                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GABRIEL JOHN BRADWAY,                       
               Petitioner-Appellant,
                 v.                                No. 08-55296
                                                     D.C. No.
MATTHEW CATE,* Secretary of the
California Department of                         CV-07-0022-IEG-
Corrections; EDMUND G. BROWN,                          POR
JR., ** Attorney General, State of                   OPINION
California,
            Respondents-Appellees.
                                            
        Appeal from the United States District Court
           for the Southern District of California
      Irma E. Gonzalez, Chief District Judge, Presiding

                     Argued and Submitted
              April 15, 2009—Pasadena, California

                      Filed December 3, 2009

  Before: William C. Canby, Jr., Johnnie B. Rawlinson, and
              N. Randy Smith, Circuit Judges.

                     Opinion by Judge Canby



   *Matthew Cate is substituted for his predecessor James Tilton, Secre-
tary of the California Department of Corrections, pursuant to Fed. R. App.
P. 43(c)(2).
   **Edmund G. Brown, Jr. is substituted for his predecessor William
Lockyer, Attorney General, State of California, pursuant to Fed. R. App.
P. 43(c)(2).

                                 15859
                       BRADWAY v. CATE                    15861




                         COUNSEL

Matthew Braner, Deputy Public Defender, San Diego, Cali-
fornia, for the petitioner-appellant.

Barry J. Carlton, Deputy Attorney General, San Diego, Cali-
fornia, for the respondents-appellees.


                          OPINION

CANBY, Circuit Judge.

   Gabriel Bradway appeals the denial of his habeas corpus
petition, alleging that the California special circumstances
statute that enhanced his first degree murder sentence to life
without the possibility of parole is unconstitutionally vague in
violation of Due Process Clause of the Fourteenth Amend-
ment. We affirm.

                     INTRODUCTION

   In 2001, Bradway was charged with first degree murder by
means of lying in wait. The special circumstance of lying in
wait was also charged, making Bradway eligible for a penalty
of death or life imprisonment without the possibility of parole.
See Cal. Penal Code §§ 189, 190.2(a)(15). In the trial court,
15862                  BRADWAY v. CATE
Bradway successfully moved to dismiss the lying in wait spe-
cial circumstance as impermissibly vague, but the California
Court of Appeal overturned that ruling and reinstated the spe-
cial circumstance charge. People v. Superior Court (Bradway
I), 129 Cal. Rptr. 2d 324 (Cal. Ct. App. 2003). The appellate
court found some overlap in the two statutes, but held that the
lying in wait special circumstance required specific intent to
kill, while the first degree murder statute did not. Id. at 333.
Bradway was then convicted and sentenced to life without
parole. Relief under the same vagueness claim was denied in
subsequent state habeas proceedings and by the district court
in this federal habeas action. The district court held that Cali-
fornia sufficiently distinguished the lying in wait special cir-
cumstance from the the lying in wait first degree murder
statute. It accordingly rejected Bradway’s vagueness chal-
lenge. We review that decision de novo. Reynoso v. Giurbino,
462 F.3d 1099, 1108 (9th Cir. 2006). Because Bradway fails
to demonstrate that the distinction drawn by California courts
is either contrary to, or an unreasonable application of, clearly
established federal law, we affirm.

                        DISCUSSION

   Bradway’s vagueness challenge is primarily based on a
specialized concept of vagueness most clearly defined by the
Supreme Court in dealing with Eighth Amendment challenges
to death penalties. To satisfy the Eighth Amendment, an
aggravating factor that renders a defendant subject to the
death penalty must reasonably distinguish his conduct from
that of the general run of murderers not to be sentenced to
death. See Tuilaepa v. California, 512 U.S. 967, 971-72
(1994). Bradway recognizes that he lacks standing for an
Eighth Amendment death penalty challenge because he was
not sentenced to death, see Houston v. Roe, 177 F.3d 901,
907-08 (9th Cir. 1999), so he presents his rather specialized
vagueness challenge to California’s special circumstance
under the Due Process Clause.
                       BRADWAY v. CATE                   15863
   [1] California Penal Code § 189 defines first degree murder
as, among other things, “murder which is perpetrated by
means of . . . lying in wait.” Such first degree murder is pun-
ishable by death or life without parole if any special circum-
stance is found to be true. One such circumstance is that
“[t]he defendant intentionally killed the victim by means of
lying in wait.” Cal. Penal Code § 190.2(a)(15). The identity
of language between the first degree murder statute and the
special circumstance naturally raises the question whether the
special circumstance adequately distinguishes a subset of vio-
lators subject to a more severe penalty.

