                                                                           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                            NOT FOR PUBLICATION                             JUN 29 2011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
