During and after Michael Cheeks’s trial for murder and home invasion, he received letters from his former girlfriend, Maria Brown, who was also a witness at trial. These letters, he argues, demonstrate that the government knew Brown testified falsely during his trial about whether he was living at the home where the death occurred, at the time it occurred. Cheeks’s counsel used the letter received during trial that asked why he came “home” to cross examine Brown; nonetheless, a judge convicted him on all counts after a bench trial. When Cheeks received additional letters after trial, the state court held an additional hearing. Brown testified, and the state court concluded her testimony had not been falsified. Cheeks maintains that the state court’s decision to uphold his convictions do not control here because the state court did not rule on his federal claim that the State knowingly presented false testimony at trial. Testimony about whether he was living at the home had no effect on his first-degree murder conviction, however. The state court transcripts confirm that it rejected Cheeks’s self-defense argument not because he had committed a forcible felony, but because he was the initial aggressor. Cheeks rеceived concurrent sentences for the murder and home invasion counts, and Cheeks points us to no benefit that would come
I. INTRODUCTION
Michael Cheeks, Maria Brown, and their child moved into a home on Hickok Street in University Park, Illinois in November 1995. The home was rented from Brown’s cousin, and only Brown’s name was on the lease. In March 1996, while Brown and Cheeks were still living together, Brown began dating Derrick Peterson without telling Cheeks. On August 30,1996, Brown informed Cheeks that he could no longer live in the Hickok Street home. Nonethelеss, Cheeks was at the home on the morning of September 22, 1996. Brown called Cheeks’s mother later that day and asked her to tell Cheeks not to come to Brown’s home that night. Brown could hear Cheeks in the background during the conversation and heard his mother give him the message.
That night, Brown went to sleep in the Hickok Street residence while Peterson watched television in her bedroom. Peterson, fully clothed, later woke Brown, wearing a nightshirt, to say he thought someone was in the house. Brown got out of bed and encountered Cheeks in the hallway. After Cheeks let go of Brown, she went to her bedroom to call 911. Cheeks came into her bedroom holding a knife and cut the phone cord. When Cheeks saw Peterson, Cheeks said, ‘You don’t have a man in my house, do you? ... Man, get out of my house before I kill you.” Peterson tried to run out of the house but fell in the hallway, and Brown could hear the two men struggling. She followed the men down the hallway and asked Cheeks what he had done. When a motion sensor light came on, she saw a pool of blood. Brown suggested that Peterson sit down because he was losing blood, and Cheeks pushed Peterson to the ground. An officer arrived shortly thereafter and found Cheeks outside with his hand on the door handle of a car’s driver’s side. After the officer told Cheeks to lay down, Cheeks said, “Go ahead and shoot me” to the officer three or four times. Paramedics arrived within a few minutes, but Peterson had passed away. The coroner later concluded that Peterson died from a single stab wound to the chest.
Cheeks was charged with Peterson’s murder and with home invasion in Illinois state court. During the ensuing bench trial, Cheeks received a letter from Brown that said, “I must make you pay for what you did when I take the stand.... I’m still confused about that night you know I really don’t know exactly what I said in my statement ... I held myself responsible for his life so now I have to make sure that you get held responsible for his death instead of me ... when I’m done with you believe me you will never see the light of day if I have anything to do with it and I do cause what the jury is gonna think of you when I leave the stand is that you deserve life.... ” The letter also said, “you know he [Peterson] could have killed you but he didn’t he spared your life ... maybe you was afraid maybe he intimidated by being so much bigger than you and not showing any fear.” The letter also asks, “Why did you come home?” Cheeks’s counsel used the letter to cross examine Brown at trial.
Brown testified at trial and said at one point that Cheeks did not have permission to be in her home the evening of Peterson’s death. At another point, she was asked, “[I]s it fair to say that Michael Cheeks was, in fact, living at the location on Hickok after August 30, 1996?” She responded, “He was there after that but not with my permission, yes.” She also testified that she considered him not living
An investigating officer testified that he found possessions belonging to Cheeks at the Hickok residence and that Cheeks’s identification cards showed he lived at the Hickok address. Law enforcement officials also testified that they saw what appeared to be blood on the waist-high kitchen window, that Cheeks’s hat was found in the sink below the window, and that a box of kitty litter partially blocked the locked back door when they arrived. One officer testified that after receiving his Miranda rights, Cheeks said he had entered through the back door but then had no response to the question of how he could have done so without disturbing the box of kitty litter. At the close of the evidence and after hearing argumеnts from both sides, the judge found Cheeks guilty of murder and home invasion. At the sentencing hearing, the judge stated he had decided to impose a sentence above the statutory minimum because Cheeks was on parole at the time of the offense, had been in and out of the criminal justice system for the previous eleven years, and had a criminal history including stolen cars, drug dealing, and drug possession. The judge sentenced Cheeks to concurrent terms of thirty-five years’ imprisonment on the murder charges and twenty years’ imprisonment for home invasion.
