Opinion
Case No. 1:99cv747
April 4, 2001
ORDER
In accordance with the opinion filed this date,
IT IS ORDERED that the report and recommendation of the magistrate judge is ADOPTED AS MODIFIED by this opinion.
IT IS FURTHER ORDERED that the petition for writ of habeas corpus is GRANTED IN PART AND DENIED IN PART. The petition is GRANTED as to Gallego's March 28, 1996 conviction for conspiracy to deliver more than 650 grams of cocaine, and that conviction is hereby vacated. The petition is DENIED as to Gallego's March 28, 1996 conviction for delivery of more than 650 grams of cocaine.
OPINION ADOPTING REPORT AND RECOMMENDATION
This is a habeas corpus action filed by a Michigan state prisoner pursuant to 28 U.S.C. § 2254. The matter presently is before the court on objections filed by both respondent and petitioner to the report and recommendation ("RR") of the magistrate judge recommending that the petition be granted. For the reasons that follow, the RR is accepted and adopted as modified by this opinion.
I. PROCEDURAL BACKGROUND
On May 13, 1993, petitioner Jesus Enrique Gallego was convicted of conspiracy to deliver more than 650 grams of cocaine on or about May 12, 1992, in violation of MICH. COMP. LAWS § 750.157a, and delivery of more than 650 grams of cocaine on or about May 12, 1992, in violation of MICH. COMP. LAWS § 333.7401(2)(a)(i). Petitioner was sentenced to two terms of life imprisonment.
On March 28, 1996, petitioner was again convicted of conspiracy to deliver more than 650 grams of cocaine and delivery of more than 650 grams of cocaine, during the period between October 1991 and April 1992. Petitioner was sentenced to two consecutive life terms.
Petitioner appealed all convictions in the state courts. People v. Gallego, No. 169393, slip op. (Mich.App. Aug. 25, 1995); People v. Gallego, 452 Mich. 863, 550 N.W.2d 792 (1996); People v. Gallego, No. 196252, slip op. (Mich.App. Dec. 9, 1997); People v. Gallego, No. 111294, slip op. (Mich. Sept. 28, 1998). On September 27, 1999, Gallego filed the instant petition for writ of habeas corpus.
In his petition, Gallego raises two claims:
I. THE STATE OF MICHIGAN'S PROSECUTION AND CONVICTION OF PETITIONER
IN CASE # 92-117911-FC SUBSEQUENT TO PROSECUTION AND CONVICTION
IN CASE #92-117835-FC CONSTITUTES MULTIPLE PROSECUTIONS FOR THE SAME OFFENSE, RESULTING IN PETITIONER BEING IN CUSTODY PURSUANT TO CONVICTION IN CASE # 92-117911-FC IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. PETITIONER WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHERE THE TRIAL COURT ADMITTED 404(B) EVIDENCE THAT WAS UNFAIRLY PREJUDICIAL.
Both claims have been exhausted in the state courts.
II. FACTUAL BACKGROUND
Both petitioner and respondent have filed objections to the RR. However, neither has objected to the recitation of facts set forth in the RR. Accordingly, I will adopt the facts as stated in the RR. In order to facilitate discussion of the issues, I substantially repeat those facts here, with certain supplemental evidentiary facts.
A. May 1992 Trial
At his first trial, petitioner was charged with conspiring with Juan Salamanca, on or about May 12, 1992, to deliver 650 grams of cocaine. (T.T. May 10, 1993, 119-21.) The evidence at trial substantially rested on the testimony and cooperation of Aref Nagi. Nagi testified that he began buying and selling cocaine in October 1991. ( Id. at 150-51.) Nagi testified that petitioner was his cocaine supplier and that the two were friends and "business associates" in the "dope business." (T.T. May 10, 1993, 152-57, 201-02; T.T. May 11, 1993, 29.) Nagi testified that he twice had gotten substantial quantities of cocaine from petitioner between October 1991 and April 1992, at which time he was arrested.
