The opinion of the court was delivered by: Ursula Ungaro United States District Judge
ORDER ON REPORT OF MAGISTRATE JUDGE
THIS CAUSE is before the Court on Petitioner Fatima Shatat's pro se Motion to Vacate, Set Aside, or Correct Sentence, brought pursuant to 28 U.S.C. § 2255. (D.E. 1.)
THE COURT has reviewed the record as a whole and is otherwise fully advised of the premises.
In the criminal case underlying Petitioner's § 2255 Motion, the Government charged Petitioner, a Jordanian citizen, with multiple counts of wire fraud and food-stamp fraud for her role in a conspiracy to unlawfully exchange food-stamp benefits for cash. Pursuant to a written plea agreement, Petitioner pled guilty to Count One of the Indictment, conspiracy to commit food-stamp fraud in violation of 18 U.S.C. § 371. In exchange for her plea, the Government dismissed the remaining counts of the Indictment.
The written plea agreement contained terms related to Petitioner's sentencing. Petitioner's guideline sentencing range was to be calculated according to the Sentencing Guidelines as applied to a pre-sentence investigation, however the plea agreement notified Petitioner that the Court could depart from the guideline range to impose a sentence up to the statutory maximum of five-years imprisonment. Petitioner further agreed that the amount of actual, probable, or intended loss resulting from her offense was more than $1,000,000 but less than $2,500,000, which increased Petitioner's offense level by 16 points. Petitioner agreed that she was an organizer or leader of a criminal activity that involved five or more participants, and was therefore subject to a 4-point increase in offense level.
Petitioner appeared at the plea hearing without an interpreter. She did not request an interpreter or at any time indicate that she was unable to understand the proceedings. During the lengthy plea colloquy, Petitioner appeared to understand and responded to the Court's questions. Petitioner agreed that she received a copy of the Indictment in English, and had discussed the charges with her attorney. She stated that the understood all the conditions of the plea, the factual proffer, and the consequences of pleading guilty. The Court accepted Petitioner's guilty plea and, at a subsequent hearing, sentenced Petitioner in accordance with the guideline sentence range to 48-months imprisonment. The Court also ordered Petitioner to pay $2,240,493 in restitution, for which she and her co-defendants are jointly and severally liable.
Petitioner now moves the Court to vacate her sentence, arguing that her trial counsel was ineffective in several respects, thereby rendering her guilty plea involuntary. The Court referred the matter to Magistrate Judge Patrick A. White, who issued a Report recommending that Petitioner's Motion be denied and that the case be closed. (D.E. 19.) Petitioner filed timely objections to the Report, and the matter is now ripe for review. The Court reviews the Motion de novo.
Petitioner first objects to the standard of review employed by Judge White. Petitioner claims that because she is a pro se petitioner, "her claims and allegations must be construed in light most favorable to her." (D.E. 20, 1-2.) Petitioner cites no authority in support of this standard, and the Court is aware of no such authority. In accordance with Tannenbaum v. United States, 148 F.3d 1262 (11th Cir. 1998), "pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Id. At 1263. But though Petitioner's pleadings are liberally construed, Petitioner carries the burden of proof in this collateral attack on her conviction. See Johnson v. Zerbst, 304 U.S. 458, 468 (1938) (noting, in review of petition for habeas corpus, that "judgment cannot be lightly set aside by collateral attack" and holding burden of proof to rest upon defendant to demonstrate by preponderance of evidence that he is entitled to relief), abrogated on other grounds by Edwards v. Arizona, 451 U.S. 477 (1981).
Regarding Petitioner's claims of ineffective assistance of counsel, Judge White sets forth the correct standard in his report. Pursuant to Strickland v. Washington,466 U.S. 668 (1984), Petitioner must show that counsel's performance was deficient, and that counsel's deficient performance prejudiced her defense. In the context of sentencing, petitioner must show that, but for counsel's deficient performance, the result of the sentencing proceeding would have been different. Glover v. United States, 531 U.S. 198, 203-04 (2001).
Petitioner also argues that the Government failed to respond to some of her initial claims, thereby forfeiting their arguments in opposition. According to Petitioner, the Magistrate Judge was therefore "required to take [Petitioner's] allegations as true." (D.E. 20, 6.) Under the local rules of this district, failure to respond to a motion may be deemed sufficient cause for granting a motion by default. S.D. Fla. L.R. 7.1(c). The Court is unaware of any authority, however, that requires the Court to do so, and Petitioner cites no support for her proposition. Therefore, even if the Government did not respond to each of Petitioner's claims, Judge White did not err in considering their arguments.
III. Petitioner's Request for Hearing
Petitioner argues that Judge White erred in recommending that the Petition be denied without the benefit of conducting an evidentiary hearing during which the weight and credibility of the evidence could be properly evaluated. In a § 2255 proceeding, the court shall grant a hearing "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) ("A hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required where the petitioner's allegations are affirmatively contradicted by the record.") (quoting Guerra v. United States, 588 F.2d 519 (5th Cir. 1979)). As ...