204 F.3d 964 (9th Cir. 2000), 98-17223, Bains v. Gomez

Docket Nº:98-17223
Citation:204 F.3d 964
Party Name:SURINDER BAINS, Petitioner-Appellant, v. GOMEZ, Director, STEVE CAMBRA; JAMES H., Respondents-Appellees.
Case Date:March 02, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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204 F.3d 964 (9th Cir. 2000)

SURINDER BAINS, Petitioner-Appellant,


GOMEZ, Director, STEVE CAMBRA; JAMES H., Respondents-Appellees.

No. 98-17223

United States Court of Appeals, Ninth Circuit

March 2, 2000

Argued and Submitted September 15, 1999

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[Copyrighted Material Omitted]

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COUNSEL: Clifford Gardner, Gardner & Derham, San Francisco, California, for the petitioner-appellant.

Herbert F. Wilkinson, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Fern M. Smith, District Judge, Presiding. D.C. No. CV-97-02906-FMS

Before: Herbert Y.C. Choy, William C. Canby, and Barry G. Silverman, Circuit Judges.

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Opinion By Judge Choy; Concurrence By Judge Silverman; Dissent By Judge Canby

CHOY, Circuit Judge:

California state prisoner Surinder Bains ("Bains") appeals from the district court's denial of his habeas corpus petition. Having been convicted of first degree murder with the attendant special circumstance that the murder had been committed after lying in wait, Bains filed his petition alleging violations of his due process, equal protection, Sixth Amendment, and Fifth Amendment rights. For the reasons below, we affirm the district court's decision.

Factual and Procedural Background

In 1982, Bains's sister Balbinder Bains traveled to India in order to find a husband of the Sikh faith. Eventually, Bain's family and the family of Gurmeet Shergill ("Shergill") arranged for Bains's sister and Shergill to be married. Although Shergill initially expressed some reluctance to marry Bains's sister, he ultimately agreed to do so, and the two were married in India before returning to the United States. In 1983, Bain's sister gave birth to a son, Victor.

In 1984, Shergill started dating a different woman, and soon thereafter, he separated from Bain's sister. In 1986, he and Bain's sister were divorced. During this time, Shergill moved into a studio apartment, the location of which he tried to keep a secret from the Bains family. Despite Shergill's efforts to avoid the Bains family, they located his studio apartment and made several uninvited visits during which they threatened to harm Shergill (both before and after he obtained a divorce from Bains's sister). In early 1990, Shergill retained an attorney in order to resolve a dispute with Bains's sister over child support, child custody, and the ownership of a house in Sacramento.

In August of 1990, Shergill traveled back to India. On September 1, 1990, he telephoned his son from there. The next day, having discovered Shergill's whereabouts, wanting to find out whether Shergill had traveled to India in order to find a new wife, and hoping to renew her relationship with Shergill, Bains's sister visited Jaswinder Singh ("Singh"), Shergill's childhood friend. During the visit, Bains's sister mentioned to Singh that Bains had said that Shergill might be killed if he were to remarry.

On September 12, 1990, while Shergill was still in India, a resident of Shergill's apartment complex saw a man sitting in a car that was parked in her parking stall, which was located directly behind Shergill's stall. The resident asked the man to move his car out of her parking stall, and the man then drove away. The description of the man matched that of Rafael Hidalgo ("Hidalgo"), the man who ultimately would be convicted of murdering Shergill.

On September 13, 1990, while Shergill was still in India, another resident of Shergill's apartment complex saw a man standing in the carport and bending down to look at car license plates. The man seemed to be most interested in a red Acura, the same type of car that Shergill drove. The description of the man and his car matched that of Hidalgo and his car, although with slight differences.

Later that evening, at 7:32 p.m., according to the phone records from Shergill's apartment, someone made a one minute phone call to Bains's house from the phone inside Shergill's apartment. At that moment, Shergill, having just returned from India, was at the airport. Scratch marks on the doorknob of Shergill's apartment door were consistent with those that would have been left if someone had picked the lock.

On September 18, 1990, another resident of Shergill's apartment complex saw an unfamiliar man standing near the door of Shergill's apartment. Upon noticing her, the man quickly walked away. The description of the man matched that of Hidalgo.

