D'Agostin v. Hernandez

440 F. App'x 598

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2011
• Docket: 07-56469
• Status: Unpublished

Opinion

MEMORANDUM **

California state prisoner Harry D’Agos-tin 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 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, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); see also Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir.1992) (per curiam) (“[Application 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 fortio-ri, 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, — U.S. -, -, 131 S.Ct. 859, 862-63, 178 L.Ed.2d 732 (2011) (per curiam); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.