1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-020

Filing Date: April 14, 2010

Docket No. 31,325

JERRY ALVIN KERSEY,

Petitioner,

v.

TIMOTHY HATCH, Warden,

Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Freddie Joseph Romero, District Judge

Hugh W. Dangler, Chief Public Defender

John L. Walker, Assistant Public Defender

Santa Fe, NM 

for Petitioner

Gary K. King, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Respondent

OPINION

MAES, Justice.

{1} The dispositive issue in this appeal is whether 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,” applies

retroactively to habeas corpus proceedings. Pursuant to the principles announced by the

United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989), we conclude that

Frazier announced a new rule of law, which is procedural in nature and, therefore, not
1 Petitioner admitted that he had impersonated a police detective, removed Victim

from Roswell High School, and transported Victim to Cedar Lake Lounge. However,

Petitioner denied stabbing or strangling Victim, stating that

Clark stabbed [Victim] several times with [an] ice pick and then asked

[Petitioner] to hand him a piece of electrical cord. [Petitioner] said he

thought Clark was going to use it to tie up [Victim] and not to strangle him.

[Petitioner] watched Clark tie the cord around [Victim’s] neck and then

walked out of the building.

Kersey, 120 N.M. at 520, 903 P.2d at 831.

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subject to retroactive application. Accordingly, we affirm the trial court’s dismissal of the

writ of habeas corpus filed by Jerry Alvin Kersey (Petitioner).

I. BACKGROUND

{2} The facts of this case are fully articulated in State v. Kersey, 120 N.M. 517, 518-20,

903 P.2d 828, 829-31 (1995) and, therefore, will be summarized only briefly in this opinion.

On September 26, 1991, Petitioner went to Roswell High School where he impersonated a

police detective and asked to speak to a student, Steven Farley (Victim), regarding a fight

that had occurred the previous night. Id. at 519, 903 P.2d at 830. After informing school

officials that he wanted to question Victim at the police station, Petitioner escorted Victim

outside, frisked him, handcuffed him, and put him in the back seat of a station wagon. Id.

{3} Petitioner and his half-brother, Michael Clark, transported Victim to the Cedar Lake

Lounge where they killed Victim by strangling him with an electrical cord and stabbing him

eleven times with an ice pick. Id. Thereafter, Petitioner called Victim’s mother and

demanded a ransom of $50,000 for the return of her son. Petitioner subsequently turned

himself in to local police and confessed his involvement in Victim’s murder.1

 Id. at 519-20,

903 P.2d at 830-31.

{4} Petitioner was charged with first-degree murder contrary to NMSA 1978, Section 30-

2-1(A)(1) or (2) (1980, prior to 1994 amendment), kidnapping contrary to NMSA 1978,

Section 30-4-1 (1973, prior to 1995 amendment), conspiracy to commit first-degree murder

and/or kidnapping contrary to NMSA 1978, Section 30-28-2(A) (1979), and tampering with

evidence contrary to NMSA 1978, Section 30-22-5 (1963, prior to 2003 amendment).

Following a jury trial, Petitioner was found guilty of the offenses charged. Kersey, 120 N.M.

at 518, 903 P.2d at 829. The jury returned “a general verdict of first degree murder under

the alternate theories of willful and premeditated murder and felony murder.” Id. at 521 n.1,

903 P.2d at 832 n.1; see also § 30-2-1(A)(1), (2) (distinguishing between “any kind of

willful, deliberate and premeditated killing” and a killing “in the commission of or attempt
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to commit any felony”). The trial court sentenced Petitioner to life imprisonment plus

eighteen years. Kersey, 120 N.M. at 518, 903 P.2d at 829.

