Dominguez v. State

Opinion

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:______________ 3 Filing Date: April 16, 2015 4 NO. 34,295 5 RODRIGO DOMINGUEZ, 6 Petitioner, 7 v. 8 STATE OF NEW MEXICO, 9 Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI 11 Briana H. Zamora, District Judge

12 Jorge A. Alvarado, Chief Public Defender 13 Kimberly M. Chavez Cook, Assistant Appellate Defender 14 Santa Fe, NM

15 for Petitioner

16 Hector Balderas, Attorney General 17 Joel Jacobsen, Assistant Attorney General 18 Santa Fe, NM

19 for Respondent 1 OPINION 2 CHÁVEZ, Justice. 3 {1} In State v. Montoya, 2013-NMSC-020, ¶¶ 2, 22-27, 54, 306 P.3d 426,1 this 4 Court held that the Double Jeopardy Clause of the United States Constitution, U.S. 5 Const. amend. V, precludes a defendant from being cumulatively punished for both 6 voluntary manslaughter and shooting at or from a motor vehicle resulting in great 7 bodily harm in a situation where both convictions are based on the same shooting of 8 the same victim. The double jeopardy analysis in Montoya has been applied in other 9 cases by the Court of Appeals to preclude a defendant from being punished 10 cumulatively for both aggravated battery and shooting at or from a motor vehicle 11 resulting in great bodily harm. See State v. Munoz, 2014 WL 4292963, No. 30,837, 12 mem. op. ¶¶ 2-3, 5 (N.M. Ct. App. June 23, 2014) (non-precedential), cert. denied, 13 2014-NMCERT-008; State v. Rudy B., 2014 WL 3039618, No. 27,589, mem. op. ¶¶ 14 2, 4 (N.M. Ct. App. May 8, 2014) (non-precedential), cert. denied, 2014-NMCERT- 15 007. 16 {2} These are the exact arguments that Petitioner Rodrigo Dominguez made in 17 2005 on certiorari review to this Court of his convictions for voluntary manslaughter 18 and shooting at or from a motor vehicle resulting in the death of one person, and

1 19 Overruling recognized by State v. Servantez, 2014 WL 4292919, No. 30,414, 20 mem. op. (N.M. Ct. App. Jul. 30, 2014) (non-precedential).

1 aggravated battery and shooting at or from a motor vehicle resulting in great bodily 2 injury to a second person. See State v. Dominguez (Dominguez I), 2005-NMSC-001, 3 ¶¶ 5, 17, 22, 137 N.M. 1, 106 P.3d 563, overruled by Montoya, 2013-NMSC-020, ¶¶ 4 2, 54. A majority of this Court ultimately rejected Dominguez’s double jeopardy 5 arguments, concluding that State v. Gonzales, 1992-NMSC-003, ¶¶ 4-12, 113 N.M. 6 221, 824 P.2d 1023, overruled by Montoya, 2013-NMSC-020, ¶¶ 2, 54, controlled. 7 Dominguez I, 2005-NMSC-001, ¶ 8. Dominguez has now filed a habeas petition 8 pursuant to Rule 5-802 NMRA seeking to retroactively apply Montoya to support the 9 same double jeopardy claims he earlier raised on certiorari review. We again decline 10 to accept Dominguez’s double jeopardy claims because Montoya announced a new 11 procedural rule that cannot be applied retroactively under Kersey v. Hatch, 12 2010-NMSC-020, ¶ 25, 148 N.M. 381, 237 P.3d 683. 13 BACKGROUND 14 {3} The following facts from this Court’s opinion in Dominguez I are not in dispute 15 and are relevant only to understand the double jeopardy issues raised by Dominguez. 16 Dominguez and several of his friends went to a convenience store to fight another 17 group of individuals. Dominguez I, 2005-NMSC-001, ¶ 4. Dominguez supplied each 18 member of his group with guns. Id. Both groups arrived in cars, and Dominguez was