Nagi testified as to the nature of his business arrangement with petitioner. He testified that when he purchased cocaine from petitioner, he was not required to pay for the cocaine at the time of delivery. Instead, after obtaining the cocaine from petitioner, he would in turn sell it to Nader Fakhouri. Once Fakhouri sold the cocaine, he would pay Nagi, who would then pay petitioner. (T.T. May 10, 1993, 157-58, 212-13.)
City of Troy Police Officer Keith Frye testified that on April 9, 1992, he followed petitioner to Chicago, where he lost contact with petitioner's vehicle. (T.T. May 11, 1993, 125, 131.) Frye followed Nagi to Chicago three days later. ( Id.) Once in Chicago, petitioner visited Nagi in Nagi's hotel room. ( Id. at 131.) The pair left Chicago "in tandem," with Gallego driving one vehicle and Nagi and his girlfriend in another vehicle. ( Id. at 132.) After reaching the tollway, the two vehicles separated. ( Id.)
On April 16, 1992, Nagi was arrested and, in return for an agreement to be prosecuted by the federal government instead of the State of Michigan, he agreed to cooperate with the authorities. ( Id. at 152-54.) Pursuant to his agreement, Nagi arranged to purchase from petitioner two kilograms of cocaine. ( Id. at 155.) Petitioner told Nagi that he would get the cocaine from Chicago, as he had done on previous occasions. ( Id. at 156.)
On May 12, 1992, Nagi met with petitioner at the Tel-Twelve Mall in Southfield, Michigan to complete their cocaine transaction. Petitioner indicated that the cocaine was going to be delivered by "some people." (T.T. May 10, 1993, 159-60.) Nagi and petitioner were approached by three individuals who spoke with petitioner. One of those individuals was petitioner's alleged co-conspirator, Juan Salamanca. (T.T. May 10, 1993, 161; T.T. May 11, 1993, 35-42, 81-87.) After the conversation, petitioner informed Nagi that the three individuals were the parties who would be delivering the cocaine. (T.T. May 10, 1993, 161-64.)
Nagi and petitioner left the mall and went to a restaurant, where they waited to be contacted on Nagi's beeper, which was being carried by petitioner. (T.T. May 10, 1993, 166-69; T.T. May 11, 1993, 19-21, 31, 88-91.) After being contacted, Nagi and petitioner traveled to the Lincoln Park Shopping Center. (T.T. May 10, 1993, 169-70.) Petitioner again met and spoke with two men and was again told to await further instructions. (T.T. May 10, 1993, 169-71; T.T. May 11, 1993, 48-49, 93-95.) Thereafter, petitioner and Nagi were contacted and told to go to the Target Shopping Center in Dearborn, where Nagi testified he had previously met petitioner to conduct the "same transaction." (T.T. May 10, 1993, 164-72.) Petitioner went into the Target store and returned, telling Nagi, "let's go. I've got the keys." (T.T. May 10, 1993, 173.) Petitioner and Nagi went to a vehicle in the lot and petitioner opened the trunk, revealing five kilograms of cocaine. (T.T. May 10, 1993, 173-75; T.T. May 11, 1993, 52-63, 97-104.) Nagi then signaled police, and petitioner was arrested. ( Id.) During this first trial, the prosecution introduced evidence of drug transactions involving Nagi and petitioner that occurred before May 12, 1992. In addition to Nagi's and Officer Frye's testimony regarding the April trip to Chicago, the prosecutor argued in his closing argument that a continuing conspiracy existed involving Nagi and Fakhouri. (T.T. May 11, 1993, 214-217.) For example, the prosecutor argued the following:
Nagi tells you, "Gallego is my supplier. He sells me cocaine. He sells me cocaine on a front. That is he gives it to me, I pay him back after I sell it. I have other customers down the chain. Fahouri. I give cocaine to Fahouri. I get paid from him after he sells it."
Is there agreement between two or more people to possess this cocaine and sell it?
(T.T. May 11, 1992, 215.) The prosecutor also asked Frye the following question and received the following answer:
Q: Now this case didn't just start on May 12th; is that correct?
A. That is correct.
(T.T. May 11, 1992, 126.)
Petitioner was convicted of conspiracy with intent to distribute more than 650 grams of cocaine on May 12, 1992, and delivery of more than 650 grams of cocaine on May 12, 1992.
