dissenting.
I respectfully dissent from my brother judges in this close case. First, I state my agreement with their conclusion that the state prosecutor was guilty of misconduct in several respects, and that this misconduct constituted an excess of prosecutorial zeal and overreaching.
I agree, moreover, that it is appropriate for us to consider this habeas corpus petition on its merits since the state has not contested the question of exhaustion of state remedy.
I disagree, however, with any intimation that introduction of or reference to evidence about Martin’s generally abusive conduct towards his other child or children constituted an error of which we must take cognizance. An erroneous admission of evidence by a state trial judge in a habeas corpus proceeding is usually not a basis for federal relief. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988). See Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976) (“[Wjhere the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial”). Petitioner is not constitutionally entitled to a perfect or an error-free trial, particularly with regard to evidentiary rulings of the state judge. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Accordingly, while an error was undoubtedly committed in this case, it was not so significant as to require this court to reverse the district court’s decision.
With regard to the admission of evidence regarding other wrongful activity by the petitioner-defendant relating to his charged criminal offenses, I believe the rule is that such evidence may be admissible if probative of “intent, preparation, or plan” on the part of a criminal defendant. See United States v. Gessa, 971 F.2d 1257 (6th Cir.1992). See also Fed.R.Evid. 404(b); Waters v. Kassulke, 916 F.2d 329 (6th Cir.1990). I believe that the questioned testimony of the victim’s adoptive sister about the petitioner-defendant’s abusive conduct towards her was at least arguably admissible. It was not a basis for finding prejudicial error or even prosecu-torial misconduct. This evidence and the prosecutor’s reference to it were not, in my view, a basis for considering the trial fundamentally unfair.
We, therefore, must consider whether the prosecutor’s errors were so egregious and prejudicial that Martin was deprived of a fundamentally fair trial. I am persuaded that the prosecutor’s conduct and activity, although certainly improper and not to be condoned, did not constitute reversible, error under all the circumstances. I would, therefore, affirm Martin’s conviction.