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1 the driver for his group. Id. Dominguez’s group opened fire after one of their 2 adversaries exited the other group’s vehicle carrying a baseball bat. Id. One member 3 of Dominguez’s group fired multiple times into the opposing group’s car and killed 4 Ricky Solisz, the driver. Id. Another one of Dominguez’s associates shot at and 5 wounded Vince Martinez, an individual who had exited the other group’s car. Id. 6 {4} In 2002, Dominguez was convicted of one count of voluntary manslaughter, 7 contrary to NMSA 1978, Section 30-2-3(A) (1994); one count of aggravated battery, 8 contrary to NMSA 1978, Section 30-3-5 (1969); two counts of shooting at or from 9 a motor vehicle, contrary to NMSA 1978, Section 30-3-8(B) (1993); and one count 10 of conspiracy to commit tampering with evidence, contrary to NMSA 1978, Section 11 30-22-5 (1963, amended 2003) and NMSA 1978, Section 30-28-2 (1979). 12 {5} The Court of Appeals unanimously affirmed Dominguez’s convictions. See 13 State v. Dominguez, No. 23,286, mem. op. ¶¶ 5, 14 (N.M. Ct. App. May 20, 2003) 14 (non-precedential). Dominguez petitioned for certiorari review, State v. Dominguez, 15 cert. granted, 134 N.M. 320, 76 P.3d 638 (2003), and raised two multiple-punishment 16 double jeopardy issues under the United States Constitution that are relevant to this 17 appeal. First, he claimed that his convictions of voluntary manslaughter and shooting 18 at or from a motor vehicle resulting in Solisz’s death violated the protection against

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1 double jeopardy. Dominguez I, 2005-NMSC-001, ¶ 5. Second, he claimed that his 2 convictions of aggravated battery and shooting at or from a motor vehicle resulting 3 in Martinez’s injuries violated the protection against double jeopardy. Id. ¶ 17. On 4 appeal, the parties did not dispute that these convictions were “based on the unitary 5 conduct of [Dominguez] aiding and abetting” the shooting of Solisz and Martinez by 6 another member of Dominguez’s group. Id. ¶ 6. Because shooting at or from a 7 vehicle and voluntary manslaughter or aggravated battery involve unitary acts 8 underlying separate charged offenses, id. ¶¶ 6, 7, the Court focused on ascertaining 9 whether the Legislature intended multiple punishments, id. ¶¶ 6, 18. 10 {6} A divided Supreme Court rejected Dominguez’s claims and affirmed the Court 11 of Appeals. Id. ¶ 26. Applying the Blockburger test and concluding that Gonzales 12 was controlling precedent, Dominguez I refused to find a double jeopardy violation 13 if a defendant was convicted of separately punishable offenses. 2005-NMSC-001, 14 ¶¶ 8, 16, 21. Because the crimes of shooting at or from a motor vehicle and voluntary 15 manslaughter each involved elements that were absent in the other crime, Dominguez 16 I held that the offenses were separate, and therefore there was no double jeopardy 17 violation if a defendant was convicted of both crimes. Id. ¶ 16. Similarly, 18 Dominguez I held that the crimes of shooting at or from a motor vehicle and

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1 aggravated battery each involved elements that were absent in the other crime; 2 consequently, convicting Dominguez of both crimes also did not violate double 3 jeopardy. Id. ¶ 18. 4 {7} This Court overruled Dominguez I in Montoya, 2013-NMSC-020, ¶¶ 2, 54. 5 Montoya acknowledged that Gonzales, 1992-NMSC-003, and the cases that followed 6 it, including Dominguez I, 2005-NMSC-001, had enabled cumulative punishment for 7 the “theoretically separate offenses of causing great bodily harm to a person by 8 shooting at [or from] a motor vehicle and the homicide resulting from the penetration 9 of the same bullet into the same person.” Montoya, 2013-NMSC-020, ¶ 2. Montoya 10 held that “current New Mexico jurisprudence precludes cumulative punishment for 11 both crimes.” Id. Montoya did not answer the question of whether the analysis for 12 finding a double jeopardy violation for manslaughter and shooting at or from a motor 13 vehicle also applied to convictions for aggravated battery and shooting at or from a 14 motor vehicle, see id. ¶ 54, although the Court of Appeals has affirmatively answered 15 the question in two unpublished memorandum opinions, see generally Munoz, 2014 16 WL 4292963, No. 30,837; Rudy B., 2014 WL 3039618, No. 27,589. 17 {8} Dominguez filed a petition for writ of habeas corpus pursuant to Rule 5-802, 18 seeking to retroactively apply Montoya to support the same double jeopardy claims