   The special circumstance language did not always mimic so
exactly that of first degree murder. In Houston, 177 F.3d at
907-08, we rejected a due process challenge similar to Brad-
way’s, stating: “[T]he California legislature and courts have
created a thin but meaningfully distinguishable line between
first degree murder lying in wait and special circumstances
lying in wait.” That “thin” difference was that the language of
the special circumstances statute at that time referred to mur-
ders committed “while” lying in wait, imposing a temporal
requirement, and the first degree murder statute referred to
murders committed “by means of” lying in wait, lacking such
a requirement. Id. at 908. We held that this distinction was
sufficient to define and differentiate the subset of defendants
guilty of the special circumstance from the general run of
defendants so that the special circumstance “does not encour-
age arbitrary enforcement, and is not unconstitutionally
vague.” Id. (footnote omitted); see also Morales v. Woodford,
388 F.3d 1159, 1174-78 (9th Cir. 2004) (upholding same spe-
cial circumstance in death penalty case).

   Just a year after Houston, however, California changed the
language of the special circumstances statute from “while” to
“by means of” lying in wait, thereby eliminating, Bradway
argues, the only constitutionally significant distinction
between the statute defining the crime and that defining the
special circumstance.
15864                   BRADWAY v. CATE
   [2] Yet Houston did not say that the temporal distinction
between the two statutes was the only kind of distinction that
could prevent unconstitutional vagueness. In Bradway I, the
California Court of Appeal addressed the question whether
the post-amendment “lying in wait” special circumstance
merely duplicated the elements of first degree murder by
lying in wait, and therefore failed to narrow the class of per-
sons eligible for the death penalty or life without parole. It
held that “the special circumstance remains distinguishable
because it still requires the specific intent to kill, whereas first
degree murder by lying in wait does not.” Bradway I, 129 Cal.
Rptr. 2d at 333. The question for the present appeal is whether
this interpretation — that the distinction in intent sufficiently
narrows the class of persons eligible for life without parole —
was “contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d). We cannot
overturn the reasoning in Bradway I on habeas review “be-
cause of a conflict with Ninth Circuit-based law, but rather a
writ may issue only when the state court decision is ‘contrary
to, or involved an unreasonable application of,’ an authorita-
tive decision of the Supreme Court.” Moore v. Calderon, 108
F.3d 261, 264 (9th Cir.1997) (quoting 28 U.S.C. § 2254(d)).

   Bradway has offered, and we have found, no decision of
the Supreme Court holding that a distinction in intent (or,
indeed, any other distinction) fails to adequately narrow the
class of first degree murderers to those properly eligible for
a sentence of life without parole. Nor has the Supreme Court
decided any other case that could reasonably support Brad-
way’s due process claim of unconstitutional vagueness based
on a failure to narrow the class subjected to more severe pen-
alties.

  The Supreme Court has held that “[o]bjections to vague-
ness under the Due Process Clause rest on the lack of notice,
and hence may be overcome in any specific case where rea-
sonable persons would know that their conduct is at risk.”
                       BRADWAY v. CATE                    15865
Maynard v. Cartwright, 486 U.S. 356, 361 (1988); see also
Kolender v. Lawson, 461 U.S. 352, 357-58 (1983) (invalidat-
ing as vague a statute that did not “define the criminal offense
with sufficient definiteness [such] that ordinary people can
understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforce-
ment”). The California appellate court cited the Maynard lan-
guage when it held that Bradway’s due process challenge
failed because he would reasonably know that preparing to
and committing murder in the way that he did would fall
under the lying in wait special circumstance umbrella. Brad-
way I, 129 Cal. Rptr. 2d at 332-33. That holding was not a
misapplication or misinterpretation of Maynard. Bradway
considered murdering his victim for a month before doing so,
gained entry to her apartment by pretending to need to use her
computer, hid a hammer in his belt, and finally killed her
when she had her back to him — nearly thirty minutes after
first entering her apartment.

   [3] Aside from notice concerns, the Supreme Court cases
that have upheld vagueness challenges to sentencing enhance-
ments involve statutory language that is not reasonably defi-
nite and that leaves room for discretion. See e.g., Maynard,
486 U.S. 356 (invalidating “especially heinous, atrocious, or
cruel” aggravating circumstance); Godfrey v. Georgia, 446
U.S. 420 (1980) (invalidating “outrageously or wantonly vile,
horrible or inhuman” aggravating circumstance). Bradway
does not claim, nor could he, that “lying in wait” is not defi-
nite as applied to his case; on the contrary, his argument
essentially claims that the special circumstance is definitely
the same as the first degree murder statute.

   [4] Bradway accordingly has failed to show that the Cali-
fornia courts violated or unreasonably applied federal law as
determined by the Supreme Court. He therefore has not met
the requirements of AEDPA, 28 U.S.C. § 2254(d), for issu-
ance of a writ of habeas corpus.
15866                 BRADWAY v. CATE
   The judgment of the district court denying Bradway’s peti-
tion for a writ of habeas corpus is

  AFFIRMED.
