Gilberto Hernandez v. Rick Thaler, Director

366 F. App'x 530

Opinions

Judges WIENER and SOUTHWICK join in this opinion by Judge REAVLEY.

Judge WIENER joins the concurring opinion of Judge SOUTHWICK.

ON PETITION FOR REHEARING

REAVLEY, Circuit Judge:

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The petition for rehearing led to an en banc poll that began but was then can-celled, 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.

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, 101 S.Ct. 426, 66 L.Ed.2d 828 (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.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.