                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 04 2010

                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS


                            FOR THE NINTH CIRCUIT

 CAROLE ANN RUCKER,
                                                  No. 08-56652
             Petitioner-Appellant,

             v.                                   D.C. No. 07-CV0364-IEG-RBB

 MARY LATTIMORE, Warden Central                   MEMORANDUM *
 California Women’s Facility at
 Chowchilla, California,

            Respondent-Appellee.




                    Appeal from the United States District Court
                       for the Southern District of California
                  Irma E. Gonzalez, Chief District Judge, Presiding

                     Argued and Submitted February 10, 2010
                              Pasadena, California

Before:      THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
             Judge**

      Petitioner-Appellant Carole Ann Rucker, a state prisoner, appeals the district

court’s denial of her habeas corpus petition. We review the district court's

determination de novo. Schell v. Witek, 218 F.3d 1017, 1022 (9th Cir. 2000). The

petition is subject to the deferential standards established by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). We must determine whether the

state court proceedings “resulted in a decision that 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)(1). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The trial court did not violate Rucker’s due process rights by failing to hold

an evidentiary hearing after Rucker’s counsel submitted a declaration by the jury

foreperson, Bruce Robinson, alleging juror misconduct. “An evidentiary hearing is

not mandated every time there is an allegation of jury misconduct or bias. Rather,

in determining whether a hearing must be held, the court must consider the content

of the allegations, the seriousness of the alleged misconduct or bias, and the

credibility of the source.” United States v. Saya, 247 F.3d 929, 934-35 (9th Cir.

2001). “In rare instances, credibility may be determined without an evidentiary

      **
        The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.

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hearing where it is possible to ‘conclusively’ decide the credibility question based

on ‘documentary testimony and evidence in the record.’” Earp v. Ornoski, 431

F.3d 1158, 1169-70 (9 th Cir. 2005), citing Watts v. United States, 841 F.2d 275,

277 (9th Cir. 1998). Based upon its observation of Robinson throughout the trial

and jury deliberation process, the conflicting declarations of four other jury

members, and Robinson’s visits to Rucker in prison immediately prior to his

submission of his declaration, the trial court reasonably determined that

Robinson’s allegations of juror misconduct lacked credibility.

      Nor did the district court err in rejecting Rucker’s claim that the trial court

violated her right to due process by coercing Robinson not to testify. “The right to

offer the testimony of witnesses, and to compel their attendance, if necessary, is in

plain terms the right to present a defense, the right to present the defendant's

version of the facts as well as the prosecution's to the jury so it may decide where

the truth lies...This right is a fundamental element of due process of law.” Webb v.

Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330 (1972), quoting

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019

(1967). Rucker did not show that the trial court’s actions were unreasonable.

While it did assert that Robinson should be counseled as to his Fifth Amendment

privilege and opined aloud that Robinson’s behavior might constitute obstruction



                                           3
of justice, the trial court made these statements outside Robinson’s presence. See

contra Webb, 409 U.S. at 98 (holding that “unnecessarily strong terms used by the

judge could well have exerted such duress on the witness’ mind as to preclude him

from making a free and voluntary choice whether or not to testify”). Moreover,

when Robinson invoked his Fifth Amendment privilege, he did so through his

counsel. See United States v. Jaeger, 538 F.3d 1227, 1229-32 (9th Cir. 2008)

(holding witness was not coerced into invoking Fifth Amendment privilege in part

because the court provided the witness an opportunity to consult with counsel prior

to deciding whether to testify).

      The trial court did not violate Rucker’s right to due process by allowing

Robinson to invoke his Fifth Amendment privilege in a blanket fashion. We have

held generally that “[a] proper application of [Hoffman v. United States, 341 U.S.

479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)] requires that the Fifth Amendment claim

be raised in response to specific questions...Thus a blanket refusal to answer any

question is unacceptable.” United States v. Pierce, 561 F.2d 735, 741 (9 th Cir.

1997). However, “[i]n United States v. Tsui, 646 F.2d 365 367-68 (9 th Cir. 1981),

we found ‘an exception to...Pierce...[where,] based on its knowledge of the case

and of the testimony expected from the witness, [the trial court] can conclude that

the witness could ‘legitimately refuse to answer essentially all relevant questions.’”



                                           4
United States v. Moore, 682 F.2d 853, 856 (9 th Cir. 1982), quoting United States v.

Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). “This exception, however, is a

narrow one, only applicable where the trial judge has some special or extensive

knowledge of the case that allows evaluation of the claimed fifth amendment

privilege even in the absence of specific questions to the witness.” Id.

      The trial court was intimately familiar with the case and with Robinson’s

potential testimony. In fact, at an earlier hearing on Rucker’s motion for a new

trial, after reviewing the declaration submitted by Robinson that would form the

basis of his proffered testimony, the trial court itself noted that Robinson risked

self-incrimination. Accordingly, the trial court’s determination that the privilege

applied to the entirety of Robinson’s testimony falls within the exception

articulated in Moore and was not contrary to law.

      The district court did not err in rejecting Rucker’s claim that her

constitutional rights were violated when during jury deliberation jurors nine and

two discussed their personal experiences as victims of sexual assault. “A juror’s

past personal experiences may be an appropriate part of the jury’s deliberations.”

Grotemeyer v. Hickman, 393 F.3d 871, 879 (9 th Cir. 2004); see id. at 880 (holding

that “[i]t is probably impossible for a person who has highly relevant experience to

evaluate the credibility of witnesses without that experience bearing on the



                                           5
evaluation. Were we to require the impossible and prohibit jurors from relying on

relevant, past personal experience, about all we would accomplish would be to

induce jurors to lie about it when questioned afterward...”).

      Finally, the district court did not err in rejecting Rucker’s claim that the trial

court’s use of CALJIC 2.50.02 violated her right to due process because it allowed

the jury to find her guilty of the attempted murder of Hubert Watson if it found by

a preponderance of the evidence that she had harassed and pointed a loaded gun at

her ex-boyfriend, David Yu. “A permissive inference violates the Due Process

Clause only if the suggested conclusion is not one that reason and common sense

justify in light of the proven facts before the jury.” Francis v. Franklin, 471 U.S.

307, 314-15, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985), citing Ulster County

Court v. Allen, 442 U.S. 140, 157-163, 99 S.Ct. 2213, 2224-2227, 60 L.Ed.2d 777

(1979). In this instance, the evidence showed that Rucker: (1) had been dating

Watson and Yu for an extended period of time when the respective relationships

ended against her wishes; (2) stalked both victims (Yu for approximately two years

and Watson immediately prior to the attempted murder); (3) carried a handgun to

the home of both Yu and Watson; and (4) pointed a loaded handgun at both men.

The suggested conclusion is “one that reason and common sense justify in light of

the proven facts before the jury.” Id.



                                           6
AFFIRMED.




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