NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3809

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UNITED STATES OF AMERICA

v.

VINCENT L. RUCHLEWICZ,

 Appellant

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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

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Submitted Under Third Circuit LAR 34.1(a)

July 16, 2015

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Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.

(Filed: July 17, 2015)

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OPINION

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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.
2

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).
3

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 
4

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).
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III

For the foregoing reasons, we will affirm.