(specially concurring).
I disagree with the majority when they decide a claim of fundamental error on the basis that cases cited by defendant were not retroactive.
Gilbert v. California, supra, and United States v. Wade, supra, are concerned with identification of a defendant at a line-up in the absence of counsel. The exclusionary rule in those cases was held not to be retroactive in Stovall v. Denno, supra. We are not concerned here with absence of counsel at a line-up because no such claim is made by defendant.
Defendant claims fundamental error on the basis of an unfair line-up. This is a recognized ground for attacking a conviction independent of any right to counsel claim. Simmons v. United States, supra; Stovall v. Denno, supra.
A review of the evidence concerning identification of defendant at a line-up shows no suggestive procedures of any kind. See State v. Torres, supra. Thus, there is nothing to support the claim of fundamental error as that concept has been defined in New Mexico decisions. See State v. Rodriguez, 81 N.M. 503, 469 P.2d 148 (1970).
There being no fundamental error, the matters raised are those required to be raised by direct appeal. Jones v. State, 81 N.M. 568, 469 P.2d 717 (1970). Thus, once the claim of fundamental error is ruled against defendant, there are no issues to be considered in a post-conviction proceeding.
Accordingly, I concur in the result.