{5} Petitioner appealed directly to this Court, claiming, in relevant part, that his

conviction and sentence for the crime of kidnapping violated the double jeopardy clause of

the New Mexico and United States Constitutions because it was used “to elevate seconddegree murder to first-degree [felony] murder.” Id. at 522, 903 P.2d at 833. This Court

noted that the “Double Jeopardy Clause does not prohibit multiple punishment for ‘discrete

acts violative of the same statute,’” and that acts are discrete when they are “‘separated by

sufficient indicia of distinctness,’” meaning that they are “‘sufficiently separated by either

time or space (in the sense of physical distance between the places where the acts

occurred).’” Id. (quoting Swafford v. State, 112 N.M. 3, 13-14, 810 P.2d 1223, 1233-34

(1991)). Thus, a criminal defendant may be convicted of, and punished for, both felony

murder and the underlying predicate felony when the conduct that forms the basis for each

offense is “‘separate and distinct.’” Id. at 523, 903 P.2d at 834 (quoting Swafford, 112 N.M.

at 14, 810 P.2d at 1234).

{6} Applying this standard to the facts underlying Petitioner’s convictions, this Court

observed that

[Petitioner] kidnapped [Victim] at the high school in Roswell about 10:30

a.m. Although kidnapping is a continuing offense, the conduct required to

establish kidnapping was completed at the time [Petitioner], with the intent

to hold [Victim] for service, unlawfully and forcibly took him from the

school. This conduct alone did not violate the felony murder statute. The

felony-murder statute was violated more than two hours later, nearly sixty

miles distant from the abduction, when [Victim] was strangled and stabbed

to death. The kidnapping was sufficiently separated in time and space from

the murder to establish two distinct crimes.

Id. Accordingly, this Court held that Petitioner’s “sentences for both kidnapping and felony

murder do not violate the double jeopardy clauses of either the New Mexico or the United

States Constitutions.” Id.

{7} Thereafter, Petitioner filed a writ of habeas corpus in the United States District Court

for the District of New Mexico, claiming, in relevant part, that “the sentencing court’s

imposition of consecutive sentences for his kidnapping and murder convictions violated his

constitutional right against double jeopardy.” Kersey v. Lytle, No. 99-2007, 2000 WL

331873, at *2 (10th Cir. March 30, 2000). The district court dismissed the writ of habeas

corpus and Petitioner appealed to the Tenth Circuit Court of Appeals. Id. at *1. The Tenth

Circuit Court of Appeals “affirm[ed] the district court’s denial of relief on double jeopardy

grounds,” because the “imposition of consecutive sentences for [Petitioner’s] kidnapping and

felony murder convictions is not contrary to, or an unreasonable application of, Supreme

Court precedent.” Id. at *6; see 28 U.S.C. § 2254(d)(1) (Supp. II 1996) (“An application for
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a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim . . . resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”).

{8} In May 2007, this Court issued its opinion in Frazier, which inquired for the first

time whether “our felony murder statute expresses a clear legislative intent that a killing

during the commission of a felony constitutes unitary conduct in every case, thereby

precluding a unitary conduct inquiry by this Court into the specific facts of the case.” 2007-

NMSC-032, ¶ 17. After examining the language of our felony murder statute and jury

instruction, we concluded that “the conduct supporting the felony murder and the underlying

predicate felony [was] unitary by definition” because the statute “expressly requires that the

killing happen ‘in the commission of’ the underlying felony.” Id. ¶ 23; see § 30-2-1(A)(2)

(“Murder in the first degree is the killing of one human being by another without lawful

justification or excuse . . . in the commission of or attempt to commit any felony.” (emphasis

added)); Rule 14-202 NMRA (requiring the jury to find that the defendant caused the death

of the victim during “the commission of” or “attempt to commit” the underlying felony).

“Thus, when a jury finds a defendant guilty of felony murder, it has already determined the

fact-based unitary conduct question—it has found that the killing happened during the

commission of the underlying felony.” Frazier, 2007-NMSC-032, ¶ 23.

{9} In Frazier, we recognized “that our holding represents a departure from certain cases

included within our felony murder jurisprudence in which we have examined whether

conduct is factually unitary, in some cases finding that it is not and allowing both

convictions to stand.” Id. ¶ 31. For example, in Kersey and State v. Foster, 1999-NMSC007, ¶¶ 29-35, 126 N.M. 646, 974 P.2d 140, we examined the language of the kidnapping

statute (the underlying predicate felony) to find that the conduct supporting the defendants’

kidnapping and felony murder convictions was separate and distinct and, therefore, did not

violate the prohibition against double jeopardy. Frazier, 2007-NMSC-032, ¶ 34. We stated

that

Foster and Kersey were correct in their analyses of the predicate felony

statutes with respect to legislative intent on the issue of unitary conduct.

