REPORT AND RECOMMENDATION ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (#18)
I. INTRODUCTION
Markendy Jean petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 for alleged violations of his constitutional rights. (#1.) In 2007, a jury in the Middlesex Superior Court convicted Jean of second degree murder, carrying a firearm without a license, and possession of ammunition without a license. (#1 at 1.) Jean bases his habeas petition on four grounds: (1) the prosecutor improperly exercised peremptory challenges to exclude minority jurors; (2) the trial court did not give a proper jury instruction on cross-racial identification; (3) the courtroom was improperly closed during jury selection; and (4) trial counsel was ineffective based on his failure to object to the closed courtroom. (#1 at 5-10.) Respondent has moved for dismissal based on Jean's failure to exhaust state remedies with respect to the first two grounds above, the peremptory challenge and jury instruction claims. (#18 at 9.)
II. PROCEDURAL BACKGROUND
After his conviction in 2007, Jean appealed to the Massachusetts Appeals Court