The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Clark Truly, an Illinois state prisoner, seeks a certificate of appealability, which is a prerequisite to any appeal that he may take from this Court's memorandum opinion and order of September 30, 2008  denying his petition for a writ of habeas corpus. Truly also has filed an application to proceed on appeal in forma pauperis , and a motion for appointment of appellate counsel . For the reasons stated below, the request for a certificate of appealability  is granted in part and denied in part, the application to proceed on appeal in forma pauperis  is granted, and the motion for appointment of appellate counsel  is denied without prejudice.
On September 30, 2008, this Court issued a memorandum order and opinion  denying a petition for writ of habeas corpus filed by Petitioner Clark Truly. As explained in detail in the Court's opinion, following a jury trial, Truly was convicted of aggravated battery with a firearm in connection with the shooting of Charles Pinkston. He is serving a sentence of 18 years in prison for that crime.
A. State Court Proceedings
At trial, the State introduced into evidence, without objection, copies of certified convictions previously shown to defense counsel including evidence that, on March 23, 2000, Truly was convicted of possession of a stolen motor vehicle and "aggravated assault of a police officer with a firearm." State v. Truly, Rule 23 Order (Ill. App. Ct. (Aug. 18, 2003) (Ex. A to Ans., at 5-6)). The State informed the jury that it should consider Truly's prior convictions to determine whether or not he was believable. Id. at 6. The trial court instructed the jury that Truly's previous convictions should only be used to determine his credibility and not "as evidence of his guilt of the offense with which he is charged." Id. Truly was found guilty of aggravated battery with a firearm, and the trial court denied his motion for a new trial. Id.
At the sentencing hearing, defense counsel informed the court for the first time that, although Truly had pleaded guilty to "aggravated assault of an officer with a firearm or other dangerous weapon," he did not use a firearm. Rule 23 Order, at 6. Defense counsel clarified that Truly allegedly drove a car at a police officer, but had not been in possession of a gun in that case. Id. The State agreed with defense counsel, stating that Truly drove a car at a police officer who fired in the direction of Truly three times because he felt his life was in danger. Id. at 7. The trial court took all of the evidence on mitigation and aggravation into consideration. Id. The court sentenced Truly to 18 years imprisonment and denied his motion to reconsider his sentence. Id. at 1.
Truly appealed his conviction and sentence. Although he did not raise the issue either at trial or in a post-trial motion, Truly contended on appeal that the Appellate Court should find "plain error" in that (i) the State presented erroneous evidence that he was previously convicted of aggravated assault of a police officer with a firearm when he had actually used a car to commit the offense; and (ii) the trial court considered the use of a firearm in the present offense as an aggravating factor in sentencing. Rule 23 Order, at 8.
On August 18, 2003, the Appellate Court affirmed Truly's conviction and sentence. Rule 23 Order, at 12. The Appellate Court agreed that the trial court erred in allowing the jury to be informed that Truly had been convicted of aggravated assault of a police officer with a firearm when the prior conviction was simply for aggravated assault of a police officer. Id. at 9. The Appellate Court also concluded that the error was "plain" and affected substantial rights under the Fourteenth Amendment. Id. However, the Appellate Court held that (i) Truly did not establish that the error was prejudicial and (ii) even if the prior conviction was used improperly by the jury, there was ample evidence to convict Truly without that conviction. Id. at 9-10. The Appellate Court further found that the misstatement did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Id. at 10. Finally, the Appellate Court held that the trial court did not consider the use of a firearm as an aggravating factor in sentencing in the present case. Id. at 12.*fn1
On July 7, 2004, Truly filed a pro se petition for post-conviction relief in the Cook County Circuit Court. Ex. G to Ans. With the assistance of counsel, Truly subsequently filed an amended post-conviction on September 30, 2004. Ex. H to Ans. In his amended petition, Truly raised several issues: (i) ineffective assistance of trial counsel based on: failure to file a motion to suppress evidence, failure to object to the evidence concerning his prior conviction or comment on the State's closing argument, and filing the motion to reconsider the sentence after filing a notice of appeal; (ii) ineffective assistance of appellate counsel for failure to raise the issue of ineffective assistance of trial counsel or to file a petition seeking certiorari to the United States Supreme Court; (iii) prosecutorial misconduct on the part of the State based on the State's alleged improper closing argument regarding burden of proof; and (iv) the Appellate Court improperly engaged in speculation concerning the absence of prejudice from the presentation of erroneous evidence regarding his prior conviction. Ex. I to Ans., at 2-3.
The Circuit Court found each of Truly's post-conviction claims to be procedurally barred or frivolous and without merit, and thus dismissed Truly's post-conviction petition. Ex. J to Ans. Truly appealed the dismissal of his post-conviction petition. Ex. I to Ans. at 1. The Appellate Court affirmed the denial of post-conviction relief, holding that the Circuit Court properly dismissed Truly's amended post-conviction petition as frivolous and lacking merit. Id. at 11. Truly filed a petition for leave to appeal the judgment to the Illinois Supreme Court, which was denied on January 25, 2006. Ex. O to Ans.
Truly presented three claims for decision in his federal habeas petition. First, Truly contended that the State knowingly used false evidence to obtain a tainted conviction for aggravated battery with a firearm by informing the jury that he had a prior conviction for aggravated assault of a police officer with a firearm, when, in fact, that was false. Second, Truly argued that the state court decision is unreasonably contrary to United States Supreme Court precedent as established in Napue v. Illinois. Third, Truly submitted that trial counsel was ineffective because he failed to object to the introduction of the false conviction presented to the jury.
This Court rejected Truly's first claim for habeas relief because the Illinois Appellate Court's holding that Truly procedurally defaulted his claim that the State knowingly used false evidence to obtain Truly's conviction rested on independent and adequate state grounds. The Court rejected Plaintiff's claim that the State court decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent on similar grounds, concluding that the Illinois Appellate Court considered the appropriate precedent -- Napue v. Illinois, 360 U.S. 264 (1959) -- and correctly found that precedent inapplicable because the underlying claim that the State obtained the conviction through the use of false evidence had been procedurally defaulted. The Court reached the merits of Truly's third claim for ineffective assistance of trial counsel based on counsel's failure to object to the false evidence, but rejected that claim as well on the ground that Truly could not ...