                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 05-3372

M ICHAEL C HEEKS,
                                                Petitioner-Appellant,
                                  v.

D ONALD G AETZ,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 1:05-CV-01354—Suzanne B. Conlon, Judge.



     A RGUED S EPTEMBER 11, 2006—D ECIDED JULY 7, 2009




 Before R IPPLE, K ANNE, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. During and after Michael
Cheeks’s trial for murder and home invasion, he re-
ceived 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 oc-
curred. Cheeks’s counsel used the letter received
2                                               No. 05-3372

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 addi-
tional hearing. Brown testified, and the state court con-
cluded 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 received concurrent sentences for the murder
and home invasion counts, and Cheeks points us to no
benefit that would come from reviewing only his home
invasion conviction. We therefore deny his petition for
a writ of habeas corpus.


                   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
No. 05-3372                                              3

home. Nonetheless, Cheeks was at the home on the morn-
ing 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 bed-
room. 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 strug-
gling. 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. Paramed-
ics 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.
4                                                No. 05-3372

   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 state-
ment . . . 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 at the house after August 30, though she
acknowledged that she had not had him removed when
he subsequently came back. In response to the question,
“And at that time Michael Cheeks was still living in
your house on September 21, 1996; is that correct?”, Brown
answered, “He was still there.”
No. 05-3372                                              5

   An investigating officer testified that he found posses-
sions 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 arguments 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 wrote:
   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.
6                                                No. 05-3372

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 Post-
Conviction 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 re-
quest. Cheeks then appealed, arguing that the trial
court should have considered the post-conviction
petition as a claim under 735 Ill. 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, 742 N.E.2d 915, 922 (Ill. App.
Ct. 2001).
  Back in the Illinois Circuit Court, Cheeks moved to
vacate the judgment pursuant to 735 Ill. Comp. Stat. 5/2-
1401 and again argued that Brown had given false testi-
mony at his trial as evidenced by the letters he had re-
ceived 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
No. 05-3372                                              7

denied Cheeks’s motion to vacate. After Cheeks moved for
reconsideration, the court held a hearing. Brown testified,
saying that on the date of the incident, Cheeks lived with
her “on a part time basis” and “was free to come and go
as he pleased.” The Circuit Court denied the motion
for reconsideration, concluding that the position Brown
took at the hearing as to whether Cheeks lived at the
residence on the date of Peterson’s death was “yes and no,
which is pretty much the position she took during the
course of the trial.” Cheeks appealed, and the Illinois
Appellate Court affirmed, saying that Cheeks had “not
proved by clear and convincing evidence that Brown’s
testimony was perjured.” It noted that Brown testified at
trial both that she did and did not consider Cheeks to
live at the Hickok residence between August 30, 1996 and
September 23, 1996. And, said the Appellate Court, “she
testified to the same at the section 2-1401 hearing.” In
addition, the Appellate Court ruled that the post-trial
letters contained evidence that was cumulative to that
presented at trial since the letter received during trial
contained the statement, “why did you come home,” and
Cheeks used this statement as a basis for extensive
cross examination regarding whether Cheeks lived at the
residence on the night of Peterson’s death. The court
therefore affirmed the Circuit Court’s denial of Cheeks’s
motion to vacate the judgment. The Supreme Court of
Illinois denied leave to appeal.
  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] con-
viction.” The district court denied Cheeks’s habeas
request and ruled that Cheeks had not demonstrated
8                                               No. 05-3372

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 deter-
mination (and it seems to us a difficult determination
to make without the transcripts; they 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 judg-
ment, 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, 474 F.3d 926, 931
(7th Cir. 2007). When a habeas petitioner’s claim was
“adjudicated on the merits in State court proceed-
ings,” section 2254(d) of the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA) provides that
a federal court may grant a writ of habeas corpus only if:
(1) the state court’s adjudication of the claim was con-
trary to, or an unreasonable application of, federal law as
determined by the Supreme Court of the United States,
28 U.S.C. § 2254(d)(1), or (2) the state court’s decision
was based on an unreasonable determination of the facts
in light of the evidence presented. 28 U.S.C. § 2254(d)(2).
No. 05-3372                                             9

  Section 2254(d) does not control here, though, because,
as we said, it only applies to a claim that was “ad-
judicated on the merits in State court proceedings.” See
28 U.S.C. § 2254(d); Canaan v. McBride, 395 F.3d 376,
382 (7th Cir. 2005). Cheeks did not present to the state
court his current claim that the government knowingly
used false testimony against him, and the state court
never ruled on this claim. As a result, this claim was not
“adjudicated on the merits in State court proceedings” for
purposes of § 2254(d). Therefore, we use here the
general standard set forth in 28 U.S.C. § 2243, which
requires us to “dispose of the matter as law and justice
require.” See Guest, 474 at 931; Canaan, 395 F.3d at 382;
Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000).


