FILED
NOT FOR PUBLICATION JUN 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HARRY D’AGOSTIN, No. 07-56469
Petitioner - Appellant, D.C. No. CV-04-02051-LAB
v.
MEMORANDUM *
ROBERT J. HERNANDEZ,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
California state prisoner Harry D’Agostin appeals from the district court’s
order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under
28 U.S.C. § 2253, and we affirm.
D’Agostin contends that the Board of Prison Terms (“Board”) found him
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
unsuitable for parole in 2002 and that its determination, made pursuant to
California’s Determinate Sentencing Law (“DSL”) and implementing regulations,
violated the Ex Post Facto Clause because his chances of parole were greater under
the Indeterminate Sentencing Law (“ISL”), which was in effect at the time of his
offense. This claim fails because D’Agostin has not established that “as applied to
his own sentence the [DSL] created a significant risk of increasing his
punishment.” Garner v. Jones, 529 U.S. 244, 255 (2000); see also Connor v.
Estelle, 981 F.2d 1032, 1034 (9th Cir. 1992) (per curiam) (“[A]pplication of the
DSL parole-suitability guidelines to prisoners sentenced under the ISL . . . does not
violate the federal constitutional prohibition against ex post facto laws.”). A
fortiori, he cannot establish that the state court decision denying his claims either
was contrary to or involved an unreasonable application of clearly established
Supreme Court precedent. See 28 U.S.C. § 2254(d).
We construe D’Agostin’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Swarthout v. Cooke, 131 S. Ct. 859, 862-63 (2011) (per curiam);
Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.
2 07-56469