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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10424

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.

United States Court of Appeals

Fifth Circuit

F I L E D

February 18, 2010

Charles R. Fulbruge III

Clerk

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No. 07-10424

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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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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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