 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 prosecu-
tor’s knowing use of false testimony violates the
United States Constitution’s due process clause. United
States v. Agurs, 427 U.S. 97, 103 & n.8 (1976); Pyle v.
Kansas, 317 U.S. 213, 216 (1942); Shasteen v. Saver, 252
F.3d 929, 933 (7th Cir. 2001). A witness’s testimony need
not have been “knowingly false (and hence perjury)” to
succeed on such a claim; rather, a prosecutor’s knowing
use of false testimony is enough to infringe upon a defen-
10                                                No. 05-3372

dant’s right to due process. Shasteen, 252 F.3d at 933
(quoting United States v. Boyd, 55 F.3d 239, 243 (7th Cir.
1995)).
  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, 541 U.S. 27, 29 (2004) (citations omitted). To
afford the State this opportunity, the prisoner should
fairly present his federal claim to each appropriate state
court before seeking relief in federal court. Id.; Perruquet v.
Briley, 390 F.3d 505, 513 (7th Cir. 2004). “A habeas peti-
tioner who has exhausted his state court remedies with-
out properly asserting his federal claim at each level of
state court review has procedurally defaulted that claim.”
Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Al-
though Cheeks raised a perjury claim to the state court,
he agrees that he did not assert a claim in the state pro-
ceedings that the State knowingly used false testimony
in his trial. As a result, he has procedurally defaulted
his current claim.
  Procedural default, however, does not create an abso-
lute bar to habeas relief in federal court, and it does not
implicate the jurisdiction of the federal court. Lewis, 390
F.3d at 1029; Perruquet, 390 F.3d at 514. Rather, procedural
default is an affirmative defense. Grigsby v. Cotton, 456
No. 05-3372                                                11

F.3d 727, 731 (7th Cir. 2006); Lewis, 390 F.3d at 1020. “[T]he
decision whether to assert an affirmative defense like
procedural default lies with the Illinois Attorney General
in the first instance . . . and in the ordinary course of
events, her failure to raise the defense in a timely manner
will result in a forfeiture.” See Perruquet, 390 F.3d at 519.
When the State forfeits the procedural default defense,
“the decision whether to allow the State to interpose the
defense somewhat belatedly [is] one committed to the
district court’s sound discretion.” Lewis, 390 F.3d at 1029.
  The district court noted in its disposition that it
would not allow the State to belatedly assert a procedural
default defense. See Grigsby, 456 F.3d at 731 (declining
to enforce procedural default when untimeliness should
have been clear to the State). We agree with Cheeks that
at the least, the State forfeited a procedural default
defense in this case by not timely asserting it before the
district court. In defense of its failure to raise procedural
default in its response to Cheeks’s petition, the State
explains that it assumed Cheeks’s federal petition
raised the same claim he had asserted in state court. But
Cheeks had argued to the state court that Brown’s testi-
mony had been perjured, and in ruling against that
claim, the Illinois Appellate Court specifically wrote that
“Cheeks did not assert that the State knowingly used
perjured testimony from Brown.” In his federal habeas
petition, Cheeks asserted that the “State knowingly used
perjured testimony” to obtain his conviction, the same
language the state court clearly stated Cheeks had not
asserted to it. Moreover, the State’s answer to Cheeks’s
habeas petition in the federal district court set forth
12                                                   No. 05-3372

the proper federal constitutional standard for the claim
Cheeks raised in his habeas petition, which is a different
standard than for the perjury claim he pressed in the
state court. See Shasteen, 252 F.3d at 933. We will not
disturb the district court’s determination that the proce-
dural default should not be enforced. See also Torzala v.
United States, 545 F.3d 517, 522 (7th Cir. 2008) (declining
to enforce procedural default when claim ultimately
had no merit); Buggs v. United States, 153 F.3d 439, 444
(7th Cir. 1998) (same).1


    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 reasonable likelihood that the false testi-
mony could have affected the judgment of the [fact-
finder].’ ” Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir. 1999)
(quoting Agurs, 427 U.S. at 103). Cheeks contends that the
State knowingly used false testimony from Brown at trial



