                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                                May 2, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
JOSEPH TRUSKOLASKI,

      Petitioner - Appellant,

v.                                                            No. 17-5119
                                                 (D.C. No. 4:13-CV-00610-CVE-FHM)
JOE M. ALLBAUGH, Director,                                    (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
                 _________________________________

       Joseph Truskolaski, an Oklahoma prisoner proceeding pro se, seeks to appeal the

district court’s dismissal of his Fed. R. Civ. P. 60(b) motion. The district court dismissed

the motion as an unauthorized successive application for a writ of habeas corpus. We

deny a certificate of appealability (COA) and dismiss this proceeding.

       In 2011, an Oklahoma jury convicted Mr. Truskolaski of first-degree manslaughter

and he was sentenced to 35 years’ imprisonment. The Oklahoma Court of Criminal

Appeals (OCCA) affirmed the trial court’s judgment and sentence.




       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       In 2013, Mr. Truskolaski filed his application for a writ of habeas corpus under

28 U.S.C. § 2254. Two of his claims are relevant to this appeal: that “[p]rosecutorial

misconduct deprived [him] of [a] fair trial,” and that “the trial Court abused [its]

discretion by not granting [a] mistrial when the prosecutor repeatedly failed to comply

with [its notice under Burks v. State, 594 P.2d 771, 774-75 (Okla. Crim. App. 1979),

overruled in part on other grounds by Jones v. State, 772 P.2d 922, 925 (Okla. Crim.

App. 1989)]1 and prior ruling(s) of the Court concerning that notice.” R., Vol. I at 8, 22.

The district court denied the application in 2016. Mr. Truskolaski did not appeal from

the denial.

       In 2017, Mr. Truskolaski filed his Rule 60(b) motion. The motion raised two

arguments: (1) that both the OCCA and the federal habeas court had failed to address his

claim “that he was denied [a] fair sentencing proceeding due to the prosecutor’s failure to

comply with [its] own [Burks notice],” and (2) that evidence admitted at his trial in

violation of the Burks notice deprived him of due process. Id. at 190. The district court

concluded that it had previously considered both Mr. Truskolaski’s prosecutorial

misconduct and mistrial claims, his Rule 60(b) motion merely sought to revisit the merits

of its denial of those claims, and the motion should therefore be treated as a successive

habeas application. Because Mr. Truskolaski had not obtained authorization from this

court to file a successive habeas application, the district court dismissed the motion

       1
        Burks requires the state to provide the defendant with notice of other crimes
evidence it plans to introduce at trial. See Hale v. Gibson, 227 F.3d 1298, 1321 (10th Cir.
2000). “[T]he purpose of Burks notice is to ensure that the defendant is not surprised by
the admission of other crimes evidence, and to allow the defendant time to be heard on
the other crimes evidence before it is presented to the jury.” Id.
                                              2
without prejudice for lack of jurisdiction. On limited remand, the district court later

denied Mr. Truskolaski a COA.

       Mr. Truskolaski must obtain a COA to pursue an appeal. See 28 U.S.C.

§ 2253(c)(1)(A). Because the district court’s ruling rests on procedural grounds, he must

show both “that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

       “[A] 60(b) motion is a second or successive petition if it in substance or effect

asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction.”

Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). But “it is a ‘true’ 60(b) motion

if it . . . challenges a defect in the integrity of the federal habeas proceeding, provided that

such a challenge does not itself lead inextricably to a merits-based attack on the

disposition of a prior habeas petition.” Id. at 1215-16. Mr. Truskolaski contends that a

defect in the integrity of his habeas proceeding occurred when the district court failed to

address his contention that he had been denied a fair sentencing determination. He

complains that the district court determined only that his trial was not fundamentally

unfair, and failed to make a similar finding concerning his sentence.

       On the surface, this claim would appear to present a “true” 60(b) claim. See

Spitznas, 464 F.3d at 1225 (“Mr. Spitnzas’s contention that the district court failed to

consider one of his habeas claims represents a ‘true’ 60(b) claim. It asserts a defect in the

integrity of the federal habeas proceedings.”). But on closer inspection, we are confident

                                               3
that what Mr. Truskolaski really seeks is to assert a new federal basis for relief from his

conviction. The bulk of his state and federal pleadings addressed the effect of the alleged

Burks errors on his trial and contained only scattered, cursory references to a “fair trial

and a fair sentencing.” It was not until his federal habeas reply brief that he began to

advance an argument why the trial errors he complained of in his Burks-related issues

might have had an impact on the jury’s recommended sentence. Even in the reply brief,

however, he only presented generalized allegations about his sentence and did not truly

present a discrete claim concerning this issue.

       In addition, Burks, which forms the lynchpin of his argument, was concerned with

the effect of uncharged criminal conduct on the defendant’s conviction at trial. See

Burks, 594 P.2d at 774-75. An argument for deprivation of due process at sentencing

based on the concerns expressed in Burks required more specificity, clarity and

explanation than Mr. Truskolaski devoted to this issue. Cf. Prendergast v. Clements,

699 F.3d 1182, 1184 (10th Cir. 2012) (stating petitioner must present the substance of his

claim to the state courts “in a manner sufficient to put the courts on notice of the federal

constitutional claim”). Thus, his Rule 60(b) motion represented an attempt to present a

new sentencing-related claim. Reasonable jurists could not debate the district court’s

procedural decision to treat this claim as a second or successive claim.

       Reasonable jurists also could not debate the district court’s determination that the

remainder of Mr. Truskolaski’s Rule 60(b) motion in substance or effect asserts or

reasserts a federal basis for relief from his underlying conviction, and is therefore an

unauthorized second-or-successive application. See Spitznas, 464 F.3d at 1215. Without

                                              4
authorization, the district court had no jurisdiction to consider the Rule 60(b) motion and

appropriately dismissed it. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

       We deny a COA and dismiss this proceeding. We grant Mr. Truskolaski’s motion

to proceed in forma pauperis.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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