                                                          I attest to the accuracy and integrity
                                                                               of this document
                                                                       New Mexico Compilation
                                                                      Commission, Santa Fe, NM
                                                                     '00'04- 17:10:39 2015.05.11


           IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-014

Filing Date: April 16, 2015

Docket No. 34,295

RODRIGO DOMINGUEZ,

       Petitioner,

v.

STATE OF NEW MEXICO,

       Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Briana H. Zamora, District Judge

Jorge A. Alvarado, Chief Public Defender
Kimberly M. Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Hector Balderas, Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM

for Respondent

                                       OPINION

CHÁVEZ, Justice.

{1}     In State v. Montoya, 2013-NMSC-020, ¶¶ 2, 22-27, 54, 306 P.3d 426,1 this Court held
that the Double Jeopardy Clause of the United States Constitution, U.S. Const. amend. V,
precludes a defendant from being cumulatively punished for both voluntary manslaughter


       1
        Overruling recognized by State v. Servantez, 2014 WL 4292919, No. 30,414, mem.
op. (N.M. Ct. App. Jul. 30, 2014) (non-precedential).

                                            1
and shooting at or from a motor vehicle resulting in great bodily harm in a situation where
both convictions are based on the same shooting of the same victim. The double jeopardy
analysis in Montoya has been applied in other cases by the Court of Appeals to preclude a
defendant from being punished cumulatively for both aggravated battery and shooting at or
from a motor vehicle resulting in great bodily harm. See State v. Munoz, 2014 WL 4292963,
No. 30,837, mem. op. ¶¶ 2-3, 5 (N.M. Ct. App. June 23, 2014) (non-precedential), cert.
denied, 2014-NMCERT-008; State v. Rudy B., 2014 WL 3039618, No. 27,589, mem. op. ¶¶
2, 4 (N.M. Ct. App. May 8, 2014) (non-precedential), cert. denied, 2014-NMCERT-007.

{2}      These are the exact arguments that Petitioner Rodrigo Dominguez made in 2005 on
certiorari review to this Court of his convictions for voluntary manslaughter and shooting
at or from a motor vehicle resulting in the death of one person, and aggravated battery and
shooting at or from a motor vehicle resulting in great bodily injury to a second person. See
State v. Dominguez (Dominguez I), 2005-NMSC-001, ¶¶ 5, 17, 22, 137 N.M. 1, 106 P.3d
563, overruled by Montoya, 2013-NMSC-020, ¶¶ 2, 54. A majority of this Court ultimately
rejected Dominguez’s double jeopardy arguments, concluding that State v. Gonzales, 1992-
NMSC-003, ¶¶ 4-12, 113 N.M. 221, 824 P.2d 1023, overruled by Montoya,
2013-NMSC-020, ¶¶ 2, 54, controlled. Dominguez I, 2005-NMSC-001, ¶ 8. Dominguez has
now filed a habeas petition pursuant to Rule 5-802 NMRA seeking to retroactively apply
Montoya to support the same double jeopardy claims he earlier raised on certiorari review.
We again decline to accept Dominguez’s double jeopardy claims because Montoya
announced a new procedural rule that cannot be applied retroactively under Kersey v. Hatch,
2010-NMSC-020, ¶ 25, 148 N.M. 381, 237 P.3d 683.

BACKGROUND

{3}     The following facts from this Court’s opinion in Dominguez I are not in dispute and
are relevant only to understand the double jeopardy issues raised by Dominguez.
Dominguez and several of his friends went to a convenience store to fight another group of
individuals. Dominguez I, 2005-NMSC-001, ¶ 4. Dominguez supplied each member of his
group with guns. Id. Both groups arrived in cars, and Dominguez was the driver for his
group. Id. Dominguez’s group opened fire after one of their adversaries exited the other
group’s vehicle carrying a baseball bat. Id. One member of Dominguez’s group fired
multiple times into the opposing group’s car and killed Ricky Solisz, the driver. Id. Another
one of Dominguez’s associates shot at and wounded Vince Martinez, an individual who had
exited the other group’s car. Id.