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At 8 p.m., on September 23, 1990, neighbors of Shergill, a husband and his wife, heard scuffling, loud talking, and then a sudden scream originating from the carport area. They then saw three men running from the carport area. The description of one of the men matched that of Hidalgo. After seeing the three men flee, the husband immediately telephoned for emergency assistance and then went to investigate what had happened. He found Shergill lying on the ground and covered in what seemed to be blood. Shergill said that he had not been robbed and then mumbled something about three strangers.

During the same period of time, two other neighbors of Shergill heard a few screams and then saw three men leaving the carport area. The description of one of the men matched that of Hidalgo. Moreover, another neighbor also heard several screams and then saw at least two men fleeing the carport area. At least one man entered a car, the description of which matched that of Hidalgo's car.

By the time the police arrived, Shergill was unconscious, and about an hour later, he died. The autopsy of Shergill's corpse revealed a cut and four blunt traumas to his head, and two deep stab wounds in his chest. Shergill's hands and forearms had defensive-type wounds on them.

The police investigation of the crime scene recovered, among other things, a knife and a hammer, both of which could have inflicted the wounds suffered by Shergill. Although the two possible murder weapons did not have any usable fingerprints on them, the driver's door frame and window of Shergill's car did have Hidalgo's fingerprints on them. Moreover, tire tracks found near the crime scene matched those of Hidalgo's wife's car. Furthermore, Hidalgo's wife's car had several blood stains inside it, although none of the blood found matched that of either Shergill or Hidalgo.

On July 31, 1991, the police searched Bains's residence pursuant to a search warrant. They located, among other things, two phone ledgers containing the phone numbers for Hidalgo's home and office and his twin brother's home. They also found evidence of several phone calls: calls between Bains's residence and workplace and the homes of Hidalgo and his twin brother; calls from Bains's residence to Shergill's apartment; and of particular note, as mentioned above, a call from Shergill's apartment to Bains's residence at a time when Shergill was still at the airport. Moreover, the police uncovered a check for $200 that had been dated July of 1990, signed by Bains's wife, and deposited by Hidalgo.

Later, after approaching Hidalgo, but before placing him in custody, the police permitted him to call his home. Without letting Hidalgo know, the police recorded his phone call. During the phone call, Hidalgo said, "The person where we got the $200, tell them you don't know that person."

On the same day that the police searched Bains's residence, they arrived at Bains's workplace to ask him a few questions. Bains and the police then traveled to the police station and entered an unlocked interview room.1 Once there, the police deceitfully told Bains that Hidalgo, upon being interviewed, had implicated Bains in the murder of Shergill. The police (three police officers and one polygraph examiner) then continued to question Bains for about six hours. Despite his eventual requests to speak with a lawyer and with his wife and to leave the police station, the police did not read Bains his

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Miranda rights until about four hours had passed, and they did not permit him at any time either to leave or to make any phone calls.

When he was being interviewed, Bains first claimed that he had been in contact with Hidalgo only while working overtime with him at the Maxim Corporation. Bains also originally claimed that he did not know Hidalgo's family or their phone numbers and that he had never loaned any money to Hidalgo. However, Bains later admitted several facts: he had spoken to Hidalgo after leaving the Maxim Corporation because Hidalgo had been looking for a new job; he actually did know Hidalgo's twin brother and his home phone number and possibly Hidalgo's home phone number; and he had met with Hidalgo recently when Hidalgo had shown up at Bains's new place of employment in order to fill out a job application. Ultimately, Bains admitted that he and Hidalgo's twin brother were friends and that he had both brothers' home phone numbers. Yet, Bains still refused to admit that he had spoken with Hidalgo during the week before the murder of Shergill or that he had any idea why Hidalgo had implicated him in the murder of Shergill.

In addition, Bains made statements about his family being upset over the current situation between Shergill and Bains's sister and about his family's attempts, including his own attempts, to speak with Shergill and Shergill's family about the current situation between Shergill and Bains's sister. Bains also made several statements about the strength of his Sikh beliefs and his duty to support his sister after her divorce. Bains seemed to say at first that he thought that Shergill had been murdered because of the divorce and that he did not know and had never asked how or where Shergill had been murdered. Yet, Bains later admitted to knowing where the murder had occurred.

Quite significantly, Bains made all of these statements before agreeing to be subjected to a...

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