United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
habeas case was filed by Petitioner Olivia Floyd under 28
U.S.C. § 2254. Petitioner was convicted of arson of an
insured dwelling, Mich. Comp Laws § 750.76(1)(a), and
second-degree arson, Mich. Comp Laws § 750.73(1), after
a bench trial in the Wayne County Circuit Court. In 2014,
Petitioner was sentenced to two concurrent terms of 4 years
and 3 months to 20 years. She was released on parole on
August 7, 2018 and her period of supervision is currently
scheduled to end on August 7, 2019.
petition raises four claims: (1) Petitioner was denied
effective assistance of counsel when her attorney failed to
ensure Petitioner was evaluated for competency to stand
trial; (2) the trial court abused its discretion by
withdrawing its previous order for a competency evaluation;
(3) the trial court erroneously ordered Petitioner to pay
restitution; and (4) the trial court erred in assessing court
costs against Petitioner. Because review of Petitioner's
competency claim is barred by her failure to preserve that
claim in the trial court, and the Court finds she is not
entitled to relief based on her remaining claims, the habeas
petition is denied. The Court will also deny Petitioner a
certificate of appealability but grant her permission to
proceed on appeal in forma pauperis.
underlying criminal case stems from two fires that occurred
at 9197 Devonshire, in Detroit, Michigan in the early morning
of June 6, 2013. See People v. Floyd, 2015 WL
9488418, at *1 (Mich. Ct. App. Dec. 29, 2015) (per curiam)
(unpublished). Petitioner owned the home located at 9197
Devonshire and had been renting it to her mother, Rita
Johnson, who “maintained rental or personal property
insurance on the contents of the home through Allstate
Insurance Company (“Allstate”).”
Id. That insurance policy covered losses or damage
resulting from theft or fire. It had an effective date of May
2, 2013 and a $50, 000 policy cap for each claim.
trial, the evidence showed Johnson had filed a claim with
Allstate seeking reimbursement for damage purportedly caused
by an earlier theft and by the June 6, 2013 fires.
Id. at *5. Expert witnesses and fire personnel
testified that “the stairway fire in the home was the
result of arson given the odor of gasoline, the unusual burn
pattern, and the absence of any mechanical or electrical
explanation for the fire.” Id. Similarly,
evidence related to the second fire in the home's back
bedroom “indicated a lack of any explanation for its
origin other than an intentional setting.” Id.
Testimony at trial also established that the two fires were
“separate and independent . . . due to the absence of
any trail or indication to link the two events.”
Id. Moreover, personal items, such as photographs,
had been removed from the house just hours before the fires,
creating a “red flag” for fire investigators.
Id. At trial, there was “ample evidence”
showing that Johnson had set the fires, and that Floyd was to
some degree involved.
her conviction and sentencing, Petitioner appealed to the
Michigan Court of Appeals, raising the following claims:
1. The trial court erred by failing to ensure Petitioner
complied with its order referring her for a competency
2. Trial counsel was ineffective for not obtaining an
independent competency examination or persuading the trial
court to secure Petitioner's adherence to its order for a
3. The trial court abused its discretion by withdrawing the
order for a competency evaluation.
4. The trial court erred by ordering Petitioner to pay $7,
058.94 in restitution to Allstate for costs incurred in
investigating the fires and insurance claim.
5. The assessment of $600 in court costs, part of
Petitioner's sentence, should be vacated as those costs
were imposed without statutory authority.
See ECF No. 8-17 PageID.1238-66. The Michigan Court
of Appeals affirmed Petitioner's convictions in an
unpublished opinion but remanded the case for a reassessment
of court costs. Id. Petitioner subsequently filed an
application for leave to appeal her convictions to the
Michigan Supreme Court. That application raised the same
claims that were presented to the Michigan Court of Appeals.
ECF No. 8-18 PageID.1301-51. The Michigan Supreme Court
denied Petitioner's application for leave to appeal,
explaining it was not persuaded that the questions presented
should be reviewed by the Court. People v. Floyd,
885 N.W.2d 252 (Mich. 2016) (table). She now raises the same
claims in her application for habeas relief under 28 U.S.C.
§ 2254. See ECF No. 1 PageID.5-12.