Andre Jperdue v. RALPH M. DIAZ, Acting Secretary for the California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE J PERDUE,
Petitioner-Appellant,
v.
RALPH M. DIAZ, Acting Secretary for the
California Department of Corrections and
Rehabilitation,
Respondent-Appellee.
No. 16-55793
D.C. No.
2:10-cv-08041-GW-MRW
MEMORANDUM*
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.
FILED
OCT 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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