[Cite as State v. Biggs, 2020-Ohio-6691.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2020CA00042 : JAY L. BIGGS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2008CR0653
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 14, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. JAY LEWIS BIGGS, PRO SE STARK CO. PROSECUTOR Inmate No. 560-289 RONALD MARK CALDWELL Lorain Correctional Inst. 110 Central Plaza South, Ste. 510 2075 S. Avon Belden Road Canton, OH 44702-1413 Grafton, OH 44044 Stark County, Case No. 2020CA00042 2
Delaney, J.
{¶1} Appellant Jay L. Biggs appeals from the February 6, 2020 Judgment Entry
Denying Defendant’s Motion for Recut Microscopic Slides of the Stark County Court of
Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts is not necessary to our resolution of this appeal
arising from appellant's 2008 convictions for the rape and murder of his 4–month old
daughter.
{¶3} On May 28, 2008, the Stark County Grand Jury indicted appellant on two
counts of aggravated murder with death penalty specifications in violation of R.C.
2903.01, two counts of murder in violation of R.C. 2903.02, one count of rape in violation
of R.C. 2907.02, and one count of endangering children in violation of R.C. 2919.22. The
case proceeded to trial by jury on October 1, 2008. The jury found appellant guilty as
charged and recommended that appellant serve a term of life imprisonment without the
possibility of parole. By judgment entry filed December 5, 2008, the trial court sentenced
appellant to life in prison without parole.
State Appellate and Postconviction History
{¶4} In State v. Biggs, 5th Dist. Stark No.2008CA00285, 2009–Ohio–6885,
appeal not allowed, 125 Ohio St.3d 1438, 2010–Ohio–2212 [Biggs I ], appellant directly
appealed from his convictions and sentence, raising one assignment of error. Appellant
argued the guilty findings of the trial court were against the manifest weight and
sufficiency of the evidence. We disagreed and affirmed appellant's convictions and
sentence. Id. Stark County, Case No. 2020CA00042 3
{¶5} On November 7, 2012, the Ohio Innocence Project filed a motion to release
biological samples in the case, seeking new copies of the tissue slides in order to evaluate
appellant's case for any possible post-conviction proceedings. By judgment entry filed
December 12, 2012, the trial court denied the motion.
{¶6} Appellant appealed from the trial court's order and raised four assignments
of error: the trial court created an unconstitutional “circular and self-defeating legal
standard for obtaining tissue slides from an autopsy” such that no such application would
ever be granted; the trial court erred in failing to release re—cuts of tissue slides to
appellant's experts; the trial court erred when it analyzed defendant's request for tissue
slides as being based solely on advancements in S.I.D.S.; and the trial court erred in
treating the motion as a petition for post-conviction relief. We overruled the four
assignments of error and the Ohio Supreme Court declined review. State v. Biggs, 5th
Dist. Stark No. 2013CA00009, 2013–Ohio–3333, appeal not allowed, 137 Ohio St.3d
1441, 2013–Ohio–5678, 999 N.E.2d 696 [Biggs II ].
{¶7} On October 28, 2015, appellant filed a “Motion for Remmer Hearing Due to
Judge Farmer's Discovery from Jury Commissioner of Possible Jury Misconduct.”
Appellee filed a motion in opposition. The trial court overruled the motion on January 6,
2016. On December 7, 2015, appellant filed “Defendant's Motion for Resentencing.”
Appellee responded with a motion in opposition and the trial court denied the motion by
separate judgment entry dated January 6, 2016.
{¶8} Appellant appealed from both judgment entries of the trial court dated
January 6, 2016, the appeals were consolidated, and we affirmed the entries of the trial Stark County, Case No. 2020CA00042 4
court. State v. Biggs, 5th Dist. Stark No. 2016CA00024, 2016-Ohio-5305, appeal not
allowed, 147 Ohio St.3d 1507, 2017-Ohio-261, 67 N.E.3d 824 [Biggs IIII].
Federal Appellate and Postconviction History
{¶9} Appellant sought federal habeas corpus relief pursuant to 28 U.S.C. 2254
challenging the legality of his convictions and sentences. The district court concluded,
e.g., this Court did not unreasonably apply the sufficiency standard. Biggs v. Coleman
(N.D. Ohio Jan. 15, 2014), No. 5:11-CV-00292, 2014 WL 185893 (Pearson, J.).
