NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 14-3809
______________
UNITED STATES OF AMERICA
v.
VINCENT L. RUCHLEWICZ,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 3-09-cr-00002-001)
District Judge: Hon. Kim R. Gibson
______________
Submitted Under Third Circuit LAR 34.1(a)
July 16, 2015
______________
Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.
(Filed: July 17, 2015)
______________
OPINION
______________
SHWARTZ, Circuit Judge.
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Vincent Ruchlewicz appeals from the District Court’s denial of his motion to
vacate his sentence pursuant to 28 U.S.C. § 2255. He contends that his counsel was
ineffective for failing to argue that the Government violated a Department of Justice
policy that discourages federal prosecutors from initiating criminal cases following a
state prosecution for substantially the same acts and that the Government engaged in
prosecutorial misconduct by pursuing a case that allegedly violated the policy.1 Because
this policy confers no substantive rights, we will affirm.
I
On March 4, 2004, Ruchlewicz went to Lawrence Sisco’s apartment in DuBois,
Pennsylvania, looking for two men. Upon learning that they were not present,
Ruchlewicz pulled out a pistol, pointed it at Sisco, and fired a round into the floor. Local
police subsequently interviewed Ruchlewicz, arrested him, and charged him with
numerous crimes in Pennsylvania state court. He ultimately entered guilty pleas to
attempted aggravated assault and reckless endangerment of another person. Ruchlewicz
also later entered a guilty plea to the Pennsylvania crime of carrying a firearm without a
license. All three of the Pennsylvania crimes to which Ruchlewicz pleaded guilty
concerned the March 4 incident at Sisco’s apartment.
1
Before the District Court, Ruchlewicz claimed only that his counsel was
ineffective for failing to make this argument. On appeal, Ruchlewicz also asserts that a
violation of the Department’s policy evinces prosecutorial misconduct. Because
Ruchlewicz did not make this argument before the District Court, it is waived. See
United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 2013).
2
This incident also led the police to search Ruchlewicz’s home, where they
discovered seven handguns, none of which were used in the assault on Sisco. A federal
grand jury returned an indictment that charged Ruchlewicz with unlawful possession of
two of these handguns, in violation of 18 U.S.C. § 922(g)(1). Ruchlewicz entered a
guilty plea to this offense, and he received a sentence of seventy-two months’
imprisonment.
Ruchlewicz filed a pro se motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, contending that his counsel was ineffective for failing to argue that the federal
prosecution following his Pennsylvania prosecutions violated the Department of Justice’s
so-called Petite Policy, named for Petite v. United States, 361 U.S. 529 (1960), which
generally bars a federal prosecution following a state prosecution for the same acts. The
Magistrate Judge recommended that the District Court deny the motion because counsel
was not ineffective for failing to invoke the Petite Policy, as “it is an internal guideline
for the exercise of prosecutorial discretion, does not create a substantive right for the
defendant which he may enforce, and is not subject to judicial review.” App. 14. The
District Court adopted the Magistrate Judge’s recommendation and denied Ruchlewicz’s
motion to vacate, but issued a certificate of appealability “on the question whether a
3
violation of the Petite [P]olicy gives rise to a legally enforceable claim.” App. 18.
Ruchlewicz appeals. 2
II
The Petite Policy “precludes the initiation or continuation of a federal prosecution,
following a prior state or federal prosecution based on substantially the same act(s) or
transaction(s), absent certain extenuating circumstances.” United States v. Wilson, 413
F.3d 382, 388 n.7 (3d Cir. 2005) (internal quotation marks omitted). Its general bar on
federal prosecutions based on acts that supported an earlier state prosecution is “not
constitutionally mandated” because “the dual sovereignty principle inherent in our federal
system” permits such successive prosecutions by different sovereigns. Rinaldi v. United
States, 434 U.S. 22, 29 (1977) (internal quotation marks omitted). Rather, the policy
guides the internal operations of the Department of Justice concerning when it should
expend its resources to prosecute conduct that has been the subject of a state prosecution.
Such internal “guidelines and policies do not create enforceable rights for criminal
defendants.” Wilson, 413 F.3d at 389. Thus, the Petite Policy grants Ruchlewicz no
enforceable rights, and Ruchlewicz’s trial counsel was not ineffective for failing to argue
that the policy was violated. The District Court therefore properly denied Ruchlewicz’s
§ 2255 motion.
2
The District Court had jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C.
§ 2255, and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the
District Court’s legal conclusions de novo and its factual findings for clear error. United
States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014).
4
III
For the foregoing reasons, we will affirm.
5