However, those cases did not ask the question we ask here, which shifts the

focus from the predicate felony statutes to the felony murder statute itself.

That statute requires the killing to happen in the commission of a felony and

the accompanying jury instructions require the jury to find that the killing

happened during the commission of the predicate felony. . . . We do not

believe the jury could so find and the language of the statute does not

indicate that the legislature intended otherwise.

Id. ¶ 35. Accordingly, Frazier “clarif[ied] our precedent according to the legislative intent

expressed in the felony murder statute.” Id.
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{10} Thereafter, Petitioner filed a petition for writ of habeas corpus in the trial court,

claiming that Frazier effectively overruled this Court’s opinion in Kersey and, therefore, his

kidnapping conviction must be vacated. The State moved to dismiss the petition, arguing

that “[t]he Supreme Court specifically distinguishes [Petitioner’s] case from Frazier in its

opinion and so it does not apply.” The trial court agreed with the State, noting that “the

Supreme Court in Frazier was well aware of its previous opinion in Kersey and in fact

discussed and distinguished it,” rather than revisiting or overruling it. Thus, the trial court

determined that Frazier “[did] not announce a new rule for double jeopardy analysis” but,

rather, simply “clarified the law in New Mexico regarding multiple punishments for first

degree felony murder and the predicate felony.” (quoting State v. Gonzales, 2007-NMSC059, ¶ 11, 143 N.M. 25, 172 P.3d 162). Because there was “no clear indication in Frazier

that the Supreme Court intended to disturb the conclusions and mandates issued in Foster

and Kersey,” the trial court granted the State’s motion to dismiss Petitioner’s writ of habeas

corpus.

{11} Petitioner filed a petition for writ of certiorari in this Court pursuant to Rules 5-

802(H)(2) and 12-501 NMRA. We granted the petition to determine “[w]hether Petitioner

is entitled to the vacating of his kidnapping conviction as the ‘predicate felony’ for a felony

murder conviction, pursuant to this Court’s decisions in State v. Frazier, 2007-NMSC-032,

and State v. Gonzales, 2007-NMSC-059.” Kersey v. Hatch, 2008-NMCERT-012, 145 N.M.

572, 203 P.3d 103.

II. DISCUSSION

{12} In this case, the jury returned a general verdict of first-degree murder under two

alternative theories, willful and premeditated murder in violation of Section 30-2-1(A)(1)

and felony murder in violation of Section 30-2-1(A)(2). The double jeopardy clause requires

“a conviction under a general verdict to be reversed if one of the alternative bases for

conviction provided in the jury instructions is ‘legally inadequate’ because it violates a

defendant’s constitutional right to be free from double jeopardy.” Foster, 1999-NMSC-007,

¶ 27; see Gonzales, 2007-NMSC-059, ¶ 8. This is because “[j]urors are not generally

equipped to determine whether a particular theory of conviction submitted to them is

contrary to law.” Foster, 1999-NMSC-007, ¶ 28 (internal quotation marks and citation

omitted).

Thus, we cannot assume that jurors will know to avoid an alternative basis

for reaching a guilty verdict that would result in a violation of the Double

Jeopardy Clause. On the contrary, we must presume that a conviction under

a general verdict requires reversal if the jury is instructed on an alternative

basis for the conviction that would result in double jeopardy, and the record

does not disclose whether the jury relied on this legally inadequate

alternative.
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Id. (citation omitted). “If double jeopardy is violated, we must vacate the conviction for the

lesser offense.” Gonzales, 2007-NMSC-059, ¶ 10.