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1 he had raised in Dominguez I. The petition was summarily dismissed by the trial 2 court for raising previously litigated issues. We then granted Dominguez’s petition 3 for writ of certiorari, which was filed pursuant to Rule 12-501 NMRA. Dominguez 4 v. State, 2013-NMCERT-010. 5 DISCUSSION 6 {9} When reviewing the “propriety of a lower court’s grant or denial of a writ of 7 habeas corpus,” the trial court’s findings of fact “concerning the habeas petition are 8 reviewed to determine if substantial evidence supports the [trial] court’s findings.” 9 Duncan v. Kerby, 1993-NMSC-011, ¶ 7, 115 N.M. 344, 851 P.2d 466. “Questions 10 of law or questions of mixed fact and law . . . are reviewed de novo.” Id. This 11 “approach provides logical deference to the trial court fact-finder as first-hand 12 observer, while assuring that higher courts perform their sanctioned role as arbiter[s] 13 of the law.” Id. 14 {10} In this case, Dominguez presented facts “only for purposes of analyzing the 15 double jeopardy issues presented on appeal.” The State does not dispute these facts. 16 Thus, there are only questions of law to be reviewed de novo. Dominguez argues that 17 (1) this case does not concern Montoya’s retroactive application because “habeas 18 petitioners relitigating claims already disposed of on direct appeal should benefit

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1 from a new rule adopting their prior arguments”; (2) our retroactivity jurisprudence 2 “must be revisited” if it precludes retroactive application of Montoya; and (3) 3 “because [Dominguez I] expressly advocated the position adopted in Montoya, this 4 Court may retroactively apply [Montoya] to [Dominguez I] only.” 5 I. Dominguez Can Relitigate Previously Raised Claims 6 {11} The trial court dismissed Dominguez’s petition as a matter of law because the 7 petition presented issues that had been previously litigated. We review de novo the 8 propriety of this determination. Duncan, 1993-NMSC-011, ¶ 7. In Clark v. Tansy, 9 1994-NMSC-098, ¶ 14, 118 N.M. 486, 882 P.2d 527, this Court held that “when a 10 habeas petitioner can show that there has been an intervening change of law or fact, 11 or that the ends of justice would otherwise be served, principles of finality do not bar 12 relitigation of an issue adversely decided on [certiorari review].” Montoya acted as 13 an intervening change in the law because it announced a new rule. 2013-NMSC-020, 14 ¶¶ 52-54. “[A] court establishes a new rule when its decision is flatly inconsistent 15 with the prior governing precedent and is an explicit overruling of an earlier holding.” 16 Kersey, 2010-NMSC-020, ¶ 16 (internal quotation marks and citations omitted). In 17 this case, Montoya explicitly overruled both Dominguez I and Gonzales, holding that 18 current New Mexico double jeopardy jurisprudence precludes cumulative punishment

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1 for shooting at or from a vehicle and “the homicide resulting from the penetration of 2 the same bullet into the same person.” Montoya, 2013-NMSC-020, ¶¶ 2, 54. 3 Montoya reasoned that when both the shooting and the homicide charges stem from 4 the same action and concern the same victim, the offenses are substantively the same. 5 See id. ¶¶ 52-54. Montoya concluded that current New Mexico jurisprudence 6 prevents overcharging and vindicates legislative intent. See id. ¶ 46. Montoya thus 7 reflected a movement in New Mexico’s double jeopardy jurisprudence “toward a 8 substantive sameness analysis.” 2013-NMSC-020, ¶¶ 46-54 (summarizing the 9 evolution of double jeopardy case law in New Mexico). Under this approach, if a 10 defendant’s charges substantively involve the same crime, there is a double jeopardy 11 violation. See id. ¶ 54. Determining whether different charges involve the same 12 crime “may require looking beyond facial statutory language to the actual legal theory 13 in the particular case by considering such resources as the evidence, the charging 14 documents, and the jury instructions.” Id. ¶ 49 (citing State v. Swick, 2012-NMSC- 15 018, ¶¶ 21, 26, 279 P.3d 747). Because Montoya announced a new rule, Dominguez 16 has the right to relitigate his double jeopardy claims that are similar to the double 17 jeopardy claims raised in Montoya.2

2 18 Dominguez also claims that his two convictions for shooting at or from a 19 motor vehicle violated the protection against double jeopardy. However, because

