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Floyd v. Brewer

United States District Court, E.D. Michigan, Southern Division

April 12, 2019

OLIVIA FLOYD, Petitioner,
SHAWN BREWER, Respondent.



         This 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.[1]

         The 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.


         Petitioner's underlying criminal case stems from two fires that occurred at 9197 Devonshire, in Detroit, Michigan in the early morning of June 6, 2013.[2] 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 Dec. 29, 2015) (per curiam) (unpublished).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. Id.

         At 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.

         Following 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 evaluation.
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 competency examination.
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.

         STANDARD ...

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