     Case: 07-10424      Document: 00511030264         Page: 1    Date Filed: 02/18/2010




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                          February 18, 2010

                                       No. 07-10424                    Charles R. Fulbruge III
                                                                               Clerk

GILBERTO D. HERNANDEZ

                                                   Petitioner - Appellant
v.

RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division

                                                   Respondent - Appellee




                     Appeal from the United States District Court
                          for the Northern District of Texas
                                 USDC No. 06-CV-69




                           ON PETITION FOR REHEARING


Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:*
            The petition for rehearing led to an en banc poll that began but was then
cancelled, leaving the petition in the hands of the panel.                  We now grant
rehearing, withdraw the prior ruling, and affirm the judgment of the trial court.

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
  Case: 07-10424    Document: 00511030264     Page: 2    Date Filed: 02/18/2010

                                 No. 07-10424

      As was explained in our prior opinion, the Petitioner Hernandez sought
review of his Texas sentence because of his expectation of a different term and
complained that there had been a violation of the Double Jeopardy Clause of the
United States Constitution.
      Because Texas has not prosecuted Hernandez a second time for the same
offense and has not punished him multiple times for the same offense, there is
no violation of Double Jeopardy. See United States v. DiFrancesco, 449 U.S. 117
(1980). Even if Mr. Hernandez did expect for good reason that his sentence
would end before 2014, and even if it were an unexpected ruling by the Texas
Court of Criminal Appeals in Ex Parte Forward, 258 S.W.3d 151. (Tex. Crim.
App. 2008), no constitutional right has been violated.
      AFFIRMED.
      Judges Wiener and Southwick join in this opinion by Judge Reavley.
Judge Wiener joins the concurring opinion of Judge Southwick.




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   Case: 07-10424    Document: 00511030264       Page: 3   Date Filed: 02/18/2010

                                   No. 07-10424

SOUTHWICK, Circuit Judge, specially concurring.
      Double Jeopardy prohibits Texas from prosecuting Hernandez a second
time for the same offense after an acquittal or punishing him multiple times for
the same offense. Jones v. Thomas, 491 U.S. 376, 381 (1989). There has been
no second prosecution.     As to multiple punishments, initially we held that
Hernandez had raised enough in his motion to create a need for discovery. The
question was whether Texas adjusted his sentence in a manner that disturbed
a legitimate expectation of its finality. See United States v. DiFrancesco, 449
U.S. 117, 137 (1980).     The Supreme Court has also made it clear that the
Constitution did not give a defendant “the right to know at any specific moment
in time what the exact limit of his punishment will turn out to be.” Id.
      On rehearing, I am convinced that we need not reach the question of the
manner in which the language in DiFrancesco about reasonable expectations
would apply to Hernandez’s claims about his sentences. Whatever his personal
expectation might have been, Hernandez has not identified any basis in state
law that was the source for his expectation that was later thwarted by the
decision of Ex Parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008).
      The discovery we ordered would have pursued whether sentences indeed
were once served differently than Ex Parte Forward declared. That was error.
The purpose of discovery is not to fish for the possible; it is to find what there is
good cause to believe exists. Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).
“Conclusionary allegations are not enough to warrant discovery” in a suit. Id.
Hernandez has not shown good cause.
      Therefore, whether the certainty he claims he once had and then lost is
one the Double Jeopardy Clause protects does not need to be reached.
      It is for these reasons that I join in the substitute opinion for the panel.




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