OPINION
In State v. Montoya,
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),
BACKGROUND
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,
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, amended2003) and NMSA 1978, Section 30-28-2 (1979).
The Court of Appeals unanimously affirmed Dominguez’s convictions. See State v. Dominguez, No. 23,286, mem. op. ¶¶ 5, 14 (N.M. Ct. App. May 20, 2003) (non-precedential). Dominguez petitioned for certiorari review, State v. Dominguez, cert. granted,
A divided Supreme Court rejected Dominguez’s claims and affirmed the Court of Appeals. Id. ¶ 26. Applying the Bloclcburger 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.
This Court overruled Dominguez I in Montoya,
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 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,
DISCUSSION
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,
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 7] only.”
I. Dominguez Can Relitigate Previously Raised Claims
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,
The first set of convictions concerns Solisz’s death. These two convictions present facts that are similar to those in Montoya. Compare Dominguez I,
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,
Dominguez urges us to go furtherand 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.
Clark involved a habeas petition which relied upon case law that was “announced after [the petitioner’s] conviction and sentence became final.” See
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.,
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,
II. Montoya Does Not Apply Retroactively
As we indicated in paragraph 11, supra,Montoya announces anew rule because Montoya explicitly overruled Dominguez I. See Montoya,
Kersey adopted the federal standard of retroactivity in Teague v. Lane,
Pursuant to Teague, Kersey mandates a two-pronged test to determine retroactivity.
In Kersey, we concluded that a new procedural rule of law was announced in State v. Frazier,
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 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,
Montoya concerns double jeopardy jurisprudence. See
Using the Kersey analysis,
III. Kersey Cannot Be Overruled Because of Stare Decisis
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.
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,
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 multifactor balancing test that proved unworkable. See Kersey,
IV. State v. Forbes Does Not Hold That Litigating a Claim on Appeal Automatically Entitles the Litigant to Retroactive Application of New Rules
Finally, Dominguez argues that under State v. Forbes,
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,
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,
In summary, when we granted habeas relief in Forbes, we did so on the basis of well-established existing precedent, not a new rule. See id. ¶¶ 13-14. The viability of the previous law may have been confirmed by a more recent case, but the precedent had already been established. See id. ¶ 13. Forbes enables a habeas petitioner to rely upon existing precedent to relitigate a claim on the basis that a court failed to apply law that was available at the time of conviction. Id. ¶¶ 7-9. In addition, the decision in Forbes was “limited to the very special facts of this case,” id. ¶ 13, and it is also limited to situations where the petitioner is relitigating claims based upon existing precedent.
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,
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,
CONCLUSION
Dominguez has the right to relitigate his double jeopardy claims in the habeas petition before us. See Clark,
IT IS SO ORDERED.
WE CONCUR:
Notes
Overruling recognized by State v. Servantez,
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.
The right to counsel applied retroactively because the absence of criminal defense attorneys produces a high risk of unreliable convictions. See Whorton v. Bockting,