B . March 1996 Trial
In March 1996, petitioner was tried on the charges of conspiracy with intent to distribute more than 650 grams of cocaine and delivery of more than 650 grams of cocaine between October 1991 and April 1992. The evidence at this second trial was substantially duplicative of the first trial. Lieutenant Dane Slater of the Troy Police Department testified that in October 1991, the department received information that "an individual in Troy was selling small amounts of cocaine to individuals in the city." (T.T. March 25, 1996, 51-53.) The department began an investigation, subsequently arresting an individual who became a police informant. ( Id. at 53-54, 59-62.) The focus of the investigation then became Nader Fakhouri. ( Id. at 62.)
As part of the investigation, the informant purchased cocaine from Fakhouri on a number of occasions between October 31, 1991 and April 6, 1992. ( Id. at 62, 71, 77.) A search warrant was executed on Fakhouri's residence after the April 6, 1992 transaction, and officers recovered 627.4 grams of cocaine. ( Id. 62, 71, 77-79; T.T. March 26, 1996, 132-35.) Fakhouri was arrested and agreed to cooperate with police, identifying his supplier, Aref Nagi. (T.T. March 25, 1996, 80-83, 152-53.) Nagi was arrested on April 16, 1992, and he also agreed to cooperate with the police. ( Id. at 83-93, 201-04.) Nagi identified petitioner as his supplier. ( Id. at 93-94.)
Fakhouri testified that the cocaine found in his house belonged to him and Aref Nagi, and that the cocaine had been delivered by petitioner and Nagi on April 4, 1992. ( Id. at 144-48.) Fakhouri testified that petitioner had supplied Nagi with several kilos of cocaine, much of which was transported to Fakhouri's house in Nagi's car, in which had been constructed a secret compartment designed for transporting cocaine. (T.T. March 25, 1996, 148, 155-57, 212-19; T.T. March 26, 1996, 8-9, 14-16.) Fakhouri acknowledged that the cocaine found in his safe was possessed with intent to distribute. (T.T. March 25, 1996, 149.)
Aref Nagi also testified at petitioner's second trial. He testified that in approximately October 1991, petitioner began supplying him with cocaine, and that he used this cocaine to supply Fakhouri. Once Fakhouri paid him for the cocaine, Nagi would pay petitioner. ( Id. at 210-12.)
Nagi testified that as part of his agreement to cooperate, he participated with petitioner in another cocaine transaction, which culminated on May 12, 1992. (T.T. March 25, 1996, 234-38; T.T. March 26, 1996, 14-45.) Nagi testified at length regarding the events leading up to the May 12, 1992 transaction, substantially in the same manner as he testified at the May 1993 trial. Sergeant Barry Whiteside also testified that on May 12, 1992, Nagi and petitioner arrived at a Target store in Dearborn. Whiteside testified that after waiting for a period of time outside the store, petitioner entered Target. When petitioner came out of the store, he led Nagi to a vehicle in the parking lot and opened the trunk, revealing to Nagi five bags of cocaine of approximately one kilogram each. (T.T. March 26, 1996, 147-53.) Nagi signaled the police officers who then arrested petitioner. ( Id. at 150.)
On March 28, 1996, petitioner was convicted of conspiracy to deliver more than 650 grams of cocaine between October 1991 and April 1992, as well as delivery of more than 650 grams of cocaine during the same period.
III. DISCUSSION
A. Standard of Review
This court reviews de novo those portions of an RR to which objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court may accept, reject or modify any or all of the magistrate judge's findings or recommendations. Id.
After the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24, 1996), an application for writ of habeas corpus cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) 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; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254 (d).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). The Sixth Circuit has emphasized that this provision marks a "significant change" and prevents the district court from looking to lower federal court decisions in determining whether the state decision is contrary to, or an unreasonable application of, clearly established federal law. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998).
