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09/01/87 the People of the State of v. Melvin Dixon

September 1, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE

v.

MELVIN DIXON, PETITIONER-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 134, 160 Ill. App. 3d 65, 111 Ill. Dec. 888 1987.IL.1274

Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. KARNS, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

The St. Clair County circuit court found defendant Melvin Dixon (petitioner) guilty of the offense of rape and sentenced him to 20 years in the department of corrections. On appeal this court affirmed petitioner's conviction and sentence. Thereafter, petitioner filed a post-conviction petition which was denied after a hearing on the State's motion to dismiss. From this order petitioner appeals. We affirm.

The record reveals the following facts. After petitioner filed a pro se petition for post-conviction relief, the trial court appointed counsel for petitioner. The chief Judge of the circuit court then assigned a Judge other than the original Judge at trial to preside at the post-conviction petition proceedings. Trial counsel subsequently filed an amended petition which alleged in part:

"3. That the Petitioner was denied effective assistance of counsel as guaranteed by the United States and Illinois Constitutions and in support thereof states as follows:

(a). That the retained trial attorney, Jack Giannini, failed to properly investigate the background of the victim, Linda Boggy, with regard to any record of prior prostitution or any other criminal offenses. Any such information could have been utilized to impeach the testimony of the victim.

(b). That said trial attorney failed to investigate the testimony of several pre-occurrence witnesses, namely one David McCoy, one Michael Lofton, and Eddy Richardson, who would have aided petitioner's defense. Trial counsel chose instead to call Robert Lofton as a witness. Said Robert Lofton was an extremely poor witness and this fact should have been known by trial attorney. Also, said trial attorney failed to investigate the testimony of the service station attendant as well as any witnesses at the service station which may have aided in corroborating petitioner's testimony.

4. That the prosecution used peremptory challenges to systematically exclude blacks from the jury solely because of their race.

5. That petitioner was denied effective assistance of appellate counsel due to said counsel's failure to raise the issues contained herein, on appeal."

The State filed a motion to dismiss stating that petitioner failed to state a claim upon which relief can be granted and that petitioner's claims are barred by the principle of res judicata. After a hearing on the State's motion, the trial court dismissed petitioner's petition.

In petitioner's first issue on appeal, he argues that the trial court erred when it denied his petition for post-conviction relief without an evidentiary hearing. He specifically argues ...


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