OPINION
HERNANDEZ, Judge.
The defendant’s motion for post-conviction relief, brought pursuant to Section 21-1-1(93), N.M.S.A. 1953 (Repl. Vol. 4, 1970), subsequently superseded by Section 41-23-1 et seq., N.M.S.A. 1953 (2d Repl. Vol. 6, Supp. 1975), raises the question of whether the following rule laid down in State v. Sparks, 85 N.M. 429, 512 P.2d 1265 (Ct.App.1973) should be accorded retroactive application:
“[0]nce the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness’ grand jury testimony relating to the crime for which defendant is charged.”
The prior rule, promulgated in State v. Tackett, 78 N.M. 450, 432 P.2d 415 (1967), 20 A.L.R.3d 1 (1968), cert. denied 390 U.S. 1026, 88 S.Ct. 1414, 20 L.Ed.2d 283 (1968), was that the transcript of the testimony of witnesses before a grand jury need not be supplied to defendants in the absence of a showing of a particularized need for such transcript.
In May, 1971, the defendant was convicted of three counts of armed robbery. Three of the witnesses who testified before the grand jury also testified against the defendant at trial. On the first day of trial one of these three witnesses, Dale Blythe, was examined. At the start of the second day of the trial the defendant made a motion for production of the transcript of the grand jury minutes for purposes of cross-examination. The motion was denied. • Defendant appealed, alleging as his first point of error that the trial court had erred in denying his motion for production of the transcript of the grand jury minutes. We affirmed his conviction, State v. Valles, 83 N.M. 541, 494 P.2d 619 (Ct.App.1972). His first point of error in that appeal was denied on the ground that defendant did not show a particularized need as required by Tackett, supra.
Section 21-1-1(93), supra, provides in part:
“A prisoner in custody under sentence of a court established by the laws of New Mexico claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution of the United States, or of the Constitution or laws of New Mexico may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
The trial court denied defendant’s Rule 93 motion on the grounds that the demand for the transcript of the grand jury minutes had been considered on appeal and that the denial was correct under the then-prevailing rule and that the new rule should not be retroactively applied.
Before considering the question of retrospectivity, we must consider whether this is a proper case for post-conviction consideration under Rule 93. This rule was adopted from the federal judicial code, 28 U.S.C. § 2255; interpretations of that section, although not binding upon us, are nonetheless persuasive.
“. . . § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus. . ‘[T]he sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.’ . ‘As a remedy, it is intended to be as broad as habeas corpus.’
“This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. . . . [T]he appropriate inquiry . [is] whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘[i]t . presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
“. . [T]he availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake.” Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).
Article II, § 7 of the Constitution of New Mexico provides: “The privilege of the writ of habeas corpus shall never be suspended, unless, in case of rebellion or invasion, the public safety requires it.” And, Article II, § 14 provides in part: “In all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the witnesses against him . ” [Emphasis added]. As we stated in State v. Sparks, supra:
“The right of cross-examination is [implicit in] the constitutional right to be confronted with the witnesses against one.
“ ‘. . . The State has no interest in denying the accused access to all evidence that can throw light on issues in the case, and, in particular, the state should have no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.’
“If otherwise, an accused is denied the right to confront the witnesses against him.”
And as we further stated in State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975):
“It has long been recognized that a transcript of prior testimony is a most useful tool in mounting an attack upon the credibility of witnesses, [citation omitted] The refusal to give a copy of the grand jury testimony of witnesses who would also testify at trial on the same subject matter has been held to deny a defendant the right of effective cross-examination.”
Clearly the question of a denial of the constitutional right of confrontation is cognizable under a Rule 93 proceeding.
As to the question of the trial court’s denying defendant’s motion on the ground that the issue of the denial of the grand jury minutes had been considered on the prior appeal, the trial court was in error. The purpose of Rule 93 was to allow a collateral review as to the validity of a conviction. State v. Ramirez, 78 N.M. 418, 432 P.2d 262 (1967). The defendant’s conviction may have been valid by the constitutional standards in effect when it took place, but not valid when measured by the higher standard of Sparks. To accept the trial court’s reasoning in this instance would be contrary to the very purpose of Rule 93. Rule 93 was not intended to allow collateral review of claimed error which has already been raised and decided on direct appeal. Only in cases such as in the instant case where there has been a change in the law governing the error is a Rule 93 review proper.
We turn then to the question of the retrospectivity of the rule in Sparks.
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OPINION
HERNANDEZ, Judge.
The defendant’s motion for post-conviction relief, brought pursuant to Section 21-1-1(93), N.M.S.A. 1953 (Repl. Vol. 4, 1970), subsequently superseded by Section 41-23-1 et seq., N.M.S.A. 1953 (2d Repl. Vol. 6, Supp. 1975), raises the question of whether the following rule laid down in State v. Sparks, 85 N.M. 429, 512 P.2d 1265 (Ct.App.1973) should be accorded retroactive application:
“[0]nce the witness has testified at the criminal trial about that which he testified before the grand jury, the accused is entitled to an order permitting examination of that portion of the witness’ grand jury testimony relating to the crime for which defendant is charged.”
The prior rule, promulgated in State v. Tackett, 78 N.M. 450, 432 P.2d 415 (1967), 20 A.L.R.3d 1 (1968), cert. denied 390 U.S. 1026, 88 S.Ct. 1414, 20 L.Ed.2d 283 (1968), was that the transcript of the testimony of witnesses before a grand jury need not be supplied to defendants in the absence of a showing of a particularized need for such transcript.