{13} Our responsibility on appeal is to determine whether the rule announced in Frazier

applies to this case, thereby rendering Petitioner’s multiple separate convictions for felony

murder and the predicate felony of kidnapping contrary to the double jeopardy clause. If a

double jeopardy violation exists, then the appropriate remedy is to vacate Petitioner’s

kidnapping conviction.

{14} “It is within the inherent power of this Court to give its decision prospective or

retroactive application without offending constitutional principles.” Santillanes v. State, 115

N.M. 215, 223, 849 P.2d 358, 366 (1993); see also Danforth v. Minnesota, 552 U.S. 264,

280-81 (2008) (holding that the nonretroactivity doctrine adopted by the United States

Supreme Court in Teague was not intended “to limit a state court’s authority to grant relief

for violations of new rules of constitutional law when reviewing its own State’s

convictions”); 1 Wayne R. LaFave et al., Criminal Procedure § 2.11(a), at 867 (3d ed. 2007)

(“[T]he state courts remain free to adopt their own positions on the retroactive application

of new rulings under state law.”). “Retroactivity is a legal question, which we review de

novo.” Stein v. Alpine Sports, Inc., 1998-NMSC-040, ¶ 6, 126 N.M. 258, 968 P.2d 769.

A. Threshold Issues to Retroactivity Analysis

{15} The question of whether a new rule applies retroactively arises only if a judicial

opinion in fact announces a new rule after a defendant’s criminal conviction has been

finalized. See State v. Mascarenas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (“An

appellate court’s consideration of whether a rule should be retroactively or prospectively

applied is invoked only when the rule at issue is in fact a ‘new rule.’”); Santillanes, 115

N.M. at 223, 849 P.2d at 366 (“The issue of retroactive effect arises only when a court’s

decision overturns prior case law or makes new law when law enforcement officials have

relied on the prior state of the law.”); State v. Rogers, 93 N.M. 519, 521, 602 P.2d 616, 618

(1979) (“The question of whether or not a rule of law is to be applied retrospectively arises

only for causes that have been finalized.”). Accordingly, as a threshold matter, we must

determine whether (1) Frazier announced a new rule and (2) our opinion in Frazier was

released after Petitioner’s criminal convictions became final.

1. Whether Frazier Announced a New Rule

{16} A case generally announces a new rule “‘when it breaks new ground or imposes a

new obligation on the States or the Federal Government. To put it differently, a case

announces a new rule if the result was not dictated by precedent existing at the time the

defendant’s conviction became final.’” Mascarenas, 2000-NMSC-017, ¶ 24 (quoting

Teague, 489 U.S. at 301); see also State v. Frawley, 2007-NMSC-057, ¶ 35, 143 N.M. 7, 172

P.3d 144 (same); State v. Forbes, 2005-NMSC-027, ¶ 7, 138 N.M. 264, 119 P.3d 144

(same). Thus, “a court establishes a new rule when its decision is ‘flatly inconsistent with
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the prior governing precedent’ and is an ‘explicit overruling of an earlier holding.’”

Frawley, 2007-NMSC-057, ¶ 35 (quoting Whorton v. Bockting, 549 U.S. 406, 416 (2007)).

{17} We conclude that Frazier announced a new rule because it was flatly inconsistent

with our precedent governing multiple convictions for felony murder and the predicate

felony. In Frazier, this Court held “for the first time” that felony murder “and the predicate

felony are actually greater and lesser included offenses in every case, one subsumed within

the other,” thereby precluding multiple separate convictions for both offenses under the

double jeopardy clause. Frazier, 2007-NMSC-032, ¶ 1. Frazier represents a significant

departure from our prior jurisprudence, which upheld multiple separate convictions for

felony murder and the predicate felony, so long as the defendant’s conduct underlying each

conviction was separate and distinct. See, e.g., Foster, 1999-NMSC-007, ¶ 35 (upholding

multiple convictions for felony murder and the predicate felony, aggravated kidnapping,

because the defendant’s conduct was non-unitary); State v. Mora, 1997-NMSC-060, ¶ 69,

124 N.M. 346, 950 P.2d 789 (upholding multiple convictions for felony murder and the

predicate felony, criminal sexual contact, because the defendant’s conduct was non-unitary);

Kersey, 120 N.M. at 523, 903 P.2d at 834 (upholding multiple convictions for felony murder

and the predicate felony, kidnapping, because the defendant’s conduct was non-unitary);

State v. Ortega, 112 N.M. 554, 571, 817 P.2d 1196, 1213 (1991) (same). Because Frazier

replaced our fact-based unitary conduct inquiry with a bright-line rule of law precluding

multiple convictions for felony murder and the predicate felony, we have little trouble

concluding that Frazier announced a new rule.