{4}    In 2002, Dominguez was convicted of one count of voluntary manslaughter, contrary
to NMSA 1978, Section 30-2-3(A) (1994); one count of aggravated battery, contrary to
NMSA 1978, Section 30-3-5 (1969); two counts of shooting at or from a motor vehicle,
contrary to NMSA 1978, Section 30-3-8(B) (1993); and one count of conspiracy to commit
tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (1963, amended 2003)
and NMSA 1978, Section 30-28-2 (1979).


                                             2
{5}     The Court of Appeals unanimously affirmed Dominguez’s convictions. See State v.
Dominguez, No. 23,286, mem. op. ¶¶ 5, 14 (N.M. Ct. App. May 20, 2003) (non-
precedential). Dominguez petitioned for certiorari review, State v. Dominguez, cert. granted,
134 N.M. 320, 76 P.3d 638 (2003), and raised two multiple-punishment double jeopardy
issues under the United States Constitution that are relevant to this appeal. First, he claimed
that his convictions of voluntary manslaughter and shooting at or from a motor vehicle
resulting in Solisz’s death violated the protection against double jeopardy. Dominguez I,
2005-NMSC-001, ¶ 5. Second, he claimed that his convictions of aggravated battery and
shooting at or from a motor vehicle resulting in Martinez’s injuries violated the protection
against double jeopardy. Id. ¶ 17. On appeal, the parties did not dispute that these
convictions were “based on the unitary conduct of [Dominguez] aiding and abetting” the
shooting of Solisz and Martinez by another member of Dominguez’s group. Id. ¶ 6.
Because shooting at or from a vehicle and voluntary manslaughter or aggravated battery
involve unitary acts underlying separate charged offenses, id. ¶¶ 6, 7, the Court focused on
ascertaining whether the Legislature intended multiple punishments, id. ¶¶ 6, 18.

{6}     A divided Supreme Court rejected Dominguez’s claims and affirmed the Court of
Appeals. Id. ¶ 26. Applying the Blockburger test and concluding that Gonzales was
controlling precedent, Dominguez I refused to find a double jeopardy violation if a defendant
was convicted of separately punishable offenses. 2005-NMSC-001, ¶¶ 8, 16, 21. Because
the crimes of shooting at or from a motor vehicle and voluntary manslaughter each involved
elements that were absent in the other crime, Dominguez I held that the offenses were
separate, and therefore there was no double jeopardy violation if a defendant was convicted
of both crimes. Id. ¶ 16. Similarly, Dominguez I held that the crimes of shooting at or from
a motor vehicle and aggravated battery each involved elements that were absent in the other
crime; consequently, convicting Dominguez of both crimes also did not violate double
jeopardy. Id. ¶ 18.

{7}     This Court overruled Dominguez I in Montoya, 2013-NMSC-020, ¶¶ 2, 54. Montoya
acknowledged that Gonzales, 1992-NMSC-003, and the cases that followed it, including
Dominguez I, 2005-NMSC-001, had enabled cumulative punishment for the “theoretically
separate offenses of causing great bodily harm to a person by shooting at [or from] a motor
vehicle and the homicide resulting from the penetration of the same bullet into the same
person.” Montoya, 2013-NMSC-020, ¶ 2. Montoya held that “current New Mexico
jurisprudence precludes cumulative punishment for both crimes.” Id. Montoya did not
answer the question of whether the analysis for finding a double jeopardy violation for
manslaughter and shooting at or from a motor vehicle also applied to convictions for
aggravated battery and shooting at or from a motor vehicle, see id. ¶ 54, although the Court
of Appeals has affirmatively answered the question in two unpublished memorandum
opinions, see generally Munoz, 2014 WL 4292963, No. 30,837; Rudy B., 2014 WL 3039618,
No. 27,589.

{8}     Dominguez filed a petition for writ of habeas corpus pursuant to Rule 5-802, seeking
to retroactively apply Montoya to support the same double jeopardy claims he had raised in

                                              3
Dominguez I. The petition was summarily dismissed by the trial court for raising previously
litigated issues. We then granted Dominguez’s petition for writ of certiorari, which was filed
pursuant to Rule 12-501 NMRA. Dominguez v. State, 2013-NMCERT-010.

