UNITED STATES of America, Appellee, v. Sayed Nooralishah SHENGHUR, aka Agha Jan, Defendant-Appellant, 466 F. App'x 61

SUMMARY ORDER Sayed Nooralishah Shenghur appeals from his conviction following a jury trial in district court. We assume the parties’ familiarity with the underlying facts of the case and the issues raised on appeal. “We uphold a district court’s finding of competence [to stand trial] unless that finding is clearly erroneous.” United States v. Gigante, 166 F.3d 75, 83-84 (2d Cir.1999). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

In light of the opinion regarding Shenghur’s competence provided by the government’s expert witness, we are unable to conclude that the district court’s determination that Shenghur was competent to stand trial was clearly erroneous. Furthermore, we decline to rule on Shenghur’s claim that he received ineffective assistance of counsel. See Massaro v.

United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”); see also id. at 505, 123 S.Ct. 1690 (“[I]neffectiveassistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial.”).

While we have “entertained ineffective assistance claims for the first time on direct appeal when their resolution is beyond any doubt or to do so would be in the interest of justice,” United States v. Khedr, 343 F.3d 96, 100 (2d Cir.2003) (internal quotation marks omitted), “this court has expressed a baseline aversion to resolving ineffectiveness claims on direct review,” id. at 99 (internal quotation marks omitted).

Here, we see no reason to deprive the district court of the opportunity to assess the merits of Shenghur’s ineffective assistance claim in the first instance, if such a claim were to be brought on collateral attack under 28 U.S.C. § 2255. See Massaro, 538 U.S. at 506, 123 S.Ct. 1690 (noting that a trial “judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial”).

Accordingly, the judgment of the district court is AFFIRMED, and Shenghur’s claim of ineffective assistance is DISMISSED without prejudice to his raising such a claim in a motion under

Section 2255.