                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANDRE J PERDUE,                                 No.    16-55793

                Petitioner-Appellant,           D.C. No.
                                                2:10-cv-08041-GW-MRW
 v.

RALPH M. DIAZ, Acting Secretary for the         MEMORANDUM*
California Department of Corrections and
Rehabilitation,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                           Submitted October 12, 2018**
                              Pasadena, California

Before: WATFORD and OWENS, Circuit Judges, and ZIPPS,*** District Judge.

      Andre Perdue appeals from the district court’s order denying his petition for



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
                                                                         Page 2 of 3

a writ of habeas corpus. He argues that the state court’s determination that his

statute of conviction was not unconstitutionally vague was unreasonable under 28

U.S.C. § 2254(d)(1) and (2). We affirm.

      At the time of Perdue’s conviction, January 2009, California Penal Code

§ 12370(a) made it illegal for a person who had been convicted of a violent felony

to possess “body armor,” which the statute defined with reference to the California

Code of Regulations. The regulation—title 11, section 942(e)—in turn defined

“body armor” as “those parts of a complete armor that provide ballistic resistance

to the penetration of the test ammunition for which a complete armor is certified.”

Perdue argues that, because of its highly technical definition of “body armor,” the

regulation gave insufficient notice of “what conduct [was] prohibited.” Kolender

v. Lawson, 461 U.S. 352, 357 (1983). As a person of ordinary intelligence, he

contends, he had no way to know whether his particular vest constituted “body

armor” under California law.

      The state court’s decision upholding the statute was not “contrary to” or “an

unreasonable application of” Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

The Court has explained that “[o]bjections to vagueness . . . may be overcome in

any specific case where reasonable persons would know that their conduct is at

risk.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (emphasis added). In

other words, “no more than a reasonable degree of certainty can be demanded. [It
                                                                          Page 3 of 3

is not] unfair to require that one who deliberately goes perilously close to an area

of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor

Lines, Inc. v. United States, 342 U.S. 337, 340 (1952). The state court reasonably

held that the regulation, by referring to “body armor” and a “bulletproof vest,”

gave Perdue the degree of certainty that due process requires. Whether or not an

ordinary person would know that a particular vest was contraband, he or she would

know that it was “perilously close.” Id.

      Nor was the state court’s decision “based on an unreasonable determination

of the facts.” 28 U.S.C. § 2254(d)(2). The court remarked that it was “reasonable

to infer that [Perdue] knew that his possession of the ‘bulletproof vest’ was a

crime.” That inference was reasonable: There was ample evidence that Perdue

knew it was illegal for him to possess his vest.

      AFFIRMED.