DISCUSSION

{9}     When reviewing the “propriety of a lower court’s grant or denial of a writ of habeas
corpus,” the trial court’s findings of fact “concerning the habeas petition are reviewed to
determine if substantial evidence supports the [trial] court’s findings.” Duncan v. Kerby,
1993-NMSC-011, ¶ 7, 115 N.M. 344, 851 P.2d 466. “Questions of law or questions of
mixed fact and law . . . are reviewed de novo.” Id. This “approach provides logical
deference to the trial court fact-finder as first-hand observer, while assuring that higher
courts perform their sanctioned role as arbiter[s] of the law.” Id.

{10} In this case, Dominguez presented facts “only for purposes of analyzing the double
jeopardy issues presented on appeal.” The State does not dispute these facts. Thus, there are
only questions of law to be reviewed de novo. Dominguez argues that (1) this case does not
concern Montoya’s retroactive application because “habeas petitioners relitigating claims
already disposed of on direct appeal should benefit from a new rule adopting their prior
arguments”; (2) our retroactivity jurisprudence “must be revisited” if it precludes retroactive
application of Montoya; and (3) “because [Dominguez I] expressly advocated the position
adopted in Montoya, this Court may retroactively apply [Montoya] to [Dominguez I] only.”

I.     Dominguez Can Relitigate Previously Raised Claims

{11} The trial court dismissed Dominguez’s petition as a matter of law because the
petition presented issues that had been previously litigated. We review de novo the propriety
of this determination. Duncan, 1993-NMSC-011, ¶ 7. In Clark v. Tansy, 1994-NMSC-098,
¶ 14, 118 N.M. 486, 882 P.2d 527, this Court held that “when a habeas petitioner can show
that there has been an intervening change of law or fact, or that the ends of justice would
otherwise be served, principles of finality do not bar relitigation of an issue adversely
decided on [certiorari review].” Montoya acted as an intervening change in the law because
it announced a new rule. 2013-NMSC-020, ¶¶ 52-54. “[A] court establishes a new rule
when its decision is flatly inconsistent with the prior governing precedent and is an explicit
overruling of an earlier holding.” Kersey, 2010-NMSC-020, ¶ 16 (internal quotation marks
and citations omitted). In this case, Montoya explicitly overruled both Dominguez I and
Gonzales, holding that current New Mexico double jeopardy jurisprudence precludes
cumulative punishment for shooting at or from a vehicle and “the homicide resulting from
the penetration of the same bullet into the same person.” Montoya, 2013-NMSC-020, ¶¶ 2,
54. Montoya reasoned that when both the shooting and the homicide charges stem from the
same action and concern the same victim, the offenses are substantively the same. See id.
¶¶ 52-54. Montoya concluded that current New Mexico jurisprudence prevents overcharging
and vindicates legislative intent. See id. ¶ 46. Montoya thus reflected a movement in New
Mexico’s double jeopardy jurisprudence “toward a substantive sameness analysis.”

                                              4
2013-NMSC-020, ¶¶ 46-54 (summarizing the evolution of double jeopardy case law in New
Mexico). Under this approach, if a defendant’s charges substantively involve the same
crime, there is a double jeopardy violation. See id. ¶ 54. Determining whether different
charges involve the same crime “may require looking beyond facial statutory language to the
actual legal theory in the particular case by considering such resources as the evidence, the
charging documents, and the jury instructions.” Id. ¶ 49 (citing State v. Swick, 2012-NMSC-
018, ¶¶ 21, 26, 279 P.3d 747). Because Montoya announced a new rule, Dominguez has the
right to relitigate his double jeopardy claims that are similar to the double jeopardy claims
raised in Montoya.2

{12} The first set of convictions concerns Solisz’s death. These two convictions present
facts that are similar to those in Montoya. Compare Dominguez I, 2005-NMSC-001, ¶¶ 1,
4, with Montoya, 2013-NMSC-020, ¶¶ 4-7, 11. As in Montoya, Dominguez was charged
under separate statutes for voluntary manslaughter and shooting at or from a motor vehicle.
Compare Dominguez I, 2005-NMSC-001, ¶ 1, with Montoya, 2013-NMSC-020, ¶ 11. As
in Montoya, these charges stemmed from the same act and involved the same victim.
Compare Dominguez I, 2005-NMSC-001, ¶ 6, with Montoya, 2013-NMSC-020, ¶¶ 30, 54.
Under Montoya, Dominguez can relitigate the convictions of voluntary manslaughter and
shooting at or from a motor vehicle.