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1 {12} The first set of convictions concerns Solisz’s death. These two convictions 2 present facts that are similar to those in Montoya. Compare Dominguez I, 2005- 3 NMSC-001, ¶¶ 1, 4, with Montoya, 2013-NMSC-020, ¶¶ 4-7, 11. As in Montoya, 4 Dominguez was charged under separate statutes for voluntary manslaughter and 5 shooting at or from a motor vehicle. Compare Dominguez I, 2005-NMSC-001, ¶ 1, 6 with Montoya, 2013-NMSC-020, ¶ 11. As in Montoya, these charges stemmed from 7 the same act and involved the same victim. Compare Dominguez I, 2005-NMSC- 8 001, ¶ 6, with Montoya, 2013-NMSC-020, ¶¶ 30, 54. Under Montoya, Dominguez 9 can relitigate the convictions of voluntary manslaughter and shooting at or from a 10 motor vehicle. 11 {13} The second set of convictions concerns the shooting of Martinez. Dominguez 12 was charged under different statutes for aggravated battery and shooting at or from 13 a motor vehicle; the charges stemmed from one act and involved the same victim. 14 Dominguez I, 2005-NMSC-001, ¶ 4. Under Montoya, the aggravated battery and the 15 shooting are also substantively the same crime. See Munoz, 2014 WL 4292963, No. 16 30,837, mem. op. ¶ 4 (concluding that “Montoya’s reasoning also invalidates 17 Dominguez’s holding that unitary conduct resulting in convictions for both

18 Dominguez cites to no intervening change of law concerning unit of prosecution 19 claims, he cannot relitigate these convictions.

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1 aggravated battery and shooting at or from a motor vehicle does not violate double 2 jeopardy”); Rudy B., 2014 WL 3039618, No. 27,589, mem. op. ¶ 2 (same). 3 Consequently, pursuant to Montoya, Dominguez can also relitigate the convictions 4 of aggravated battery and shooting at or from a motor vehicle. 5 {14} Dominguez urges us to go further and to hold that Clark requires that Montoya 6 automatically be applied to his claims because he previously made the very arguments 7 made by Montoya. However, Dominguez recognizes that this argument is 8 problematic in light of Kersey, which requires courts to conduct an independent 9 analysis as to whether a new rule should apply retroactively. 2010-NMSC-020, ¶ 15. 10 Dominguez nonetheless claims that his interpretation of Clark can be reconciled with 11 Kersey because Kersey did not consider Clark, and therefore it cannot be deemed to 12 have impliedly overruled Clark. In the alternative, to the extent that Clark is 13 irreconcilable with Kersey, Dominguez argues that Clark and Kersey approach the 14 retroactivity issue differently and that this Court should adopt the approach taken in 15 Clark. Dominguez misreads our opinions in Clark and Kersey; we therefore reject 16 his arguments on this issue. 17 {15} Clark involved a habeas petition which relied upon case law that was 18 “announced after [the petitioner’s] conviction and sentence became final.” See

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1 1994-NMSC-098, ¶¶ 1-2. Clark applied a new rule announced by the United States 2 Supreme Court after the petitioner’s conviction and sentence became final without 3 addressing the issue of retroactivity. Id. ¶¶ 15, 19. Dominguez’s inference is 4 understandable but erroneous, because although Clark received the benefit of the new 5 rule, this Court never addressed retroactivity. See id. ¶ 15. The most likely 6 explanation for the absence of retroactivity analysis in Clark is that the State never 7 argued the issue; retroactivity is not mentioned in the State’s reply brief. See 8 generally Defendant-Appellant’s Reply Brief, 1999 WL 33996276 (No. 23,832), 9 State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793. Because courts will 10 not insert arguments on a party’s behalf, the issue of retroactivity was probably not 11 argued, and therefore it was not discussed in the opinion. See Headley v. Morgan 12 Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (noting that New 13 Mexico courts “will not review unclear arguments, or guess at what [litigants’] 14 arguments might be”). 15 {16} Because “[t]he general rule is that cases are not authority for propositions not 16 considered,” Clark cannot be read to support the idea that litigants may automatically 17 avail themselves of a new rule, irrespective of any retroactivity doctrine, if they have 18 argued in favor of that rule on appeal. Fernandez v. Farmers Ins. Co. of Ariz.,

