The opinion of the court was delivered by: Marvin E. Aspen, District Judge
MEMORANDUM OPINION AND ORDER
Sidney McCray has filed a notice of appeal from our memorandum opinion and order, entered September 7, 2010 ("Opinion"), denying McCray's petition for a writ of habeas corpus. He seeks a certificate of appealability ("COA"), as well as leave to pursue the appeal in forma pauperis. For the reasons set forth below, we grant the COA as to Claims 8 and 10 but deny it in all other respects. We also grant McCray leave to appeal in forma pauperis, pursuant to Federal Rule of Appellate Procedure 24(a).
In 2003, a jury convicted McCray of first-degree murder, home invasion and armed robbery in connection with the death of Dwayne Hill. See McCray v. Gaetz, No. 10 C 463, 2010 WL 3547983, at *1 (N.D. Ill. Sept. 7, 2010). The Opinion explains the circumstances of McCray's conviction, as well as his appellate and post-conviction proceedings, and we will not recount those details here. (Id. at *1--4.) Presently before us is McCray's request for a COA on the same ten issues raised in his habeas petition.
Pursuant to 28 U.S.C. § 2253(c)(1), a COA is required for an appeal from a final order in a habeas corpus proceeding under 28 U.S.C. §§ 2254 or 2255. See 28 U.S.C. § 2253©. We may grant a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Walker v. O'Brien, 216 F.3d 626, 631--32 (7th Cir. 2000). To make a substantial showing of the denial of a constitutional right where the district court rejected a petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessments of the constitutional claims debatable or wrong," or that "the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603--04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4, 103 S.Ct. 3383, 3395 (1983)). If the district court rejected "a petitioner's claims on procedural grounds without reaching the prisoner's underlying constitutional claim," it should only issue a COA "when the prisoner shows, at least, 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." Id. (emphasis added).
I. Procedurally Defaulted Claims (Claims 1 through 3, 5 and 6)
In the Opinion, we concluded that McCray procedurally defaulted five of his ten claims. McCray, 2010 WL 3547983, at *6--8. Specifically, we held that he defaulted Claims 1 through 3, 5 and 6, precluding our review of those claims on the merits.*fn1 Id. McCray contends that reasonable jurists would debate that ruling.
As with his earlier briefs, McCray concedes that he did not raise Claims 1 through 3*fn2 before the Illinois Supreme Court on direct appeal from his conviction. (COA Applic. at 3--4, 6.) Following the state appellate court's affirmance of his conviction, McCray pursued only one claim in his Petition for Leave to Appeal ("PLA") to the Illinois Supreme Court, concerning the prosecutor's misstatements of law during closing arguments. (Id.); see McCray, 2010 WL 3547983, at *3. McCray, who was represented at the time, simply did not present Claims 1 through 3 to the Illinois Supreme Court for review. McCray, 2010 WL 3547983, at *3, 6.
Although McCray contends that his lawyer's failure to assert additional claims in the PLA constitutes ineffective assistance of counsel, this alleged constitutional violation cannot overcome the procedural default. (COA Applic. at 3); see McCray, 2010 WL 3547983, at *3. As explained in the Opinion, McCray's right to counsel did not extend to the PLA stage but rather was limited to the first level of appeal, his appeal of right. McCray, 2010 WL 3547983, at *3. The Supreme Court and Seventh Circuit have stated explicitly that a petitioner, like McCray, cannot claim ineffective assistance of counsel in a discretionary proceeding, including the PLA stage, where he has no right to counsel. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553 (1991); Anderson v. Cowan, 227 F.3d 893, 900--01 (7th Cir. 2000).
Accordingly, reasonable jurists could not question our conclusion that McCray's procedural default remains unexcused.
McCray raises a new argument in his COA application, however, and essentially claims that he committed no default. McCray asserts that he tried unsuccessfully to present the issues covered in Claims 1 through 3 by filing a supplemental PLA in addition to the PLA his lawyer had filed, which omitted certain claims against his wishes. (COA Applic. at 3--4, 6.) According to McCray, the Illinois Supreme Court denied his request to file a supplemental PLA. (Id.) He cites to several cases holding that a petitioner may fairly present an issue in a pro se submission filed as a supplement to counsel's brief in state court proceedings. (Id.) Despite its intuitive appeal, McCray's argument fails as a practical matter because he never previously mentioned this alleged attempt to file a supplemental PLA addressing Claims 1 through 3. Indeed, McCray made no reference to any such effort in any prior briefs in the record. (See Pet'r Mem. at 73--74, Dkt. No. 1; Pet'r Traverse at 7, Dkt. No. 18.) Nor has McCray otherwise substantiated this claim. For example, he has not provided copies of the alleged supplemental PLA addressing Claims 1 through 3, or the Illinois Supreme Court's order denying him leave to file such a PLA. Under these circumstances, we cannot conclude-nor could any reasonable jurist-that he attempted to pursue these arguments at the PLA stage of his direct appeal. Accordingly, we deny McCray's request for a COA as to Claims 1 through 3.
In Claim 5 of his habeas petition, McCray alleged that his constitutional rights had been violated when the trial court sentenced him under "ILCS 1998 sentencing penology" despite his indictment and conviction "under 1992 sentencing penology." (Pet'r Mem. at 53; see also Pet'r Post-Conv. PLA, Dkt. No. 16-12, Resp.'s Ex. K at 5--6.) We held that McCray had defaulted on this claim because he had framed the issue quite differently in his initial post-conviction petition. (Pet'r Post-Conv. Pet., Dkt. No. 16-8, Resp.'s Ex. G at 12--18); McCray, 2010 WL 3547983, at *6--7. Indeed, at that time, he argued that he should have been tried and sentenced under the 1998 scheme; he then later argued before us that he should have been sentenced under the 1992 scheme because the 1998 scheme was invalid. McCray, ...