{13} The second set of convictions concerns the shooting of Martinez. Dominguez was
charged under different statutes for aggravated battery and shooting at or from a motor
vehicle; the charges stemmed from one act and involved the same victim. Dominguez I,
2005-NMSC-001, ¶ 4. Under Montoya, the aggravated battery and the shooting are also
substantively the same crime. See Munoz, 2014 WL 4292963, No. 30,837, mem. op. ¶ 4
(concluding that “Montoya’s reasoning also invalidates Dominguez’s holding that unitary
conduct resulting in convictions for both aggravated battery and shooting at or from a motor
vehicle does not violate double jeopardy”); Rudy B., 2014 WL 3039618, No. 27,589, mem.
op. ¶ 2 (same). Consequently, pursuant to Montoya, Dominguez can also relitigate the
convictions of aggravated battery and shooting at or from a motor vehicle.

{14} Dominguez urges us to go further and to hold that Clark requires that Montoya
automatically be applied to his claims because he previously made the very arguments made
by Montoya. However, Dominguez recognizes that this argument is problematic in light of
Kersey, which requires courts to conduct an independent analysis as to whether a new rule
should apply retroactively. 2010-NMSC-020, ¶ 15. Dominguez nonetheless claims that his
interpretation of Clark can be reconciled with Kersey because Kersey did not consider Clark,
and therefore it cannot be deemed to have impliedly overruled Clark. In the alternative, to


       2
         Dominguez also claims that his two convictions for shooting at or from a motor
vehicle violated the protection against double jeopardy. However, because Dominguez cites
to no intervening change of law concerning unit of prosecution claims, he cannot relitigate
these convictions.

                                             5
the extent that Clark is irreconcilable with Kersey, Dominguez argues that Clark and Kersey
approach the retroactivity issue differently and that this Court should adopt the approach
taken in Clark. Dominguez misreads our opinions in Clark and Kersey; we therefore reject
his arguments on this issue.

{15} Clark involved a habeas petition which relied upon case law that was “announced
after [the petitioner’s] conviction and sentence became final.” See 1994-NMSC-098, ¶¶ 1-2.
Clark applied a new rule announced by the United States Supreme Court after the
petitioner’s conviction and sentence became final without addressing the issue of
retroactivity. Id. ¶¶ 15, 19. Dominguez’s inference is understandable but erroneous, because
although Clark received the benefit of the new rule, this Court never addressed retroactivity.
See id. ¶ 15. The most likely explanation for the absence of retroactivity analysis in Clark
is that the State never argued the issue; retroactivity is not mentioned in the State’s reply
brief. See generally Defendant-Appellant’s Reply Brief, 1999 WL 33996276 (No. 23,832),
State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793. Because courts will not
insert arguments on a party’s behalf, the issue of retroactivity was probably not argued, and
therefore it was not discussed in the opinion. See Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (noting that New Mexico courts “will
not review unclear arguments, or guess at what [litigants’] arguments might be”).

{16} Because “[t]he general rule is that cases are not authority for propositions not
considered,” Clark cannot be read to support the idea that litigants may automatically avail
themselves of a new rule, irrespective of any retroactivity doctrine, if they have argued in
favor of that rule on appeal. Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC-035, ¶ 15,
115 N.M. 622, 857 P.2d 22 (internal quotation marks and citations omitted). Unlike Clark,
Kersey focused solely on whether the doctrine of retroactivity permitted the petitioner to
benefit from a new rule. See Kersey, 2010-NMSC-020, ¶¶ 15-31.