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1 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857 P.2d 22 (internal quotation marks and 2 citations omitted). Unlike Clark, Kersey focused solely on whether the doctrine of 3 retroactivity permitted the petitioner to benefit from a new rule. See Kersey, 2010- 4 NMSC-020, ¶¶ 15-31. 5 {17} Clark and Kersey addressed separate issues. Clark addressed whether a habeas 6 petitioner can relitigate claims disposed of on appeal, while Kersey addressed whether 7 new laws, if there are any, retroactively apply in analyzing those relitigated claims. 8 See Kersey, 2010-NMSC-020, ¶¶ 21-31; Clark, 1994-NMSC-098, ¶ 14. Because 9 Kersey and Clark concern different issues, Kersey did not have to overrule Clark. See 10 Kersey, 2010-NMSC-020, ¶ 25; Clark, 1994-NMSC-098, ¶ 14. Consequently, both 11 Kersey and Clark can, and should be, followed in this case. We next apply the 12 analysis we announced in Kersey to determine whether Montoya should be applied 13 retroactively. 14 II. Montoya Does Not Apply Retroactively 15 {18} As we indicated in paragraph 11, supra, Montoya announces a new rule 16 because Montoya explicitly overruled Dominguez I. See Montoya, 2013-NMSC-020, 17 ¶¶ 2, 54; Kersey, 2010-NMSC-020, ¶ 16 (noting that “a court establishes a new rule 18 when its decision is flatly inconsistent with the prior governing precedent and is an

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1 explicit overruling of an earlier holding” (internal quotation marks and citations 2 omitted)). Dominguez argues that Montoya does not announce a new rule because 3 his argument in Dominguez I paralleled the reasoning in Montoya. This rationale 4 contravenes Kersey’s standard for determining the existence of a new rule. See 5 2010-NMSC-020, ¶ 16. We look to precedent to determine whether a rule is new. 6 See id. Thus, the single question is whether the double jeopardy analysis in Montoya 7 should be applied retroactively. 8 {19} Kersey adopted the federal standard of retroactivity in Teague v. Lane, 489 9 U.S. 288, 301 (1989), holding limited on other grounds, Lockhart v. Fretwell, 506 10 U.S. 364, 372 (1993), to determine whether a new rule applies retroactively. Kersey, 11 2010-NMSC-020, ¶¶ 25-26. This Court adopted the Teague standard because it 12 “appropriately balances both the purpose of the writ [of habeas corpus] and the 13 government’s interest in finality by applying the law prevailing at the time a 14 conviction became final and refusing, except in limited circumstances, to dispose of 15 [habeas] cases on the basis of intervening changes in constitutional interpretation.” 16 Kersey, 2010-NMSC-020, ¶ 26 (second alteration in original) (internal quotation 17 marks and citation omitted). 18 {20} Pursuant to Teague, Kersey mandates a two-pronged test to determine

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1 retroactivity. 2010-NMSC-020, ¶ 25. “[N]ew rules generally should not be afforded 2 retroactive effect unless (1) the rule is substantive in nature, in that it alters the range 3 of conduct or the class of persons that the law punishes, or (2) although procedural 4 in nature, the rule announces a watershed rule of criminal procedure.” Id. (internal 5 quotation marks and citations omitted). A substantive change must therefore “place[] 6 an entire category of primary conduct beyond the reach of the criminal law, or . . . 7 prohibit[] imposition of a certain type of punishment for a class of defendants because 8 of their status or offense.” Kersey, 2010-NMSC-020, ¶ 28 (ellipsis in original) 9 (internal quotation marks and citation omitted). Watershed rules are those that are 10 necessary to the fundamental fairness or accuracy of a criminal proceeding. Id. ¶¶ 28, 11 30 (citations omitted). Only the rule establishing a universal right to counsel in 12 criminal proceedings has been upheld as a retroactively applied watershed rule.3 See 13 Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963); Jennifer H. Berman, Padilla v. 14 Kentucky: Overcoming Teague’s “Watershed” Exception to Non-Retroactivity, 15 15 U. Pa. J. Const. L. 667, 685 (2012) (“Indeed, in the years following Teague, the 16 [United States Supreme] Court has yet to find a new rule that falls under the second

17 3 The right to counsel applied retroactively because the absence of criminal 18 defense attorneys produces a high risk of unreliable convictions. See Whorton v. 19 Bockting, 549 U.S. 406, 416, 419 (2007).

