Truskolaski v. State, Case Number: PC-2018-864

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: DAVID B. LEWIS, Presiding Judge
• Citation: 458 P.3d 620
• Parties: Joseph TRUSKOLASKI, Petitioner v. The STATE of Oklahoma, Respondent.
• Docket Number: Case Number: PC-2018-864
• Decision Date: 27 March 2019

458 P.3d 620

Joseph TRUSKOLASKI, Petitioner
v.
The STATE of Oklahoma, Respondent.

Case Number: PC-2018-864

Court of Criminal Appeals of Oklahoma.

Decided: March 27, 2019

DAVID B. LEWIS, Presiding Judge

¶ 1 On August 21, 2018, Petitioner Truskolaski, pro se, appealed to this Court from an order of the District Court of Tulsa County denying his application for post-conviction relief in Tulsa County District Court Case No. CF-2009-3155. He was convicted in that case of one count of manslaughter, and that conviction was affirmed on direct appeal by this Court in Truskolaski v. State, F-2011-0820 (Okla.Cr. August 13, 2013)(unpublished). What makes this case unusual is that Petitioner then filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Oklahoma, without first seeking relief under the Oklahoma Post Conviction Procedure Act. His attempts in federal court were unsuccessful.

¶ 2 On May 17, 2018, Petitioner then filed an application for post-conviction relief in the District Court of Tulsa County claiming ineffective assistance of appellate counsel. In an order entered July 23, 2018, filed July 25, 2018, the District Court of Tulsa County, the Honorable Kelly Greenough, District Judge, denied Truskolaski's application for post-conviction relief. Judge Greenough found that Truskolaski's claims were procedurally barred because, prior to filing his application

458 P.3d 621

for post-conviction relief, he sought and was denied federal habeas relief on two separate occasions. Judge Greenough determined that Truskolaski's claims were not properly presented for review via post-conviction because he failed to establish that the claims could not have been raised on direct appeal or in his federal petition for writ of habeas corpus. Acknowledging that a claim of ineffective assistance of appellate counsel could be raised for the first time in a post-conviction application, the court nonetheless determined that by choosing to pursue federal habeas relief prior to seeking post-conviction relief in the district court, Truskolaski's ineffective assistance of appellate counsel claim was waived.

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