{17} Clark and Kersey addressed separate issues. Clark addressed whether a habeas
petitioner can relitigate claims disposed of on appeal, while Kersey addressed whether new
laws, if there are any, retroactively apply in analyzing those relitigated claims. See Kersey,
2010-NMSC-020, ¶¶ 21-31; Clark, 1994-NMSC-098, ¶ 14. Because Kersey and Clark
concern different issues, Kersey did not have to overrule Clark. See Kersey,
2010-NMSC-020, ¶ 25; Clark, 1994-NMSC-098, ¶ 14. Consequently, both Kersey and
Clark can, and should be, followed in this case. We next apply the analysis we announced
in Kersey to determine whether Montoya should be applied retroactively.

II.    Montoya Does Not Apply Retroactively

{18} As we indicated in paragraph 11, supra, Montoya announces a new rule because
Montoya explicitly overruled Dominguez I. See Montoya, 2013-NMSC-020, ¶¶ 2, 54;
Kersey, 2010-NMSC-020, ¶ 16 (noting that “a court establishes a new rule when its decision
is flatly inconsistent with the prior governing precedent and is an explicit overruling of an
earlier holding” (internal quotation marks and citations omitted)). Dominguez argues that

                                              6
Montoya does not announce a new rule because his argument in Dominguez I paralleled the
reasoning in Montoya. This rationale contravenes Kersey’s standard for determining the
existence of a new rule. See 2010-NMSC-020, ¶ 16. We look to precedent to determine
whether a rule is new. See id. Thus, the single question is whether the double jeopardy
analysis in Montoya should be applied retroactively.

{19} Kersey adopted the federal standard of retroactivity in Teague v. Lane, 489 U.S. 288,
301 (1989), holding limited on other grounds, Lockhart v. Fretwell, 506 U.S. 364, 372
(1993), to determine whether a new rule applies retroactively. Kersey, 2010-NMSC-020,
¶¶ 25-26. This Court adopted the Teague standard because it “appropriately balances both
the purpose of the writ [of habeas corpus] and the government’s interest in finality by
applying the law prevailing at the time a conviction became final and refusing, except in
limited circumstances, to dispose of [habeas] cases on the basis of intervening changes in
constitutional interpretation.” Kersey, 2010-NMSC-020, ¶ 26 (second alteration in original)
(internal quotation marks and citation omitted).

{20} Pursuant to Teague, Kersey mandates a two-pronged test to determine retroactivity.
2010-NMSC-020, ¶ 25. “[N]ew rules generally should not be afforded retroactive effect
unless (1) the rule is substantive in nature, in that it alters the range of conduct or the class
of persons that the law punishes, or (2) although procedural in nature, the rule announces a
watershed rule of criminal procedure.” Id. (internal quotation marks and citations omitted).
A substantive change must therefore “place[] an entire category of primary conduct beyond
the reach of the criminal law, or . . . prohibit[] imposition of a certain type of punishment for
a class of defendants because of their status or offense.” Kersey, 2010-NMSC-020, ¶ 28
(ellipsis in original) (internal quotation marks and citation omitted). Watershed rules are
those that are necessary to the fundamental fairness or accuracy of a criminal proceeding.
Id. ¶¶ 28, 30 (citations omitted). Only the rule establishing a universal right to counsel in
criminal proceedings has been upheld as a retroactively applied watershed rule.3 See Gideon
v. Wainwright, 372 U.S. 335, 344-45 (1963); Jennifer H. Berman, Padilla v. Kentucky:
Overcoming Teague’s “Watershed” Exception to Non-Retroactivity, 15 U. Pa. J. Const. L.
667, 685 (2012) (“Indeed, in the years following Teague, the [United States Supreme] Court
has yet to find a new rule that falls under the second Teague exception. Since Teague was
decided in 1989, the Supreme Court has considered fourteen cases where the petitioner
argued that a new rule is ‘watershed’ in nature and in every case the Court has refused to
find the rule as such.” (footnotes omitted) (internal quotation marks and citations omitted)).
The paucity of case law upholding watershed rules reflects the belief that new rules
concerning basic due process are unlikely to emerge. See Teague, 489 U.S. at 311-13
(“[W]e believe it unlikely that many such components of basic due process have yet to
emerge.”).