To justify a grant of habeas corpus relief under this provision of the AEDPA, a federal court must find a violation of law "clearly established" by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Recently, the Supreme Court held that a decision of the state court is "contrary to" such clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 413. A state court decision will be deemed an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must also be "unreasonable." Id. Further, the habeas court should not transform the inquiry into a subjective one by inquiring whether all reasonable jurists would agree that the application by the state court was unreasonable. Id. at 410 (disavowing Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997)). Rather, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Williams, 529 U.S. at 410.
Under the AEDPA, a determination of a factual issue made by a state court is presumed to be correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1); see also Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999). The AEDPA requires heightened respect for state factual findings. Herbert, 160 F.3d at 1134.
B . Double Jeopardy
Pursuant to the double jeopardy clause of the Fifth Amendment of the United States Constitution, no person "shall be subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V, cl. 2. Interpreting this amendment, the Supreme Court squarely has held that a single conspiracy may not be divided into two so that multiple punishments can be imposed for a single crime. In Blockburger v. United States, 284 U.S. 299, 302 (1932), the Court reasoned that when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.
Id. The Court reiterated this principle in United States v. Broce, 488 U.S. 563, 570-71 (1989), stating:
In a conspiracy charge, the term "agreement" is all but synonymous with the conspiracy itself, and has great operative force. We held in Braverman v. United States, 317 U.S. 49, 53 (1942), that "[t]he gist of the crime of conspiracy as defined by the statute is the agreement . . . to commit one or more unlawful acts," from which it follows that "the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects." A single agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute multiple conspiracies.Id.
Respondent acknowledges that clearly established Supreme Court law forbids a prosecutor from artificially dividing a single agreement into two agreements and prosecuting each as a separate conspiracy. Indeed, respondent accepts the analysis applied by the magistrate judge through page twelve of the RR. Accordingly, that analysis is adopted.
Respondent contends, however, that the magistrate judge erred by applying de novo review to the state court adjudication. Respondent notes that the RR does not discuss the four-step analysis applied by the state court for determining whether the conspiracies were single or multiple. In addition, respondent asserts that the magistrate judge impermissibly based his conclusion on state law and improperly found that the state court had misapplied its own law.
First, the magistrate judge at no time suggested that he was conducting a de novo review of the facts. Indeed, the magistrate judge correctly recited the proper standard under the AEDPA and specifically concluded that "[t]he decision by the Michigan Court of Appeals that Petitioner was involved in two separate conspiracies was not only an unreasonable determination of the facts in light of the evidence presented, but also contrary to United States Supreme Court authority." RR, October 10, 2000, slip op. at 20.
Respondent is correct, however, in noting that the magistrate judge did not discuss the analysis applied by the Michigan Court of Appeals, except to acknowledge that the test applied by that court, the totality of the circumstances test, was not the subject of clearly established Supreme Court precedent. However, the magistrate judge's role was not to determine precisely how the Michigan Court of Appeals misapplied the four-part test it used. Instead, as the magistrate judge observed, under the AEDPA, the federal court's role is to determine whether the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented" or whether it was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." In performing his role on habeas review, the magistrate judge properly analyzed the existing Supreme Court precedent and the facts of the case in light of that precedent. The magistrate judge concluded that the determination of the Michigan Court of Appeals that two conspiracies existed was unreasonable in light of the facts presented.
Indeed, the magistrate judge expressed his agreement with the totality of the circumstances test, but declined to analyze the question using that test because it had not previously been adopted by the United States Supreme Court.
I agree with the reasoning of the magistrate judge. The facts presented at both conspiracy trials were essentially identical. Despite the fact that the time period for the first conspiracy trial was May 12, 1992, the state introduced at both trials evidence of the entire history of transactions involving Aref Nagi. Moreover, while the first conspiracy charge alleged that petitioner conspired with Juan Salamanca, evidence about Salamanca was minuscule. The prosecutor argued only that he needed to show that petitioner conspired with some other person and that the involvement with Nagi and Fakhouri amply demonstrated conspiracy. Nagi himself at no time testified about a new criminal agreement. Instead, he testified that he had an ongoing agreement with petitioner that he would be fronted quantities of cocaine as they were available and that he would pay for the cocaine when it had been sold. (T.T. May 10, 1993, 52-57; T.T. May 11, 1993, 29.) He testified that he contacted petitioner in the same manner as previously. He testified that he had met with petitioner at Target on previous occasions to perform the "same transaction." (T.T. May 10, 1993, 172, 175; T.T. May 11, 1993, 32-33.) He testified that the cocaine was packaged in the same way. (T.T. May 10, 193, 180-81.) He testified that three of the five kilos involved in the May 12, 1992 transaction were for another individual and that "it was done before." (T.T. May 11, 1993, 33.) He testified that he knew the kilos were for a person who lived in the apartments behind the Target store "[b]ecause we did that previously." (T.T. May 10, 1993, 185.) Moreover, the prosecutor asked and Sergeant Keith Frye answered in the following exchange:
Q Now, this case didn't just start on May 12th; is that correct?
