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 Jul. 30, 2014) (non-precedential).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

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
2

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 June 23, 2014) (non-precedential), cert.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 May 8, 2014) (non-precedential), cert.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).
3

{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) (nonprecedential). 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
4

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.”
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

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-NMSC018, ¶¶ 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
6

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
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

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.”).
8

{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.
9

{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
10

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 wellestablished 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-NMSC001, 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
11

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:
12

____________________________________

BARBARA J. VIGIL, Chief Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

CHARLES W. DANIELS, Justice