1
   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 require-
ment 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, 390 F.3d at 515-16
(collecting cases). We declined to take a position on that
issue then and do not do so here as well. See id.; cf. 28 U.S.C.
§ 2254(b)(2).
No. 05-3372                                               13

about whether Cheeks was living at the Hickok Street
dwelling on the night of Peterson’s death, and that such
testimony affected his murder and home invasion convic-
tions. The State has several responses. It maintains that the
statement in one of the letters, “if I had actually let some-
one know that you was living their [sic],” undercuts any
suggestion that the State knew about any false testimony
on Brown’s part and that no evidence of the State’s knowl-
edge exists. It stresses that the state court has already
examined the post-trial letters and conducted an additional
hearing and rejected Cheeks’s argument that they proved
Brown’s testimony was falsified. The State also emphasizes
that the state appellate court concluded that the post-trial
letters “would serve as evidence cumulative to the trial
letters,” suggesting there is not any reasonable likelihood
that the result would have been different.
  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 sen-
tence of thirty-five years’ imprisonment for first-degree
murder and a concurrent term of twenty years’ imprison-
ment for home invasion. So, the State, contends, even if
Brown’s testimony would cause the home invasion con-
viction to fall, it had no effect on his murder conviction
and no effect on his sentence since his terms were
imposed concurrently.
  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 convic-
14                                              No. 05-3372

tion, not just his home invasion 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.”
688 N.E.2d 1156, 1165 (Ill. 1997). The Reid court concluded
that the defendant did not commit the offense of home
invasion when he entered his own apartment, even though
an order prohibited him from being there. Id. (After the
decision in Reid, the Illinois legislature amended the
statute. Now, the “dwelling place of another” for pur-
poses of the home invasion statute “includes a
dwelling place where the defendant maintains a tenancy
interest but from which the defendant has been barred
by a divorce decree, judgment for a dissolution of mar-
riage, order of protection, or other court order.” 720 Ill.
Comp. Stat. 5/12-11(d). No court order barred Cheeks’s
presence at the Hickok Street residence.)
   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, 817 N.E.2d 191, 198-99 (Ill. App. Ct.
2004) (defendant did not enter dwelling place of another
No. 05-3372                                               15

where he resided at dwelling under informal arrange-
ment); Illinois v. Taylor, 742 N.E.2d 357, 365 (Ill. App. Ct.
2000) (defendant did not enter dwelling place of another
where he had permission to be in apartment on date in
question and had been staying there “a while”). But see
Illinois v. Howard, 870 N.E.2d 959 (Ill. App. Ct. 2007)
(stating that defendant cannot be convicted of home
invasion unless he has both a tenancy interest and a
possessory interest in the dwelling place, and that defen-
dant had no tenancy interest because he had no legal
title to the premises).
  Cheeks agrees that whether any false testimony con-
cerning 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 that Cheeks
violated 720 Ill. 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 Ill. Comp. Stat. 5/9-1(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 Ill.
Comp. Stat. 5/9-1(a)(3), which applies when a person
16                                                No. 05-3372

causes death while attempting or committing a forcible
felony. After the bench trial, the trial judge found Cheeks
guilty on all “counts.” The judgment, however, reflects
a conviction only for one count of first-degree murder
(along with the home invasion counts), for violating 720
Ill. Comp. Stat. 5/9-1(a)(1). So at the least, Cheeks stands
convicted of first-degree murder under 720 Ill. Comp. Stat.
5/9-1(a)(1). This conviction did not have as an element
the commission or attempted commission of a forcible
felony.
  Nonetheless, Cheeks maintains that his first-degree
murder conviction for violating 720 Ill. Comp. Stat. 5/9-
1(a)(1) was dependent upon the home invasion con-
viction 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] attempt-
ing to commit, committing, or escaping after the com-
mission of, a forcible felony.” 720 Ill. Comp. Stat. 5/7-4(a).
And home invasion is a forcible felony in Illinois. Illinois v.
Ramey, 603 N.E.2d 519, 536 (Ill. 1992); Illinois v. Graham, 791
N.E.2d 724, 732 (Ill. App. Ct. 2003). Therefore, Cheeks
argues, that the trial judge found he was committing
home invasion rendered the defense of self-defense
unavailable to him.
  The problem for Cheeks is that committing a forcible
felony is not the only way to lose a self-defense argu-
ment in Illinois, and it is not the way he lost it here. Self-
defense is also not available in Illinois when the defendant
No. 05-3372                                                17

