Jacobs v. Miller

SUMMARY ORDER

Petitioner-Appellant Glenford Jacobs (“Petitioner”) was convicted, after a jury trial in the Supreme Court of the State of New York, Kings County, on four counts of criminal sale of a controlled substance. Petitioner now appeals the district court’s (Weinstein, J.) denial of his petition for a writ of habeas corpus. The district court certified one issue for appeal to this Court: whether the state trial court erred in rejecting petitioner’s claims that the state prosecutor’s exercise of peremptory challenges violated the Equal Protection clause. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

We have reviewed the state court proceedings in this case and conclude that some of petitioner’s claims have been procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). We therefore have not reviewed the merits of those claims.

Petitioner has preserved his Batson claim as to one juror struck by the proseeution, Juror # 4. It is, however, apparent from the record that the trial court found, as a matter of fact, that the prosecution’s strike of Juror # 4 was non-discriminatory. See Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir.1997) (per curiam). Under 28 U.S.C. § 2254(e)(1), petitioner must disprove this determination by clear and convincing evidence in order to prevail. See 28 U.S.C. § 2254(e)(1). On the record before us, the petitioner cannot satisfy this burden.

We have considered all of the petitioner’s arguments and find each of them to be without merit. We therefore AFFIRM the judgment of the District Court.