        3
        The right to counsel applied retroactively because the absence of criminal defense
attorneys produces a high risk of unreliable convictions. See Whorton v. Bockting, 549 U.S.
406, 416, 419 (2007).

                                               7
{21} In Kersey, we concluded that a new procedural rule of law was announced in State
v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1, which held that “the predicate
felony is always subsumed into a felony murder conviction, and no defendant can be
convicted of both.” Kersey, 2010-NMSC-020, ¶ 1 (internal quotation marks and citation
omitted). Kersey concluded that our opinion in Frazier adopted “a new methodology for the
review of double jeopardy claims involving multiple separate convictions for felony murder
and the underlying predicate felony.” Id. ¶ 30. Kersey held that this rule is not a substantive
change in the law, but instead, it is a formulation of a new rule of criminal procedure. Id.
Kersey noted that the new rule did not decriminalize any formerly criminal activities, and
therefore it “did not alter the range of [punishable] conduct or the class of persons” punished.
Id. Moreover, the rule left undisturbed the requirements for conviction such that both before
and after Frazier, “the State [was and] is required to prove the essential elements of felony
murder, as well as the essential elements of the underlying predicate felony, in order to
secure a conviction.” Kersey, 2010-NMSC-020, ¶ 30. Consequently, the Kersey court
concluded that Frazier “formulated a new rule of criminal procedure, which does not
implicate the fundamental fairness or accuracy of the criminal proceeding and, as such, is
not available for retroactive application in habeas corpus proceedings.” Kersey, 2010-
NMSC-020, ¶ 30. Thus, Kersey held that the new rule in Frazier was not subject to
retroactive application under either of the two exceptions established in Teague. Kersey,
2010-NMSC-020, ¶ 31.

{22} Our analysis of Montoya in this opinion should parallel the analysis of Frazier in
Kersey. Aggravated battery, voluntary manslaughter, and shooting at or from a motor
vehicle were crimes prior to Montoya and they remain crimes since Montoya was filed. See
§§ 30-2-3(A), 30-3-5, & 30-3-8(B). Moreover, the requirements for conviction of those
crimes were not altered by this Court’s opinion in Montoya. See generally §§ 30-2-3(A),
30-3-5, & 30-3-8(B); Montoya, 2013-NMSC-020. Under Kersey, 2010-NMSC-020, ¶ 30,
Montoya announces a procedural rule, not a substantive one. Therefore, Kersey precludes
the retroactive application of Montoya under the first Teague exception. See Kersey,
2010-NMSC-020, ¶ 30.

{23} Montoya also does not qualify for the watershed exception under Teague. “In order
to qualify as watershed, a new rule must meet two requirements. First, the rule must be
necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, the
rule must alter our understanding of the bedrock procedural elements essential to the fairness
of a proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007) (internal quotation marks
and citations omitted).

{24} Montoya concerns double jeopardy jurisprudence. See 2013-NMSC-020, ¶ 11.
Double jeopardy analysis is “applied at the conclusion of a case.” Id. ¶ 53 (internal
quotation marks and citation omitted). A new rule concerning double jeopardy cannot
possibly impact the accuracy of criminal convictions. Consequently, Montoya fails Teague’s
second exception, precluding Dominguez from applying Montoya retroactively as a
watershed rule.

                                               8
{25} Using the Kersey analysis, 2010-NMSC-020, ¶ 30, Montoya announces a new rule
that cannot be retroactively applied. This is because Montoya’s new rule, which concerns
a new methodology for reviewing double jeopardy claims, is neither a substantive change
in the law nor a watershed rule. Consequently, Dominguez cannot avail himself of Montoya.

III.   Kersey Cannot Be Overruled Because of Stare Decisis

{26} Dominguez argues that Kersey should be overruled if it precludes the retroactive
application of Montoya to his convictions. He maintains that Kersey’s characterization of
the new double jeopardy analysis as procedural is improper, or in the alternative, that
Kersey’s adoption of Teague was improper. We are not persuaded by either argument.