“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 Ill. 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 argu-
ment 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 has 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 conclu-
sion 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,
18                                               No. 05-3372

the judge declined to find self-defense because Cheeks
was the initial aggressor and no exception applied. There-
fore, 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.
   Having reached this conclusion, we need not address
his home invasion conviction. We briefly explain why
for completeness. The “concurrent sentence doctrine,” as
it has been called, has been termed a discretionary bar
to judicial review. See Benton v. Maryland, 395 U.S. 784, 787-
91 (1969); United States v. Kimberlin, 675 F.2d 866, 867
(7th Cir. 1982). It allows appellate courts to decline to
review a conviction carrying a concurrent sentence
when one “concurrent” conviction has been found valid.
Kimberlin, 675 F.2d at 867. We have said that “[t]he
proper exercise of this discretion depends on the degree
of prejudice that may be attributed to the challenged
conviction.” Cramer v. Fahner, 683 F.2d 1376, 1380 (7th Cir.
1982).
  The concurrent sentence doctrine would not apply if
Cheeks had been convicted in federal court. For fed-
eral 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 con-
current sentence doctrine. See Ray v. United States, 481
U.S. 736, 737 (1987) (per curiam); United States v. Spirk,
503 F.3d 619, 622 (7th Cir. 2007). Cheeks, though, was
convicted in Illinois state court, and the state court did not
No. 05-3372                                               19

impose a monetary assessment or fine for any of his
convictions in this case.
   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 court made it clear it had decided to sen-
tence above the statutory minimum for murder for
factors unrelated to home invasion, including Cheeks’s
criminal history. See United States v. Alanis, 265 F.3d
576, 590 (7th Cir. 2001) (no prejudice when defendant
received concurrent sentence and only one count of
conviction was improper); cf. United States v. Shah, 559
F.3d 643, 645 (7th Cir. 2009) (remanding for resentencing
on direct appeal to allow defendant to argue for lighter
sentence in light of reversal on one count). In addition,
Illinois no longer has parole, so the home invasion con-
viction would not affect that determination. Cheeks also
does not dispute the State’s assertion that his home
invasion conviction would not affect his term of man-
datory supervised release, as the term is the same for first-
degree murder and home invasion convictions and is not
increased by the home invasion conviction. See 730 Ill.
Comp. Stat. 5/5-8-1(d); 720 Ill. Comp. Stat. 5/12-11(c).
The home invasion conviction also would not affect the
determination of whether Cheeks was a habitual offender
because convictions connected with the same transaction
are considered one for purposes of that provision. See 720
Ill. Comp. Stat. 5/33B-1(c). Nor does Cheeks challenge
20                                              No. 05-3372

the propriety of the concurrent sentence doctrine itself.
Cf. Borre v. United States, 940 F.2d 215, 223 n.16 (7th Cir.
1991).
  So Cheeks offers us no other reason to review his con-
victions. 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, 395 U.S. 784 (1969), that the
existence of a concurrent sentence did not make a habeas
petition moot. Instead, a court could presume collateral
consequences from criminal convictions, thereby leaving
application of the concurrent sentence doctrine a matter
of the court’s discretion. Id. at 790-91. More recently,
however, the Court has criticized earlier collateral-conse-
quence jurisprudence, finding that presuming such
consequences “sits uncomfortably” beside the principles
that standing must appear in the record, and that the
burden is on the party seeking the favorable exercise of
jurisdiction to demonstrate that jurisdiction is present.
See Spencer v. Kemna, 523 U.S. 1, 9-14 (1998) (finding
insufficient collateral consequences to satisfy Article III’s
injury-in-fact requirement after petitioner completed
term of imprisonment resulting from parole revocation).
Spencer also said that any interest in vindicating one’s
reputation from a finding that he had committed a
serious felony is not enough to avoid mootness. Id. at 16
n.8; cf. Ball v. United States, 470 U.S. 856, 864-65 (1985)
(stating pre-Spencer that second conviction had potential
consequences even if it resulted in no greater sentence,
including harm to reputation).
No. 05-3372                                                21

  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 con-
current 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, 395 U.S. at 791, not as an affirmative defense
subject to forfeiture). See Jones v. Hulick, 449 F.3d 784, 787
(7th Cir. 2006). Therefore, we do not think that “law and
justice” requires further proceedings in this habeas case
where Cheeks has not pointed us to any potential
benefit from doing so. See Barnes v. United States, 412 U.S.
837, 848 & n.16 (1973) (declining as discretionary matter
to reach propriety of other convictions where defendant
serving concurrent sentence); cf. Cabrera v. Hinsley, 324
F.3d 527, 532-33 (7th Cir. 2003) (questioning need to
review additional conviction served under concurrent
sentence). We affirm the district court’s denial of Cheeks’s
petition for a writ of habeas corpus.


                    III. CONCLUSION
  The judgment of the district court is A FFIRMED.



                            7-7-09