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1 Teague exception. Since Teague was decided in 1989, the Supreme Court has 2 considered fourteen cases where the petitioner argued that a new rule is ‘watershed’ 3 in nature and in every case the Court has refused to find the rule as such.” (footnotes 4 omitted) (internal quotation marks and citations omitted)). The paucity of case law 5 upholding watershed rules reflects the belief that new rules concerning basic due 6 process are unlikely to emerge. See Teague, 489 U.S. at 311-13 (“[W]e believe it 7 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 9 State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1, which held that 10 “the predicate felony is always subsumed into a felony murder conviction, and no 11 defendant can be convicted of both.” Kersey, 2010-NMSC-020, ¶ 1 (internal 12 quotation marks and citation omitted). Kersey concluded that our opinion in Frazier 13 adopted “a new methodology for the review of double jeopardy claims involving 14 multiple separate convictions for felony murder and the underlying predicate felony.” 15 Id. ¶ 30. Kersey held that this rule is not a substantive change in the law, but instead, 16 it is a formulation of a new rule of criminal procedure. Id. Kersey noted that the new 17 rule did not decriminalize any formerly criminal activities, and therefore it “did not 18 alter the range of [punishable] conduct or the class of persons” punished. Id.

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1 Moreover, the rule left undisturbed the requirements for conviction such that both 2 before and after Frazier, “the State [was and] is required to prove the essential 3 elements of felony murder, as well as the essential elements of the underlying 4 predicate felony, in order to secure a conviction.” Kersey, 2010-NMSC-020, ¶ 30. 5 Consequently, the Kersey court concluded that Frazier “formulated a new rule of 6 criminal procedure, which does not implicate the fundamental fairness or accuracy 7 of the criminal proceeding and, as such, is not available for retroactive application in 8 habeas corpus proceedings.” Kersey, 2010-NMSC-020, ¶ 30. Thus, Kersey held that 9 the new rule in Frazier was not subject to retroactive application under either of the 10 two exceptions established in Teague. Kersey, 2010-NMSC-020, ¶ 31. 11 {22} Our analysis of Montoya in this opinion should parallel the analysis of Frazier 12 in Kersey. Aggravated battery, voluntary manslaughter, and shooting at or from a 13 motor vehicle were crimes prior to Montoya and they remain crimes since Montoya 14 was filed. See §§ 30-2-3(A), 30-3-5, & 30-3-8(B). Moreover, the requirements for 15 conviction of those crimes were not altered by this Court’s opinion in Montoya. See 16 generally §§ 30-2-3(A), 30-3-5, & 30-3-8(B); Montoya, 2013-NMSC-020. Under 17 Kersey, 2010-NMSC-020, ¶ 30, Montoya announces a procedural rule, not a 18 substantive one. Therefore, Kersey precludes the retroactive application of Montoya

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1 under the first Teague exception. See Kersey, 2010-NMSC-020, ¶ 30. 2 {23} Montoya also does not qualify for the watershed exception under Teague. “In 3 order to qualify as watershed, a new rule must meet two requirements. First, the rule 4 must be necessary to prevent an impermissibly large risk of an inaccurate conviction. 5 Second, the rule must alter our understanding of the bedrock procedural elements 6 essential to the fairness of a proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 7 (2007) (internal quotation marks and citations omitted). 8 {24} Montoya concerns double jeopardy jurisprudence. See 2013-NMSC-020, ¶ 11. 9 Double jeopardy analysis is “applied at the conclusion of a case.” Id. ¶ 53 (internal 10 quotation marks and citation omitted). A new rule concerning double jeopardy 11 cannot possibly impact the accuracy of criminal convictions. Consequently, Montoya 12 fails Teague’s second exception, precluding Dominguez from applying Montoya 13 retroactively as a watershed rule. 14 {25} Using the Kersey analysis, 2010-NMSC-020, ¶ 30, Montoya announces a new 15 rule that cannot be retroactively applied. This is because Montoya’s new rule, which 16 concerns a new methodology for reviewing double jeopardy claims, is neither a 17 substantive change in the law nor a watershed rule. Consequently, Dominguez cannot 18 avail himself of Montoya.

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1 III. Kersey Cannot Be Overruled Because of Stare Decisis 2 {26} Dominguez argues that Kersey should be overruled if it precludes the 3 retroactive application of Montoya to his convictions. He maintains that Kersey’s 4 characterization of the new double jeopardy analysis as procedural is improper, or in 5 the alternative, that Kersey’s adoption of Teague was improper. We are not 6 persuaded by either argument. 7 {27} New Mexico utilizes a four-factor test to determine whether to overturn 8 precedent:

9 1) whether the precedent is so unworkable as to be intolerable; 2) 10 whether parties justifiably relied on the precedent so that reversing it 11 would create an undue hardship; 3) whether the principles of law have 12 developed to such an extent as to leave the old rule no more than a 13 remnant of abandoned doctrine; and 4) whether the facts have changed 14 in the interval from the old rule to reconsideration so as to have robbed 15 the old rule of justification.