{¶10} In 2015, appellant filed a §1983 action asserting violation of his civil rights
by the Stark County Prosecutor. The basis of appellant’s claimed violation was failure to
turn over the recut slides that were the subject of Biggs II. Appellant argued his
constitutional rights were denied due to the failure to turn over biological evidence for
forensic testing. The action was dismissed by the district court, a decision affirmed on
appeal. Biggs v. Ferrero (6th Cir. Nov. 29, 2017), No. 17-3469, 2017 WL 9287499, cert.
denied, --U.S.--, 138 S.Ct. 2657, 201 L.Ed.2d 1056 (2018).
{¶11} Appellant filed a subsequent §1983 action arising from his allegations in
Biggs III; this action was summarily dismissed by the district court and the decision was
affirmed on appeal. Biggs v. Ferrero (N.D. Ohio Oct. 17, 2018), No. 5:18-cv-1020, 2018
WL 5025250 (Adams, J.); Biggs v. Ferrero (6th Cir. Apr. 22, 2019), No. 18-4083, 2019
WL 1938523.
Instant Litigation
{¶12} On February 5, 2020, appellant filed another “Motion for an Order to
Release Recut Microscopic Slides” in the trial court. In this motion, appellant renewed
the request of his 2012 motion, this time arguing that he was denied equal protection Stark County, Case No. 2020CA00042 5
because other Ohio counties provide access to similar biological evidence at minimal
cost.
{¶13} The trial court denied appellant’s motion by judgment entry dated February
20, 2020. It is from this judgment entry appellant now appeals.
{¶14} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶15} “THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S
MOTION FOR AN ORDER TO RELEASE RECUT TISSUE SLIDES, IN VIOLATION OF
HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS.”
ANALYSIS
{¶16} Appellant argues the trial court erred in overruling his motion to release
recut microscopic slides because other counties anecdotally permit easier access to such
evidence. We disagree.
{¶17} We first note this is at least the third time appellant’s request for recut tissue
slides has been litigated. Moreover, appellant received, used, and disposed of the
evidence he again requests. On page 10 of his brief, he states, “* * * the Defendant’s trial
counsel and court appointed expert were provided tissue slides from [the victim’s] autopsy
prior to trial pursuant to Crim.R. 16. The tissue slides were not retained by trial counsel
or the court appointed expert after the trial.”
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[Cite as State v. Biggs, 2020-Ohio-6691.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2020CA00042 : JAY L. BIGGS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2008CR0653
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 14, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. JAY LEWIS BIGGS, PRO SE STARK CO. PROSECUTOR Inmate No. 560-289 RONALD MARK CALDWELL Lorain Correctional Inst. 110 Central Plaza South, Ste. 510 2075 S. Avon Belden Road Canton, OH 44702-1413 Grafton, OH 44044 Stark County, Case No. 2020CA00042 2
Delaney, J.
{¶1} Appellant Jay L. Biggs appeals from the February 6, 2020 Judgment Entry
Denying Defendant’s Motion for Recut Microscopic Slides of the Stark County Court of
Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts is not necessary to our resolution of this appeal
arising from appellant's 2008 convictions for the rape and murder of his 4–month old
daughter.
{¶3} On May 28, 2008, the Stark County Grand Jury indicted appellant on two
counts of aggravated murder with death penalty specifications in violation of R.C.
2903.01, two counts of murder in violation of R.C. 2903.02, one count of rape in violation
of R.C. 2907.02, and one count of endangering children in violation of R.C. 2919.22. The
case proceeded to trial by jury on October 1, 2008. The jury found appellant guilty as
charged and recommended that appellant serve a term of life imprisonment without the
possibility of parole. By judgment entry filed December 5, 2008, the trial court sentenced
appellant to life in prison without parole.
State Appellate and Postconviction History
{¶4} In State v. Biggs, 5th Dist. Stark No.2008CA00285, 2009–Ohio–6885,
appeal not allowed, 125 Ohio St.3d 1438, 2010–Ohio–2212 [Biggs I ], appellant directly
appealed from his convictions and sentence, raising one assignment of error. Appellant
argued the guilty findings of the trial court were against the manifest weight and
sufficiency of the evidence. We disagreed and affirmed appellant's convictions and
sentence. Id. Stark County, Case No. 2020CA00042 3
{¶5} On November 7, 2012, the Ohio Innocence Project filed a motion to release
biological samples in the case, seeking new copies of the tissue slides in order to evaluate
appellant's case for any possible post-conviction proceedings. By judgment entry filed
December 12, 2012, the trial court denied the motion.
