                                                                 NOT PRECEDENTIAL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.




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