In May, 1971, the defendant was convicted of three counts of armed robbery. Three of the witnesses who testified before the grand jury also testified against the defendant at trial. On the first day of trial one of these three witnesses, Dale Blythe, was examined. At the start of the second day of the trial the defendant made a motion for production of the transcript of the grand jury minutes for purposes of cross-examination. The motion was denied. • Defendant appealed, alleging as his first point of error that the trial court had erred in denying his motion for production of the transcript of the grand jury minutes. We affirmed his conviction, State v. Valles, 83 N.M. 541, 494 P.2d 619 (Ct.App.1972). His first point of error in that appeal was denied on the ground that defendant did not show a particularized need as required by Tackett, supra.
Section 21-1-1(93), supra, provides in part:
“A prisoner in custody under sentence of a court established by the laws of New Mexico claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution of the United States, or of the Constitution or laws of New Mexico may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
The trial court denied defendant’s Rule 93 motion on the grounds that the demand for the transcript of the grand jury minutes had been considered on appeal and that the denial was correct under the then-prevailing rule and that the new rule should not be retroactively applied.
Before considering the question of retrospectivity, we must consider whether this is a proper case for post-conviction consideration under Rule 93. This rule was adopted from the federal judicial code, 28 U.S.C. § 2255; interpretations of that section, although not binding upon us, are nonetheless persuasive.
“. . . § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus. . ‘[T]he sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.’ . ‘As a remedy, it is intended to be as broad as habeas corpus.’
“This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. . . . [T]he appropriate inquiry . [is] whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘[i]t . presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
“. . [T]he availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake.” Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).
Article II, § 7 of the Constitution of New Mexico provides: “The privilege of the writ of habeas corpus shall never be suspended, unless, in case of rebellion or invasion, the public safety requires it.” And, Article II, § 14 provides in part: “In all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the witnesses against him . ” [Emphasis added]. As we stated in State v. Sparks, supra:
“The right of cross-examination is [implicit in] the constitutional right to be confronted with the witnesses against one.
“ ‘. . . The State has no interest in denying the accused access to all evidence that can throw light on issues in the case, and, in particular, the state should have no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.’
“If otherwise, an accused is denied the right to confront the witnesses against him.”
And as we further stated in State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975):
“It has long been recognized that a transcript of prior testimony is a most useful tool in mounting an attack upon the credibility of witnesses, [citation omitted] The refusal to give a copy of the grand jury testimony of witnesses who would also testify at trial on the same subject matter has been held to deny a defendant the right of effective cross-examination.”
Clearly the question of a denial of the constitutional right of confrontation is cognizable under a Rule 93 proceeding.
As to the question of the trial court’s denying defendant’s motion on the ground that the issue of the denial of the grand jury minutes had been considered on the prior appeal, the trial court was in error. The purpose of Rule 93 was to allow a collateral review as to the validity of a conviction. State v. Ramirez, 78 N.M. 418, 432 P.2d 262 (1967). The defendant’s conviction may have been valid by the constitutional standards in effect when it took place, but not valid when measured by the higher standard of Sparks. To accept the trial court’s reasoning in this instance would be contrary to the very purpose of Rule 93. Rule 93 was not intended to allow collateral review of claimed error which has already been raised and decided on direct appeal. Only in cases such as in the instant case where there has been a change in the law governing the error is a Rule 93 review proper.
We turn then to the question of the retrospectivity of the rule in Sparks. Because of the paucity of New Mexico cases on this subject we look to the decisions of the federal courts for guidance. Prior to Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1964), all opinions of the Supreme Court of the United States giving a new and broader interpretation of the Bill of Rights in criminal cases were given retrospective effect. The following position, however, was adopted in Linkletter:
“At common law there was no authority for the proposition that judicial decisions made law only for the future. Blackstone stated the rule that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’ . . The judge rather than being the creator of the law was but its discoverer.
“Implicit in such an approach is the admission when a case is overruled that the earlier decision was wrongly decided.
“However, some legal philosophers continued to insist that such a rule was out of tune with actuality largely because judicial repeal ofttime did ‘work hardship to those who [had] trusted its existence.’ . Chief Justice Hughes in Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940) . . . reasoned that the actual existence of the law prior to the determination of unconstitutionality ‘is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.’
“Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective.
“While the cases discussed above deal with invalidity of statutes or the effect of a decision overturning long established common-law rules there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application.
“Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.”
In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) the Supreme Court further amplified the test to be applied in deciding whether a given opinion should be given retroactive application:
“The criteria guiding resolution of the question implicate (a) the purposé to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”
The Supreme Court in Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), had before it the question of whether Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), should be given retroactive application. The holding in Coleman was that a preliminary hearing was a critical stage of the criminal process at which the accused was constitutionally entitled to the assistance of counsel. The Supreme Court held that Coleman should not be given retroactive application. The Court did state the following, however:
“We have given complete retroactive effect to the new rule, regardless of good-faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the ‘major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials. . .
Most of the rules of evidence and procedure governing the conduct of criminal trials were designed to enhance the truth-finding process, to the end that we do not convict an innocent person. However, as we indicated in Sparks and Romero, supra, the right of confrontation is not a mere rule of evidence or procedure but a constitutional right of primary importance in the truth-finding process, because we have yet to devise a more effective method of eliciting the truth than effective cross-examination. The function and importance of this constitutional right and the concomitánt right of cross-examination mandates retro-activity, regardless of previous reliance on the old rule or the possible impact on the administration of justice.
Whether there is or is not anything in the grand jury minutes that might be of aid to the defendant in cross-examination should not be determined by a court. As was stated in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966): “In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.”
The judgment is vacated and the case remanded with instructions to grant the defendant a new trial.
IT IS SO ORDERED.
SUTIN, J., specially concurs. HENDLEY, J., dissents.