16 State v. Pieri, 2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132 (internal 17 quotation marks and citations omitted). These factors must convincingly demonstrate 18 that a precedent is wrong. Id. 19 {28} Kersey recognized that the United States Supreme Court adopted the approach 20 taken in Teague so that retroactivity jurisprudence can generate more consistent 21 results because the earlier approach to determining retroactivity involved a multi-

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1 factor balancing test that proved unworkable. See Kersey, 2010-NMSC-020, ¶¶ 22- 2 25. In addition, we recently applied Kersey to another case, proving that it is not an 3 abandoned doctrine. See, e.g., Ramirez v. State, 2014-NMSC-023, ¶ 11, 333 P.3d 4 240. As a result, we see no compelling reason to overturn Kersey.

5 IV. State v. Forbes Does Not Hold That Litigating a Claim on Appeal 6 Automatically Entitles the Litigant to Retroactive Application of New 7 Rules

8 {29} Finally, Dominguez argues that under State v. Forbes, 2005-NMSC-027, 138 9 N.M. 264, 119 P.3d 144, this Court may retroactively apply Montoya only to the case 10 at bar because he “expressly advocated the position adopted in Montoya.” Forbes 11 does not stand for this proposition. 12 {30} Forbes involved a habeas petitioner who challenged his conviction on 13 Confrontation Clause grounds. U.S. Const. amend. VI; N.M. Const. art. II, § 14; 14 Forbes, 2005-NMSC-027, ¶¶ 1-2. Prior to his habeas petition, the petitioner initially 15 appealed his conviction to the New Mexico Supreme Court on the same 16 Confrontation Clause grounds and had obtained a reversal of his convictions. Id. ¶ 17 1. The United States Supreme Court vacated the reversal and remanded the case to 18 the New Mexico Supreme Court, instructing this Court to apply the reliability 19 analysis presented in Lee v. Illinois, 476 U.S. 530 (1986), limited by Idaho v. Wright,

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1 497 U.S. 805, 817 (1990). On remand, the New Mexico Supreme Court affirmed the 2 petitioner’s conviction. Forbes, 2005-NMSC-027, ¶ 1. However, Crawford v. 3 Washington, 541 U.S. 36, 68 (2004) validated the rationale used by this Court in its 4 original reversal of the petitioner’s conviction. Forbes, 2005-NMSC-027, ¶¶ 1, 6. 5 The New Mexico Supreme Court granted the petitioner habeas relief and ordered a 6 new trial. Id. ¶ 13. 7 {31} During the habeas proceedings, the Forbes court had to determine whether the 8 petitioner should benefit from the holding in Crawford, which was a case that was 9 announced almost 20 years after the petitioner’s conviction. Forbes, 2005-NMSC- 10 027, ¶ 7. This issue “initially turn[ed] on whether Crawford announce[d] a new 11 constitutional procedural rule” because Forbes noted that the United States Supreme 12 Court did not expressly state whether Crawford announced a new rule. Forbes, 2005- 13 NMSC-027, ¶ 7. Forbes concluded that Crawford did not announce a new rule 14 because the result was dictated by United States Supreme Court precedent existing 15 at the time of the petitioner’s conviction and the petitioner could rely on Crawford. 16 Forbes, 2005-NMSC-027, ¶¶ 8-10. Thus, under Forbes, a petitioner may rely upon 17 case law post-dating the petitioner’s conviction if the case law vindicates previously 18 overruled precedent. See id. ¶ 13.

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1 {32} In summary, when we granted habeas relief in Forbes, we did so on the basis 2 of well-established existing precedent, not a new rule. See id. ¶¶ 13-14. The viability 3 of the previous law may have been confirmed by a more recent case, but the precedent 4 had already been established. See id. ¶ 13. Forbes enables a habeas petitioner to rely 5 upon existing precedent to relitigate a claim on the basis that a court failed to apply 6 law that was available at the time of conviction. Id. ¶¶ 7-9. In addition, the decision 7 in Forbes was “limited to the very special facts of this case,” id. ¶ 13, and it is also 8 limited to situations where the petitioner is relitigating claims based upon existing 9 precedent. 10 {33} Dominguez cannot rely upon Forbes because he does not rely upon existing 11 precedent to support his position. Dominguez relies upon Montoya, a case decided 12 many years after his conviction was final. Instead of being dictated by previous 13 precedent, Montoya expressly departs from established law to create a new rule. 14 Compare Montoya, 2013-NMSC-020, ¶ 2 (overruling Gonzales, 1992-NMSC-003, 15 Dominguez, 2005-NMSC-001, and State v. Riley, 2010-NMSC-005, 147 N.M. 557, 16 226 P.3d 65), with Forbes, 2005-NMSC-027, ¶ 13 (“Our decision is . . . highlighted 17 by the fact that the very law this Court applied to [the petitioner’s] case twenty years 18 ago has now been vindicated, which entitled him now to the same new trial he should