A That is correct.
(T.T. May 11, 1993, 126.)
As the magistrate judge concluded, the previously stated evidence unequivocally reveals not two separate conspiracies, but an intimate involvement between Nagi and petitioner to regularly purchase cocaine from petitioner's supplier and to distribute that product through Fakhouri. No facts introduced at trial suggest independent agreements.
Moreover, in seeking to introduce evidence of the May 12, 1992 transaction in the second prosecution, the prosecutor argued that the evidence was admissible because the May 12, 1992 transaction was "all part of a continuing plan" with the October 1991 to April 4, 1992 conspiracy. (Motion Trans. March 21, 1996, 11.) He argued that the occurrences between the end of April 1992 and May 12, 1992 were "in furtherance of [the charged] conspiratorial relationship. . . ." ( Id. at 12.) He further argued that while petitioner was being charged for a conspiracy that allegedly ended on April 4, 1992, the May 1992 evidence demonstrated that "this conspiratorial relationship continues." ( Id. at 13.) The prosecutor made the same argument to the jury. He argued that petitioner was guilty of conspiring with Aref Nagi to deliver to Nader Fakhouri over 650 grams of cocaine between April of 1992 all the way back to October of 1991 and it began with the delivery of one kilo, one thousand grams in October of 1991.
It didn't culminate in the delivery of two kilos in April of 1992 on the 4th. It culminated in the delivery of five kilos on May 12th. (T.T. March 28, 1996, 31.)
Further, I agree with the magistrate judge that a separate conspiracy could not be created simply because Nagi agreed to cooperate with law enforcement officers. The fact that under Michigan law a government operative may not be considered to be a co-conspirator does not permit the state to deem one conspiracy terminated and another begun solely because the government has "turned" a co-conspirator. The change in Nagi's role did not create a new agreement or impulse by petitioner.
Finally, I reject respondent's objection to the magistrate judge's use and application of state law governing conspiracy. The magistrate judge properly referred to state law in determining the elements of a conspiracy charge in order to determine whether Michigan law recognized the possibility of a "chain conspiracy," in which participants understand they are participating in a joint enterprise but do not know each of the other participants in the conspiracy. The magistrate judge referred to state law only for the purpose of understanding whether the events fall within the law governing conspiracies in Michigan.
Taken together, I am satisfied that the magistrate judge correctly concluded that the state court's finding of two conspiracies was based on an objectively unreasonable determination of the facts in light of the evidence and was an unreasonable application of United States Supreme Court precedent.
Petitioner also objects to the magistrate judge's resolution of the double jeopardy issue. Specifically, petitioner objects to the magistrate judge's determination that the March 28, 1996 conviction for delivery of cocaine did not violate double jeopardy.
