Penny v. McFadden

Filing 31

ORDER granting 12 Motion for Summary Judgment; denying 17 Motion for Declaratory Judgment; adopting Report and Recommendations re 20 Report and Recommendation. Signed by Honorable Patrick Michael Duffy on 02/28/2017.(adeh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Victor Costellos Penny, #316219,

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Petitioner,
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v.
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Joseph McFadden,
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Respondent.
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____________________________________)

C.A. No.: 2:15-cv-4817-PMD-MGB

ORDER

This matter is before the Court on Petitioner Victor Penny’s objections to United States
Magistrate Judge Mary Gordon Baker’s report and recommendation (“R & R”) (ECF Nos. 29 &
20.). Magistrate Judge Baker recommends the Court grant Respondent Joseph McFadden’s
motion for summary judgment (ECF No. 12), deny Penny’s motion for declaratory judgment
(ECF No. 17), and dismiss this federal habeas case. For the reasons stated herein, the Court
overrules Penny’s objections and disposes of the case in the manner Magistrate Judge Baker
recommends.
STANDARD OF REVIEW
The R & R has no presumptive weight, and the responsibility for making a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This
Court must conduct a de novo review of any portion of the R & R to which a specific objection is
made, and the Court may accept, reject, or modify the Magistrate Judge’s findings and
recommendations in whole or in part. Id. A party’s failure to object is taken as the party’s
agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140 (1985).
Absent a timely, specific objection—or as to those portions of the R & R to which no specific
objection is made—this Court “must ‘only satisfy itself that there is no clear error on the face of

the record in order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
McFadden has moved for summary judgment, and Penny’s declaratory-judgment motion
is in essence one for summary judgment. To grant summary judgment, the Court must find
“there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). The judge is not to
weigh the evidence, but rather must determine if there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). All evidence should be viewed in the light most
favorable to the no-nmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th
Cir. 1990). “[W]here the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, disposition by summary judgment is appropriate.”

Teamsters Joint

Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991).
In applying these standards, the Court is mindful that pro se filings are held to a less
stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978), and that federal district courts are charged with liberally construing pro se filings
to allow the development of a potentially meritorious case, see Hughes v. Rowe, 449 U.S. 5, 9
(1980).
DISCUSSION
Penny spends the bulk of his objections either rehashing the arguments he has previously
presented and baldly disagreeing with Magistrate Judge Baker’s conclusions.

The Court

summarily overrules those objections, as they are not proper. See, e.g., Anderson v. Dobson, 627
F. Supp. 2d 619, 623 (W.D.N.C. 2007) (“An ‘objection’ that does nothing more than state a
disagreement with a magistrate’s suggested resolution, or simply summarizes what has been
presented before, is not an ‘objection’ as that term is used in this context.” (citation and quotation

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marks omitted)). Two objections, however, warrant some discussion. The Court addresses them
seriatim.
First, Penny argues Magistrate Judge Baker failed to address his contention that he did
not intelligently plead guilty. The Court disagrees. A guilty plea is valid when the defendant
enters it voluntarily, knowingly, and intelligently. See Boykin v. Alabama, 395 U.S. 238, 242–43
(1969). The knowledge and intelligence requirements mean that the defendant has “‘a full
understanding of the charges against him and the possible consequences of his plea.’” Meyer v.
Branker, 506 F.3d 358, 366 (4th Cir. 2007) (quoting Brady v. United States, 397 U.S. 742, 749
n.6 (1970)). After reciting these rules in her R & R, Magistrate Judge Baker found that Penny’s
“guilty plea colloquy indicates he had a full understanding of the charges against him as well as
the consequences of his plea.” (R & R, ECF No. 20, at 13.) Thus, Magistrate Judge Baker did
address Penny’s argument about the intelligence requirement.

The Court agrees with her

assessment that the record shows Penny pled guilty intelligently. Thus, the Court overrules
Penny’s objection.
Second, Penny asserts that during the PCR proceedings, both his plea counsel and the
state intentionally misrepresented facts to the PCR court. The Court agrees with McFadden that
those assertions are not properly before this Court. See Fowler v. McKie, No. 0:15-cv-1718TMC-PJG, 2016 WL 2731974, at *12 (D.S.C. Apr. 18, 2016), report and recommendation
adopted, 2016 WL 2647678 (D.S.C. May 10, 2016).

Thus, the Court overrules Penny’s

objection.
Having carefully reviewed the record and the remaining portions of the R & R, the Court
sees no clear errors Magistrate Judge Baker’s analysis. The Court therefore adopts the R & R as
its own opinion.

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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Penny’s motion for declaratory
judgment is DENIED, that McFadden’s motion for summary judgment is GRANTED, and that
Penny’s § 2254 application is DENIED with prejudice. 1
AND IT IS SO ORDERED.

February 28, 2017
Charleston, South Carolina

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1. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines to issue a certificate of
appealability. Penny has not made a substantial showing of a denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when relief is denied on procedural grounds, a
petitioner must establish both that the correctness of the dispositive procedural ruling is debatable, and that the
petition states a debatably valid claim of the denial of a constitutional right).

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