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1 have received back then.”). At the time of Dominguez’s appeal in Dominguez I, a 2 majority of this Court relied on existing precedent to affirm his convictions. See 3 generally Dominguez I, 2005-NMSC-001 (citing Gonzales, 1992-NMSC-003). 4 Unlike Crawford or Forbes, Montoya does not reaffirm previously ambiguous case 5 law. Compare Crawford, 541 U.S. at 57 (citing Douglas v. Alabama, 380 U.S. 415, 6 418-20 (1965), and Forbes, 2005-NMSC-027, ¶ 8 (acknowledging the United States 7 Supreme Court’s reliance on Douglas, 280 U.S. 415, in Crawford, 541 U.S. 36, was 8 contrary to New Mexico v. Earnest, 477 U.S. 648 (1986)), with Montoya, 9 2013-NMSC-020, ¶ 2 (overruling, rather than vindicating, prior double jeopardy 10 jurisprudence). Consequently, Dominguez must request the retroactive application 11 of Montoya under Kersey to prevail. In fact, Forbes merely followed the Teague 12 approach in first determining whether Crawford announced a new rule as a possible 13 prelude to retroactivity analysis. See Forbes, 2005-NMSC-027, ¶¶ 7-8 (citing 14 Teague, 489 U.S. 288). Moreover, Dominguez cannot try to extend Forbes beyond 15 its narrow holding. Forbes is limited to a situation where the petitioner had 16 relitigated claims based upon a previous rule that was subsequently vindicated by the 17 Court’s later holding. See id. ¶ 13. 18 {34} Dominguez nevertheless contends that Forbes vindicated the rights of the

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1 petitioner on appeal “because this Court had relied on then-existing precedent when 2 it initially reversed the conviction,” and thus the petitioner preserved his identical 3 argument on appeal. However, such an extension misses a critical policy distinction 4 between Forbes and the position Dominguez urges us to adopt. By limiting its 5 holding to case law available at the time of the petitioner’s conviction, Forbes 6 promotes the finality of convictions by reaffirming existing precedent. See Kersey, 7 2010-NMSC-020, ¶ 26 (noting that applying the prevailing law at the time that a 8 conviction becomes final acknowledges the government’s interest in the finality of 9 the convictions). This limited holding “is consistent with our responsibility to do 10 justice to each litigant on the merits of his [or her] own case.” Forbes, 2005-NMSC- 11 027, ¶ 13 (emphasis added) (internal quotation marks and citation omitted). In 12 contrast, Dominguez’s position undermines the finality of convictions by making it 13 easier to retroactively apply new laws that were unavailable at the time of the 14 petitioner’s conviction. Dominguez’s position would allow criminal petitioners to 15 relitigate their convictions any time a new law is announced, regardless of whether 16 the new law was available at the time of their convictions. We are not persuaded by 17 Dominguez’s reliance on Forbes. 18 CONCLUSION

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1 {35} Dominguez has the right to relitigate his double jeopardy claims in the habeas 2 petition before us. See Clark, 1994-NMSC-098, ¶¶ 11, 14. However, Kersey 3 precludes the retroactive application of Montoya during this relitigation, and 4 Dominguez is not entitled to relief on any of his double jeopardy claims. We 5 therefore affirm the trial court’s dismissal of Dominguez’s writ of habeas corpus. 6 {36} IT IS SO ORDERED.

7 ______________________________ 8 EDWARD L. CHÁVEZ, Justice 9 WE CONCUR:

10 ___________________________________ 11 BARBARA J. VIGIL, Chief Justice

12 ___________________________________ 13 PETRA JIMENEZ MAES, Justice

14 ___________________________________ 15 RICHARD C. BOSSON, Justice

16 ___________________________________ 17 CHARLES W. DANIELS, Justice