{18} Petitioner claims, however, that Frazier did not announce a new rule because it

simply distinguished, rather than overruled, our prior felony murder jurisprudence. We

disagree. “[A] decision need not overrule a prior decision in order to qualify as ‘new.’” 7

Criminal Procedure, supra, § 28.6(d), at 247. Rather, an opinion announces a new rule if it

breaks new ground, imposes new obligations on the government, or was not dictated by

precedent. Mascarenas, 2000-NMSC-017, ¶ 24. Our opinion in Frazier broke new ground

and was not dictated by precedent and, therefore, announced a new rule.

2. Whether Petitioner’s Conviction was Final as of the Date that this Court’s

Opinion in Frazier was Filed

{19} Except in limited circumstances, a change in the law does not apply to cases that

have been finalized before a court’s opinion is filed. State v. Nunez, 2000-NMSC-013, ¶

114, 129 N.M. 63, 2 P.3d 264. However, a change in the law generally applies to cases

pending on direct appeal, as long as the issue was raised and preserved below or the failure

to apply the new rule constitutes fundamental error. Id. Petitioner argues that the new rule

announced in Frazier applies to his case because his direct appeal was pending at the time

that this Court issued its opinion in State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995),

which prefigured our holding in Frazier, but for its cursory analysis of unitary conduct,

Frazier, 2007-NMSC-032, ¶ 25. Petitioner raised this argument for the first time in his reply

brief and, therefore, we decline to address it. See State v. Fairweather, 116 N.M. 456, 463,
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863 P.2d 1077, 1084 (1993) (refusing to address a claim raised for the first time in a reply

brief).

{20} As we previously have observed, “[a] case is finalized when ‘a judgment of

conviction has been rendered, the availability of appeal exhausted, and the time for filing a

petition for certiorari elapsed or a petition for certiorari finally denied.’” Nunez, 2000-

NMSC-013, ¶ 114 (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)). Petitioner’s

judgment of conviction had been rendered, his direct appeal had been exhausted, and the

time for filing a petition for certiorari had expired more than ten years before our opinion in

Frazier was filed. Compare Kersey, 120 N.M. at 523, 903 P.2d at 834 (affirming

Petitioner’s convictions on direct appeal in 1995), with Frazier, 2007-NMSC-032, ¶ 31

(adopting a new rule in felony murder and predicate felony cases in 2007). Accordingly, the

new rule announced in Frazier does not apply to Petitioner’s finalized case, unless it meets

the stringent standard for retroactivity. See infra Part B.

B. Whether the New Rule Announced in Frazier Applies Retroactively

{21} “New Mexico courts have not dealt comprehensively with the issue of retroactivity

in the context of criminal cases as yet.” State v. Ulibarri, 1999-NMCA-142, ¶ 22, 128 N.M.

546, 994 P.2d 1164. In some cases, New Mexico courts have applied the standards set forth

by the United States Supreme Court in Linkletter v. Walker, 381 U.S. 618 (1965) impliedly

overruled by Teague, 489 U.S. at 310, without acknowledging that “‘the United States

Supreme Court had abandoned the Linkletter approach.’” Mascarenas, 2000-NMSC-017,

¶ 23 n.5 (quoting Ulibarri, 1999-NMCA-142, ¶ 22); see, e.g., Nunez, 2000-NMSC-013, ¶¶

113, 116 (applying the Linkletter retroactivity standard); Jackson v. State, 1996-NMSC-054,

¶ 6, 122 N.M. 433, 925 P.2d 1195 (same); Santillanes, 115 N.M. at 224, 849 P.2d at 367

(same). However, in at least one other case, this Court has applied the retroactivity standard

adopted by the United States Supreme Court in Teague, which effectively overruled the

Linkletter standard. Frawley, 2007-NMSC-057, ¶ 37 (applying the Teague retroactivity

standard). We take this opportunity to clarify the appropriate standard by which to

determine whether a new rule applies retroactively to finalized criminal convictions.

