10-5176
United States v. Shenghur

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 6th day of April, two thousand twelve.

Present:    JOHN M. WALKER, JR.,
            CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_______________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            v.                                        10-5176-cr

SAYED NOORALISHAH SHENGHUR, AKA AGHA
JAN,

                        Defendant-Appellant.
_______________________________________________

For Appellant:                     Randall D. Unger, Bayside, N.Y.

For Appellee:                      Amie N. Ely, Niketh Velamoor & Jennifer G. Rodgers, Assistant
                                   United States Attorneys (of counsel), for Preet Bharara, United
                                   States Attorney for the Southern District of New York, New York,
                                   N.Y.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Rakoff, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

        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 (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 (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 (“[I]neffective-assistance 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 (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.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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