Petitioner's objection is without merit. As the magistrate judge observed, it is not unconstitutional to charge a defendant with one conspiracy, as well as the substantive crime or crimes that correlate with the overt acts taken in furtherance of the conspiracy. See, e.g., United States v. Felix, 503 U.S. 378 (1992) (holding that double jeopardy claim must fail because of long established rule that a substantive crime and a conspiracy to commit that crime are not the "same offence" for purposes of double jeopardy); Pinkerton v. United States, 328 U.S. 640 (1946) (charging conspiracy as well as multiple substantive crimes based on the overt acts of the conspiracy). Moreover, each substantive crime committed in the course of the conspiracy is itself punishable and describes discrete criminal activity. Id. Finally, the Supreme Court has expressly declined to accept petitioner's suggestion that any subsequent prosecution was barred because all crimes arising out of the same transaction should have been brought in the same prosecution. See Garrett v. United States, 471 U.S. 773, 790 (1985) (stating that the Court has "steadfastly refused to adopt the `single transaction' view of the Double Jeopardy Clause," as advocated by several justices in Ashe v. Swenson, 397 U.S. 436, 449-60 (1970), and Brown v. Ohio, 432 U.S. 161, 170 (1977)).
In sum, I find no error in the reasoning of the magistrate judge on the issue of double jeopardy. I therefore adopt the reasoning of the magistrate judge in concluding that the March 28, 1996 conspiracy conviction violated double jeopardy and must be vacated. I also adopt the magistrate judge's determination that the March 28, 1996 conviction for delivery of more than 650 grams of cocaine did not violate double jeopardy.
C. Due Process
Petitioner next objects that the magistrate judge failed to discuss his second habeas claim, that is, whether petitioner was denied his due process right to a fair trial by the admission of evidence of other bad acts. While noting the existence of petitioner's second claim of relief, the RR does not discuss the issue.
The admission of evidence ordinarily presents a question of state law that is not subject to relief on habeas review. See Missouri v. Hunter, 459 U.S. 359, 368 (1983); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). However, when the admission of prejudicial evidence rises to manifest error, fatally infecting the trial with fundamental unfairness, the error amounts to a violation of petitioner's due process right to a fair trial under the Fifth and Fourteenth Amendments. See Lisenba v. California, 314 U.S. 219 (1941) (holding that admission of evidence concerning death of former wife in trial for murder of subsequent wife did not violate due process). In Lisenba, the Court recognized that due process may be denied by the admission of certain kinds of evidence. For example, the Court noted that due process would be implicated by the admission of a confession obtained by torture, threats, promises or other coercion, by a trial dominated by mob violence, or by admission of evidence obtained by "fraud, trickery and subornation of perjury. . . ." Id. at 237. The Court held that to constitute a due process violation, the challenged admission of evidence must be "so fundamentally unfair, so contrary to the common concept of ordered liberty, as to amount to a taking of [liberty] without due process of law." Id. at 238. See also Manning v. Rose, 507 F.2d 889, 893 (6th Cir. 1974) (admission of evidence of other bad acts did not violate due process because it was not so prejudicial as to be fundamentally unfair); Koo v. McBride, 124 F.3d 869, 874-75 (7th Cir. 1997) (admission of evidence of other bad acts did not violate defendant's right to due process under the Fifth and Fourteenth Amendments because "[s]omething worse than a garden-variety violation of the standard of 404(b) must be shown to cross the constitutional threshold.") (quoting Watkins v. Meloy, 95 F.3d 4, 7 (7th Cir. 1996)).
In the instant case, no due process violation occurred. Evidence of petitioner's involvement in the May 12, 1992 transaction with Nagi was relevant to understanding the common plan or scheme at issue in the April 4, 1992 transaction. It also was relevant to petitioner's suggestion that he was merely present but uninvolved in illegal conduct with Nagi. In addition, the trial court gave proper limiting instructions to the jury and the prosecutor argued the limited purpose for which the jury could consider the later transaction. Even if the evidence amounted to an improper admission under MICH.R. EVID. 404(b), an issue not subject to this court's habeas review, the admission did not infect the trial with fundamental unfairness implicating due process.
Accordingly, petitioner's second claim for habeas relief is denied.
IV. CONCLUSION
For the foregoing reasons, the report and recommendation of the magistrate judge is ADOPTED AS MODIFIED by this opinion. The petition for writ of habeas corpus is GRANTED IN PART AND DENIED IN PART. The petition is GRANTED as to Gallego's March 28, 1996 conviction for conspiracy to deliver more than 650 grams of cocaine, and that conviction is hereby vacated. The petition is DENIED as to Gallego's March 28, 1996 conviction for delivery of more than 650 grams of cocaine.