                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 11 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

ROBERT G. SMITH,                                 No. 12-56732

              Petitioner - Appellee,             D.C. No. 8:06-cv-00752-DDP-
                                                 FMO
  v.

GEORGE A. NEOTTI, Warden,                        MEMORANDUM*

              Respondent - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                       Argued and Submitted March 4, 2014
                              Pasadena, California

Before: FERNANDEZ and GRABER, Circuit Judges, and ZOUHARY,**
        District Judge.


       Respondent George Neotti appeals the district court’s order granting a writ

of habeas corpus to Petitioner Robert Smith. Reviewing de novo, Lujan v. Garcia,

734 F.3d 917, 923 (9th Cir. 2013), we reverse.

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
        The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      The district court erred in holding that insufficient evidence supported

Petitioner’s conviction under California Health and Safety Code section 11350(a)

for possessing black-tar heroin. Viewing the evidence in the light most favorable

to the prosecution, a rational juror could have found the elements, including the

element that Petitioner possessed a "usable quantity" of heroin, beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Deputy Sheriff

Wayne Byerley testified that, in his opinion, which rested on his training and

experience, the heroin that he had found in Petitioner’s possession was a usable

quantity. Regardless of the total weight of the heroin and regardless of the

testimony of the scientist, the jury could have credited Deputy Byerley’s testimony

on usable quantity. See United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir.

2010) (en banc) ("We cannot second-guess the jury’s credibility assessments;

rather, ‘under Jackson, the assessment of the credibility of witnesses is generally

beyond the scope of review.’" (quoting Schlup v. Delo, 513 U.S. 298, 330

(1995))).

      REVERSED.




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