Following the trial, Brown wrote additional letters to Cheeks. In one, she wrоte:
I was advised that was the way to go ... I wanted you to go to [j]ail for my o[w]n personal reasons and who knows maybe if I had told the truth about you living their you wouldn’t have so much time, but I seen a way to get you out of my life and I took it.
In another letter, she wrote:
... Oh and no hard feelings about you not living their you see I wanted you to go to jail and if I had actually let someone know that you was living their you may have not went at least that is what was advised of me the very first night.
She signed this letter, “gotta go ha ha ha ha ha ha ha ha ha ha your grim reaper.”
After receiving these post-trial letters, Cheeks filed a pro se petition in Illinois state court under Illinois’s PosNCоnviction Hearing Act. He argued that his counsel was ineffective for failing to reveal perjury by the State’s key witness and attached copies of the two post-trial letters. An Illinois Circuit Court judge denied the request. Cheeks then appealed, arguing that the trial court should have considered the post-conviction petition as a claim under 735 111. Comp. Stat. 5/2-1401, which provides a statutory means of obtaining relief from certain judgments, including those based on perjured testimony. The Illinois Appellate Court agreed and concluded that Cheeks had stated a claim under that provision.
Illinois v. Cheeks,
Back in the Illinois Circuit Court, Cheeks moved to vacate the judgment pursuant to 735 111. Comp. Stat. 5/2-1401 and again argued that Brown had given false testimony at his trial as evidenced by the letters he had received from her. The parties filed a stipulation that, if called to testify, Brown would testify that the statements made by her in the letters were true. The Circuit Court denied Cheeks’s motion to vacate. After Cheeks moved for reconsideration, the court held a hearing. Brown testified, saying that on the date of
Cheeks then filed a pro se petition for a writ of habeas corpus in federal district court, alleging that the “State knowingly used perjured testimony to obtain [the] conviction.” The district court denied Cheeks’s habeas request and ruled that Cheeks had not demonstrated that the state court’s holding that Brown did not commit perjury was an unreasonable determination of the facts. It concluded that the “trial and appellate courts’ findings that Brown did not commit perjury are at least minimally consistent with the evidence.” It did not obtain the trial court transcripts before making this determination (and it seems to us a difficult determination to make without the transcripts; thеy have been added to the record after argument on appeal). Cheeks appeals the denial of his request for a writ of habeas corpus.
II. ANALYSIS
A. Standard of Review
As a person in custody pursuant to a state court judgment, to be eligible for a writ of habeas corpus Cheeks must demonstrate that he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
see Guest v. McCann,
Section 2254(d) does not control here, though, because, as we said, it only applies to a claim that was “adjudicated on the merits in State court proceedings.”
See
28 U.S.C. § 2254(d);
Canaan v. McBride,
B. Procedural Default
That Cheeks did not raise his current claim in the state court leads to another issue. The State argues that we should not consider his current claim because it has been procedurally defaulted. In his petition for a writ of habeas corpus, Cheeks asserted that the State knowingly used false testimony to obtain his conviction. A prosecutor’s knowing use of false testimony violates the United States Constitution’s due process clause.
United States v. Agurs,
The State maintains that Cheeks should not be allowed to bring this argument in his habeas proceeding because he did not first raise it in the state court. A state petitioner seeking a writ of habeas corpus in federal court must first exhaust the remedies available to him in state court, 28 U.S.C. § 2254(b)(1)(A), “thereby giving the State the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.”
Baldwin v. Reese,
Procedural default, however, does not create an absolute bar to habeas relief in federal court, and it does not implicate the jurisdiction of the federal court.
Lewis,
The district court noted in its disposition that it would not allow the State to belatedly assert a procedural default defense.
See Grigsby,
C. No Effect on Murder Conviction
We have said that a conviction obtained by the knowing use of false testimony should be set aside if there is “ ‘any reаsonable likelihood that the false testimony could have affected the judgment of the [fact-finder].”’
Sckaff v. Snyder,
The State also asserts that we need not reach these arguments, though, if any false testimony regarding whether Cheeks resided at the home would not have affected his murder conviction. Cheeks received a sentence of thirty-five years’ imprisonment for first-degree murder and a concurrent term of twenty years’ imprisonment for home invasion. So, the State, contends, even if Brown’s testimony would cause the home invasion conviction to fall, it had no effect on his murder conviction and no
Cheeks maintains that there is a reasonable likelihood that false testimony from Brown about whether Cheeks lived at the home could have affected his murder conviction, not just his home invasiоn conviction. Under Illinois law, a home invasion conviction requires the government to prove that a person, without authority, entered “the dwelling place of another.” 720 Ill. Comp. Stat. 5/12-11(a). In
Illinois v. Reid,
the Supreme Court of Illinois reasoned that the Illinois legislature had added the words “of another” to the statute and “thus specifically sought to exclude domestic disputes from the reach of the statute.”
If Cheeks had been living at the Hickok Street residence on the night in question, he maintains that under
Reid
he would not be guilty of entering the dwelling place “of another.” We will accept for the sake of argument Cheeks’s contention that the post-trial letters suggest that Brown testified falsely at trial concerning whether Cheeks lived at the residence, and that this testimony could have 'affected his home invasion conviction.