{27}   New Mexico utilizes a four-factor test to determine whether to overturn precedent:

       1) whether the precedent is so unworkable as to be intolerable; 2) whether
       parties justifiably relied on the precedent so that reversing it would create an
       undue hardship; 3) whether the principles of law have developed to such an
       extent as to leave the old rule no more than a remnant of abandoned doctrine;
       and 4) whether the facts have changed in the interval from the old rule to
       reconsideration so as to have robbed the old rule of justification.

State v. Pieri, 2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132 (internal quotation
marks and citations omitted). These factors must convincingly demonstrate that a precedent
is wrong. Id.

{28} Kersey recognized that the United States Supreme Court adopted the approach taken
in Teague so that retroactivity jurisprudence can generate more consistent results because
the earlier approach to determining retroactivity involved a multi-factor balancing test that
proved unworkable. See Kersey, 2010-NMSC-020, ¶¶ 22-25. In addition, we recently
applied Kersey to another case, proving that it is not an abandoned doctrine. See, e.g.,
Ramirez v. State, 2014-NMSC-023, ¶ 11, 333 P.3d 240. As a result, we see no compelling
reason to overturn Kersey.

IV.    State v. Forbes Does Not Hold That Litigating a Claim on Appeal Automatically
       Entitles the Litigant to Retroactive Application of New Rules

{29} Finally, Dominguez argues that under State v. Forbes, 2005-NMSC-027, 138 N.M.
264, 119 P.3d 144, this Court may retroactively apply Montoya only to the case at bar
because he “expressly advocated the position adopted in Montoya.” Forbes does not stand
for this proposition.

{30} Forbes involved a habeas petitioner who challenged his conviction on Confrontation
Clause grounds. U.S. Const. amend. VI; N.M. Const. art. II, § 14; Forbes, 2005-NMSC-027,
¶¶ 1-2. Prior to his habeas petition, the petitioner initially appealed his conviction to the

                                              9
New Mexico Supreme Court on the same Confrontation Clause grounds and had obtained
a reversal of his convictions. Id. ¶ 1. The United States Supreme Court vacated the reversal
and remanded the case to the New Mexico Supreme Court, instructing this Court to apply
the reliability analysis presented in Lee v. Illinois, 476 U.S. 530 (1986), limited by Idaho v.
Wright, 497 U.S. 805, 817 (1990). On remand, the New Mexico Supreme Court affirmed
the petitioner’s conviction. Forbes, 2005-NMSC-027, ¶ 1. However, Crawford v.
Washington, 541 U.S. 36, 68 (2004) validated the rationale used by this Court in its original
reversal of the petitioner’s conviction. Forbes, 2005-NMSC-027, ¶¶ 1, 6. The New Mexico
Supreme Court granted the petitioner habeas relief and ordered a new trial. Id. ¶ 13.

{31} During the habeas proceedings, the Forbes court had to determine whether the
petitioner should benefit from the holding in Crawford, which was a case that was
announced almost 20 years after the petitioner’s conviction. Forbes, 2005-NMSC-027, ¶
7. This issue “initially turn[ed] on whether Crawford announce[d] a new constitutional
procedural rule” because Forbes noted that the United States Supreme Court did not
expressly state whether Crawford announced a new rule. Forbes, 2005-NMSC-027, ¶ 7.
Forbes concluded that Crawford did not announce a new rule because the result was dictated
by United States Supreme Court precedent existing at the time of the petitioner’s conviction
and the petitioner could rely on Crawford. Forbes, 2005-NMSC-027, ¶¶ 8-10. Thus, under
Forbes, a petitioner may rely upon case law post-dating the petitioner’s conviction if the
case law vindicates previously overruled precedent. See id. ¶ 13.

{32} In summary, when we granted habeas relief in Forbes, we did so on the basis of well-
established existing precedent, not a new rule. See id. ¶¶ 13-14. The viability of the
previous law may have been confirmed by a more recent case, but the precedent had already
been established. See id. ¶ 13. Forbes enables a habeas petitioner to rely upon existing
precedent to relitigate a claim on the basis that a court failed to apply law that was available
at the time of conviction. Id. ¶¶ 7-9. In addition, the decision in Forbes was “limited to the
very special facts of this case,” id. ¶ 13, and it is also limited to situations where the
petitioner is relitigating claims based upon existing precedent.