1. Whether New Mexico Courts Should Apply the Linkletter or the Teague

Standard of Retroactivity

{22} In Linkletter, the United States Supreme Court considered whether its opinion in

Mapp v. Ohio, 367 U.S. 643 (1961), which “held that the exclusion of evidence seized in

violation of the search and seizure provisions of the Fourth Amendment was required of the

States by the Due Process Clause of the Fourteenth Amendment,” applied retroactively to

habeas corpus proceedings. Linkletter, 381 U.S. at 619. The Court held that retroactive

application “must be determined on a case by case basis by looking at three issues: the

purpose of the new rule, the reliance placed upon the old rule, and the effect upon the

administration of justice that retroactive application would have.” Santillanes, 115 N.M. at

224, 849 P.2d at 367 (citing Linkletter, 381 U.S. at 636). In Linkletter, the Court noted that
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the purpose of the exclusionary rule was to deter lawless police action and that “this purpose

would [not] be advanced by making the rule retrospective.” 381 U.S. at 637. Additionally,

the Court determined that the States reasonably had relied upon the prior rule and that

retroactive application of the new rule in Mapp “would tax the administration of justice to

the utmost.” Id. Thus, the Court held that its opinion in Mapp was not subject to retroactive

application. Id.

{23} Twenty-four years later, in Teague, the Court decided that its “approach to

retroactivity for cases on collateral review require[d] modification,” because the “Linkletter

retroactivity standard has not led to consistent results.” 489 U.S. at 301, 302. After

examining the nature of habeas corpus, the Court held that “new rules generally should not

be applied retroactively to cases on collateral review.” Id. at 305-06, 308. The Court

reasoned that

Habeas corpus always has been a collateral remedy, providing an

avenue for upsetting judgments that have become otherwise final. It is not

designed as a substitute for direct review. The interest in leaving concluded

litigation in a state of repose, that is, reducing the controversy to a final

judgment not subject to further revision, may quite legitimately be found by

those responsible for defining the scope of the writ to outweigh in some,

many, or most instances the competing interest in readjudicating convictions

according to all legal standards in effect when a habeas petition is filed.

Id. at 306 (quoting Mackey v. United States, 401 U.S. 667, 682-83 (1971) (Harlan, J.,

concurring in part and dissenting in part)). Given the “broad scope of constitutional issues

cognizable on habeas,” the Court concluded “that it is ‘sounder, in adjudicating habeas

petitions, generally to apply the law prevailing at the time a conviction became final than it

is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional

interpretation.’” Id. (quoting Mackey, 401 U.S. at 689 (Harlan, J., concurring in part and

dissenting in part)).

{24} The Court recognized only two exceptions to the general rule of nonretroactivity for

cases on collateral review. The first exception permits the retroactive application of a new

rule “if [the rule] places certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe,” id. at 311 (internal quotations

marks and citation omitted), or “addresses a substantive categorical guarante[e] accorded by

the Constitution, such as a rule prohibiting a certain category of punishment for a class of

defendants because of their status or offense,” Graham v. Collins, 506 U.S. 461, 477 (1993)

(internal quotation marks and citation omitted). Such substantive rules apply retroactively

because “they necessarily carry a significant risk that a defendant stands convicted of an act

that the law does not make criminal or faces a punishment that the law cannot impose upon

him.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal quotation marks and citation

omitted). The second exception permits the retroactive application of a new rule if the rule

announces a “watershed rule[] of criminal procedure implicating the fundamental fairness
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and accuracy of the criminal proceeding.” Graham, 506 U.S. at 478 (internal quotation

marks and citation omitted). “That a new procedural rule is ‘fundamental’ in some abstract

sense is not enough; the rule must be one without which the likelihood of an accurate

conviction is seriously diminished.” Schriro, 542 U.S. at 352 (internal quotation marks and

citation omitted).