See Illinois v. Delacruz,
Cheeks agrees that whether any false testimony concerning whether he lived at the residence could have affected his first-degree murder conviction is a critical question. We note that some confusion remains as to whether Cheeks was convicted of one or three counts of murder. A grand jury indicted Cheeks on three counts of first-degree murder and two counts of home invasion. One first-degree murder count asserted thаt Cheeks violated 720 111. Comp. Stat. 5/9 — 1(a)(1), which applies when a person performs acts causing death without lawful justification, when “he either intends to kill or do great bodily harm to that individual, or knows that such acts will cause death to that individual or another.” The second first-degree murder count charged him with violating 720 111. Comp. Stat. 5/9-l(a)(2), which applies when the individual “knows that such acts create a strong probability of death or great bodily harm to that individual or another.” The indictment also charged Cheeks with first-degree murder for violating 720 111. Comp. Stat. 5/9 — 1(a)(3),
Nonetheless, Cheeks maintains that his first-degree murder conviction for violating 720 111. Comp. Stat. 5/9 — 1(a)(1) was dependent upon the home invasion conviction and therefore dependent on false testimony Brown might have given concerning whether Cheeks resided at the home. His rationale begins with the Illinois self-defense statute, which provides that use of force in self-defense is not available to a person who “[is] attempting to commit, committing, or escaping after the commission of, a forcible felony.” 720 Ill. Comp. Stat. 5/7-4(a). And home invasion is a forcible felony in Illinois.
Illinois v. Ramey,
The problem for Cheeks is that committing a forcible felony is not the only way to lose a self-defense argument in Illinois, and it is not the way he lost it here. Self-defense is also not available in Illinois when the defendant “initially provokes the use of such force against himself,” unless (1) he reasonably believes he is in imminent danger of death or great bodily harm and has exhausted every other reasonable means of escape; or (2) he withdraws in good faith from the assailant, clearly indicating his desire to withdraw, and the assailant continues to use force. 720 111. Comp. Stat. 5/7-4(c).
The trial court transcripts, which were not in the record when the parties briefed and argued this case, reflect that the trial judge rejected Cheeks’s self-defense argument not because he committed a forcible felony, but rather because he was the initial aggressor. The trial judge explained the rationale for its verdict after hearing all the evidence in the bench trial and stated explicitly: “you were the initial aggressor in all of this. So the self-defense is not available to you.” The judge further elaborated that there was no evidence to sustain a self-defense theory, noting that only Cheeks was armed, that Cheeks had fought with Brown, and that he had threatened to kill her. The judge also said “the evidence hаs been uncontroverted [that] there was no aggressive manner by [Peterson]” and noted that Cheeks had said in a post-arrest statement that he believed Peterson had a weapon, but no other weapon was found in the area and there was no evidence that Peterson was ever armed with anything.
The transcripts make clear that the trial judge’s conclusion that Cheeks had committed home invasion, which happens to be a forcible felony, had no impact on its decision to reject Cheeks’s self-defense argument. Rather, the judge declined to find self-defense because Cheeks was the initial aggressor and no exception applied. Therefore, whether Cheeks resided in the home had no impact on his first-degree murder conviction, and any false testimony regarding whether Cheeks lived in the home (the only false testimony suggested by the letters) had no reasonable likelihood of affecting that conviction.
The concurrent sentence doctrine would not apply if Cheeks had been convicted in federal court. For federal convictions, 18 U.S.C. § 3013 mandates a separate monetary assessment for each count of conviction, and these separate assessments preclude the use of the concurrent sentence doctrine.
See Ray v. United States,
Cheeks does not contest the State’s position that his home invasion conviction carries with it no additional consequences beyond those accompanying his murder conviction. Cheeks’s sentence was not affected, as the judge sentenced him to a term of 35 years for murder to be served concurrently to the 20-year home invasion term, and the сourt made it clear it had decided to sentence above the statutory minimum for murder for factors unrelated to home invasion, including Cheeks’s criminal history.
See United States v. Alanis,
So Cheeks offers us no other reason to review his convictions. A lack of collateral consequences can mean that the Article III case-or-controversy requirement has not been satisfied. Forty years ago, the Supreme Court said in
Benton v. Maryland,
In this case, it is enough to say that testimony Brown gave about whether Cheeks was living with her did not affect Cheeks’s murder conviction and that no other actual or potential consequence has been identified. Moreover, although the State did not assert the concurrent sentence doctrine in response to Cheeks’s one-sentence petition for a writ of habeas corpus, the parties briefed and argued the legal question of whether any false testimony suggested by the letters had a reasonable likelihood of affecting the murder conviction (and the doctrine has been described as one of judicial discretion,
Benton,
III. CONCLUSION
The judgment of the district court is Affirmed.
Notes
. We are mindful that 28 U.S.C. § 2254(b)(3) provides that "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.” As we noted in
Perruquet,
there is a division of authority as to whether section 2254(b)(3) applies to procedural default as well as to exhaustion.
See Perruquet,