dissenting:
In considering this habeas corpus petition it is well to understand the standard of review where the issue is the sufficiency of the evidence to sustain the conviction. Pri- or to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), challenges to state convictions based on insufficiency of evidence were not seen as presenting any constitutional issues suitable for habeas corpus review. As long as there was some evidence to support the conviction, it would not be overturned on habeas. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Under Jackson, sufficiency of evidence is now a federal constitutional issue. However, Jackson does not require, or permit, federal courts to review the evidence de novo and, in effect, try the case anew. Our role is strictly limited. Even if we, after thoroughly reviewing the record, do not believe that there is sufficient evidence to sustain the conviction, we *908cannot grant the writ of habeas corpus unless we can say, after making all reasonable inferences in favor of the state, that no rational trier of fact could find the defendant guilty beyond a reasonable doubt. Neither the appellate court nor the district court need “satisfy itself of proof beyond a reasonable doubt'.... [S]uch a standard of review . .. would not comport with the rule announced in Jackson .. . and would in fact invade the province of the factfinder at trial .. . . ” Holloway v. McElroy, 632 F.2d 605, 640 n.54 (5th Cir. 1980). See also United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980) (“It is not our task to weigh the evidence or to assess the credibility of the witnesses.”); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1776, 64 L.Ed.2d 398 (1980) (White, J., dissenting) (“the issue here is not what our verdict would have been, but whether ‘any rational factfinder’ could have found [sufficient evidence].”).
The problem here is that the majority has in effect undertaken a de novo review of the evidence using the typewritten transcript of the testimony. Although the majority correctly points out that this case can be distinguished from other, similar cases, the differences are not great. This court and others have found sufficient evidence to sustain convictions in cases where the evidence is little stronger than in the present case. See, e. g., United States v. Carrillo, 565 F.2d 1323 (5th Cir. 1978); Garza v. United States, 385 F.2d 899 (5th Cir. 1967); State v. Little, 353 So.2d 255 (La. 1977) (covert conduct and track marks sufficient to show constructive possession); State v. Hinchen, 342 So.2d 174 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971) (husband found to constructively possess narcotics in physical custody of wife notwithstanding her testimony that he was unaware of drugs). Making all inferences in favor of the Government, the record indicates that two police officers discovered Harris and his companion Thibodeaux apparently under the influence of narcotics, in a car blocking a New Orleans city street at 3:25 a. m. There was a high-powered handgun on the seat between them and twenty-seven foil packets of heroin in plain view on the console between Harris and Thibodeaux. Harris had “fresh” track marks on one arm and older marks on his other arm, indicating that he had injected himself with heroin within the past few hours and had used it numerous times in the past. The only exculpatory evidence was a stipulation that Thibodeaux, who was not present at trial and who had previously pleaded guilty to possession of heroin, would have testified that he alone owned the car and the heroin.1 It certainly cannot be said that the trial judge was irrational in giving Thibodeaux’s statement little or no credence.
The state trial judge, as trier of fact, found that the evidence demonstrated petitioner’s guilt beyond a reasonable doubt. Unel Harris was thus convicted by the trial judge in Louisiana state court of possession of heroin. The court sentenced him to 20 years’ imprisonment as a multiple offender, under the applicable Louisiana statute, since Harris had previous felony convictions in Louisiana state courts for possession of barbiturates, possession of heroin, and simple burglary. On appeal, the seven justices of the Louisiana Supreme Court, with no dissent, agreed and affirmed the conviction in a per curiam decision without opinion, State v. Harris, 365 So.2d 830 (La.1978). In this federal proceeding, a United States magistrate, applying the Jackson criteria, found that “[i]t appears beyond peradventure that any rational trier of fact, presented with the evidence adduced herein, could have found the essential elements of the crime beyond a reasonable doubt.” A United States district judge, after reviewing the magistrate’s report, the record and the petition, agreed that there was sufficient evidence and denied the writ. In denying the petitioner’s motion for certificate of probable cause, the district judge held “that there was more than sufficient evidence to establish petitioner’s constructive possession of the discovered heroin. The record also indicates that a rational trier of fact could conclude beyond a reasonable doubt that all *909elements of the crime were proven.” With the original trier of fact and nine reviewing judges all finding that the evidence demonstrated the petitioner’s guilt beyond a reasonable doubt, I cannot now say, as I would be required to by Jackson, that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Under the circumstances, I dissent.
. Asa first offender, Thibodeaux was placed on probation for this violation.