{33} Dominguez cannot rely upon Forbes because he does not rely upon existing
precedent to support his position. Dominguez relies upon Montoya, a case decided many
years after his conviction was final. Instead of being dictated by previous precedent,
Montoya expressly departs from established law to create a new rule. Compare Montoya,
2013-NMSC-020, ¶ 2 (overruling Gonzales, 1992-NMSC-003, Dominguez, 2005-NMSC-
001, and State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 65), with Forbes, 2005-
NMSC-027, ¶ 13 (“Our decision is . . . highlighted by the fact that the very law this Court
applied to [the petitioner’s] case twenty years ago has now been vindicated, which entitled
him now to the same new trial he should have received back then.”). At the time of
Dominguez’s appeal in Dominguez I, a majority of this Court relied on existing precedent
to affirm his convictions. See generally Dominguez I, 2005-NMSC-001 (citing Gonzales,
1992-NMSC-003). Unlike Crawford or Forbes, Montoya does not reaffirm previously
ambiguous case law. Compare Crawford, 541 U.S. at 57 (citing Douglas v. Alabama, 380

                                              10
U.S. 415, 418-20 (1965), and Forbes, 2005-NMSC-027, ¶ 8 (acknowledging the United
States Supreme Court’s reliance on Douglas, 280 U.S. 415, in Crawford, 541 U.S. 36, was
contrary to New Mexico v. Earnest, 477 U.S. 648 (1986)), with Montoya, 2013-NMSC-020,
¶ 2 (overruling, rather than vindicating, prior double jeopardy jurisprudence). Consequently,
Dominguez must request the retroactive application of Montoya under Kersey to prevail. In
fact, Forbes merely followed the Teague approach in first determining whether Crawford
announced a new rule as a possible prelude to retroactivity analysis. See Forbes,
2005-NMSC-027, ¶¶ 7-8 (citing Teague, 489 U.S. 288). Moreover, Dominguez cannot try
to extend Forbes beyond its narrow holding. Forbes is limited to a situation where the
petitioner had relitigated claims based upon a previous rule that was subsequently vindicated
by the Court’s later holding. See id. ¶ 13.

{34} Dominguez nevertheless contends that Forbes vindicated the rights of the petitioner
on appeal “because this Court had relied on then-existing precedent when it initially reversed
the conviction,” and thus the petitioner preserved his identical argument on appeal.
However, such an extension misses a critical policy distinction between Forbes and the
position Dominguez urges us to adopt. By limiting its holding to case law available at the
time of the petitioner’s conviction, Forbes promotes the finality of convictions by
reaffirming existing precedent. See Kersey, 2010-NMSC-020, ¶ 26 (noting that applying the
prevailing law at the time that a conviction becomes final acknowledges the government’s
interest in the finality of the convictions). This limited holding “is consistent with our
responsibility to do justice to each litigant on the merits of his [or her] own case.” Forbes,
2005-NMSC-027, ¶ 13 (emphasis added) (internal quotation marks and citation omitted).
In contrast, Dominguez’s position undermines the finality of convictions by making it easier
to retroactively apply new laws that were unavailable at the time of the petitioner’s
conviction. Dominguez’s position would allow criminal petitioners to relitigate their
convictions any time a new law is announced, regardless of whether the new law was
available at the time of their convictions. We are not persuaded by Dominguez’s reliance
on Forbes.

CONCLUSION

{35} Dominguez has the right to relitigate his double jeopardy claims in the habeas
petition before us. See Clark, 1994-NMSC-098, ¶¶ 11, 14. However, Kersey precludes the
retroactive application of Montoya during this relitigation, and Dominguez is not entitled to
relief on any of his double jeopardy claims. We therefore affirm the trial court’s dismissal
of Dominguez’s writ of habeas corpus.

{36}   IT IS SO ORDERED.

                                              ____________________________________
                                              EDWARD L. CHÁVEZ, Justice

WE CONCUR:

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____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice




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