint sufficiently pleaded actual innocence under § 29-4603(3)	Nadeem alleged lack of requisite intent and no substantial step toward the completed crime (and asserted entrapment)	State argued entrapment and conclusory allegations cannot satisfy the statutory actual-innocence element; prior opinion’s finding of sufficient evidence further undermined actual-innocence claim	Complaint failed to plead actual innocence. Legal conclusions, quotations from the prior opinion, and conclusory assertions were disregarded; plaintiff must plead absence of facts that are prerequisites for the sentence (actual innocence), which Nadeem did not do

DMK Biodiesel v. McCoy, 285 Neb. 974 (court may consider public-record materials and documents embraced by pleadings on a motion to dismiss)
Hess v. State, 287 Neb. 559 (distinguishing legal innocence from actual innocence; actual innocence requires absence of facts that are prerequisites for the sentence)
State v. Nadeem, 284 Neb. 513 (prior Court of Appeals opinion in the criminal case discussed in the complaint)
Sawyer v. Whitley, 505 U.S. 333 (U.S. Supreme Court discussion of the colloquial meaning of actual innocence)