{25} We agree with the United States Supreme Court that the Linkletter standard fails to

yield consistent results, and that the Teague standard, which focuses on the function and

purpose of the writ of habeas corpus, is the proper standard by which to determine whether

new rules should apply retroactively to habeas corpus proceedings. Accordingly, pursuant

to Teague and its progeny, we conclude that new 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,” Frawley, 2007-NMSC-057, ¶ 39

(quoting Schriro, 542 U.S. at 353), or (2) although procedural in nature, the rule announces

a watershed rule of criminal procedure, id. ¶ 42 (“The watershed exception is extremely

narrow; since Teague, the Supreme Court has rejected every claim that a new rule satisfied

the requirements for watershed status.” (internal quotation marks and citation omitted)).

{26} Petitioner urges this Court to adopt a more liberal standard of retroactivity under the

due process clause of the New Mexico Constitution, arguing that “this is a state habeas

proceeding, rather than federal, and the overriding concern of state courts is error correction

rather than the more vague concepts of ‘federalism.’” We disagree. The purpose of the writ

of habeas corpus in the state and federal system essentially is the same, namely, “to protect

a person from being erroneously deprived of his or her rights.” Campos v. Bravo,

2007-NMSC-021, ¶ 5, 141 N.M. 801, 161 P.3d 846; see also Harris v. Nelson, 394 U.S. 286,

290-91 (1969) (“The writ of habeas corpus is the fundamental instrument for safeguarding

individual freedom against arbitrary and lawless state action.”). However, this purpose must

be balanced against the government’s “‘interest in the finality of a conviction once it has

accorded an accused all of the constitutional rights required by law.’” Montoya v. Ulibarri,

2007-NMSC-035, ¶ 29, 142 N.M. 89, 163 P.3d 476 (quoting People v. Cole, 765 N.Y.S.2d

477, 486 (N.Y. App. Div. 2003)). We conclude that the Teague standard appropriately

balances both the purpose of the writ 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.” Teague, 489 U.S. at 306 (internal quotation marks and citation

omitted). Accordingly, we reject Petitioner’s claim.

2. Whether the Rule Announced in Frazier Applies Retroactively Under the

Teague Standard

{27} We next address whether the new rule announced in Frazier applies retroactively to

Petitioner’s case under the Teague standard. Petitioner concedes that Frazier did not

announce a watershed rule of criminal procedure, but argues that it implemented a

substantive change in the law, which applies retroactively to his case, because it altered the
11

range of conduct for which he may be punished. The State responds that Frazier announced

a procedural rule, which applies prospectively only, because it did not place felony murder

and kidnapping beyond the State’s power to punish, but simply changed the number of

convictions and the range of possible sentences.

{28} In United States v. Salerno, 964 F.2d 172, 176 (2d Cir. 1992), the Second Circuit

Court of Appeals considered whether the United States Supreme Court’s opinion in Grady

v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688, 704

(1993), applied retroactively to habeas corpus proceedings. Grady held that “the Double

Jeopardy Clause bars any subsequent prosecution in which the government, to establish an

essential element of an offense charged in that prosecution, will prove conduct that

constitutes an offense for which the defendant has already been prosecuted.” 495 U.S. at

521. The Second Circuit court concluded that Grady established a new rule, which can be

applied retroactively only if it satisfies one of the two Teague exceptions: (1) it “place[s]

an entire category of primary conduct beyond the reach of the criminal law, or . . . prohibit[s

the] imposition of a certain type of punishment for a class of defendants because of their

status or offense,” or (2) it establishes a “‘watershed rule[] of criminal procedure’ that [is]

necessary to the fundamental fairness of the criminal proceeding.” Salerno, 964 F.2d at 177-

78 (internal quotation marks and citation omitted). The Second Circuit court held that Grady

did not satisfy the first Teague exception because

[t]he rule established in Grady does not immunize primary conduct from

overall, or any specific, criminal punishment. Manifestly, the offenses for

which [defendants] were convicted remain illegal after Grady. Grady would

establish, at most, that their admittedly criminal conduct cannot be

prosecuted in separate trials. This, we believe, is a procedural matter

properly tested under the second, rather than first, exception to the

prohibition against retroactive application of new rules.

