Robert G. Smith v. GEORGE A. NEOTTI, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT G. SMITH,
Petitioner - Appellee,
v.
GEORGE A. NEOTTI, Warden,
Respondent - Appellant.
No. 12-56732
D.C. No. 8:06-cv-00752-DDP-
FMO
MEMORANDUM*
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.
FILED
MAR 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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.
2

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