Salerno, 964 F.2d at 178. The Second Circuit court further held that Grady did not satisfy

the second Teague exception because it did not establish a watershed rule of criminal

procedure. Salerno, 964 F.2d at 179 (holding that Grady did not satisfy the second Teague

exception because it did not “alter the general understanding of the bedrock procedural

elements essential to the fairness of a proceeding”). Accordingly, the new double jeopardy

rule announced in Grady was not subject to retroactive application. Salerno, 964 F.2d at

179.

{29} Likewise, in Taylor v. State, 717 N.E.2d 90, 95 (Ind. 1999), the Indiana Supreme

Court considered whether its opinion in Richardson v. State, 717 N.E.2d 32 (Ind. 1999),

applied retroactively to post-conviction proceedings. Richardson held that

two or more offenses are the “same offense” in violation of Article I, Section

14 of the Indiana Constitution, if, with respect to either the statutory elements

of the challenged crimes or the actual evidence used to convict, the essential
12

elements of one challenged offense also establish the essential elements of

another challenged offense.

717 N.E.2d at 49. The Indiana Supreme Court in Taylor rejected the defendant’s claim that

Richardson applied retroactively to his case, reasoning that Richardson “formulated a new

methodology for analysis of claims under the Indiana Double Jeopardy Clause. . . . [T]his

formulation constitut[ed] a new constitutional rule of criminal procedure, and thus is not

available for retroactive application in post-conviction proceedings.” 717 N.Ed.2d at 95

(citing Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990) (electing “to follow the approach

of Teague and [its progeny] in addressing the retroactivity of new law to cases on review

pursuant to petitions for post-conviction relief under Indiana procedure” (footnote

omitted))).

{30} Similar to Salerno and Taylor, we conclude 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. Frazier did not alter the

range of conduct or the class of persons that the law punishes. The crimes of felony murder

and kidnapping were illegal before the release of our opinion in Frazier, and they remain

illegal today. See § 30-2-1(A)(1)(2); § 30-4-1. Additionally, the requirements for conviction

are the same both before and after Frazier, in that the State isrequired 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. See Frawley, 2007-NMSC-057, ¶ 41 (holding that

the adoption of a new rule was procedural, rather than substantive, because the rule only

affected the defendant’s sentence and the requirements for conviction remained the same).

Accordingly, we conclude 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. We therefore

affirm the trial court’s dismissal of Petitioner’s writ of habeas corpus.

III. CONCLUSION

{31} We conclude that our opinion in Frazier, which held for the first time that multiple

separate convictions of felony murder and the predicate felony violate the double jeopardy

clause, announced a new rule that is not subject to retroactive application unless it falls

within one of the two exceptions established by the United States Supreme Court in Teague:

(1) it is a substantive rule that alters the range of conduct or the class of persons that the law

punishes, or (2) it is a watershed rule of criminal procedure. The new rule announced in

Frazier does not satisfy either of these two exceptions and, therefore, does not apply

retroactively to Petitioner’s writ of habeas corpus. Accordingly, we affirm the trial court’s

dismissal of Petitioner’s writ of habeas corpus.

{32} IT IS SO ORDERED.

____________________________________
13

PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________

CHARLES W. DANIELS, Chief Justice

____________________________________

PATRICIO M. SERNA, Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

Topic Index for Kersey v. Hatch, No. 31,325

CL CRIMINAL LAW

CL-FM Felony Murder

CA CRIMINAL PROCEDURE

CA-DJ Double Jeopardy

CA-PI Prospective Application

CA-WH Writ of Habeas Corpus