{¶6} Appellant appealed from the trial court's order and raised four assignments
of error: the trial court created an unconstitutional “circular and self-defeating legal
standard for obtaining tissue slides from an autopsy” such that no such application would
ever be granted; the trial court erred in failing to release re—cuts of tissue slides to
appellant's experts; the trial court erred when it analyzed defendant's request for tissue
slides as being based solely on advancements in S.I.D.S.; and the trial court erred in
treating the motion as a petition for post-conviction relief. We overruled the four
assignments of error and the Ohio Supreme Court declined review. State v. Biggs, 5th
Dist. Stark No. 2013CA00009, 2013–Ohio–3333, appeal not allowed, 137 Ohio St.3d
1441, 2013–Ohio–5678, 999 N.E.2d 696 [Biggs II ].
{¶7} On October 28, 2015, appellant filed a “Motion for Remmer Hearing Due to
Judge Farmer's Discovery from Jury Commissioner of Possible Jury Misconduct.”
Appellee filed a motion in opposition. The trial court overruled the motion on January 6,
2016. On December 7, 2015, appellant filed “Defendant's Motion for Resentencing.”
Appellee responded with a motion in opposition and the trial court denied the motion by
separate judgment entry dated January 6, 2016.
{¶8} Appellant appealed from both judgment entries of the trial court dated
January 6, 2016, the appeals were consolidated, and we affirmed the entries of the trial Stark County, Case No. 2020CA00042 4
court. State v. Biggs, 5th Dist. Stark No. 2016CA00024, 2016-Ohio-5305, appeal not
allowed, 147 Ohio St.3d 1507, 2017-Ohio-261, 67 N.E.3d 824 [Biggs IIII].
Federal Appellate and Postconviction History
{¶9} Appellant sought federal habeas corpus relief pursuant to 28 U.S.C. 2254
challenging the legality of his convictions and sentences. The district court concluded,
e.g., this Court did not unreasonably apply the sufficiency standard. Biggs v. Coleman
(N.D. Ohio Jan. 15, 2014), No. 5:11-CV-00292, 2014 WL 185893 (Pearson, J.).
{¶10} In 2015, appellant filed a §1983 action asserting violation of his civil rights
by the Stark County Prosecutor. The basis of appellant’s claimed violation was failure to
turn over the recut slides that were the subject of Biggs II. Appellant argued his
constitutional rights were denied due to the failure to turn over biological evidence for
forensic testing. The action was dismissed by the district court, a decision affirmed on
appeal. Biggs v. Ferrero (6th Cir. Nov. 29, 2017), No. 17-3469, 2017 WL 9287499, cert.
denied, --U.S.--, 138 S.Ct. 2657, 201 L.Ed.2d 1056 (2018).
{¶11} Appellant filed a subsequent §1983 action arising from his allegations in
Biggs III; this action was summarily dismissed by the district court and the decision was
affirmed on appeal. Biggs v. Ferrero (N.D. Ohio Oct. 17, 2018), No. 5:18-cv-1020, 2018
WL 5025250 (Adams, J.); Biggs v. Ferrero (6th Cir. Apr. 22, 2019), No. 18-4083, 2019
WL 1938523.
Instant Litigation
{¶12} On February 5, 2020, appellant filed another “Motion for an Order to
Release Recut Microscopic Slides” in the trial court. In this motion, appellant renewed
the request of his 2012 motion, this time arguing that he was denied equal protection Stark County, Case No. 2020CA00042 5
because other Ohio counties provide access to similar biological evidence at minimal
cost.
{¶13} The trial court denied appellant’s motion by judgment entry dated February
20, 2020. It is from this judgment entry appellant now appeals.
{¶14} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶15} “THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S
MOTION FOR AN ORDER TO RELEASE RECUT TISSUE SLIDES, IN VIOLATION OF
HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS.”
ANALYSIS
{¶16} Appellant argues the trial court erred in overruling his motion to release
recut microscopic slides because other counties anecdotally permit easier access to such
evidence. We disagree.
{¶17} We first note this is at least the third time appellant’s request for recut tissue
slides has been litigated. Moreover, appellant received, used, and disposed of the
evidence he again requests. On page 10 of his brief, he states, “* * * the Defendant’s trial
counsel and court appointed expert were provided tissue slides from [the victim’s] autopsy
prior to trial pursuant to Crim.R. 16. The tissue slides were not retained by trial counsel
or the court appointed expert after the trial.”
{¶18} Post-conviction relief, including applications for D.N.A. testing and
biological evidence, are not a vehicle to perpetuate a defendant’s case ad infinitum,
limited only by the defendant’s creativity in framing the same request in a new way. We
rejected this approach in Biggs II, noting post-conviction relief is a limited right, and a Stark County, Case No. 2020CA00042 6
post-conviction application for DNA testing does not offer an opportunity to endlessly re-
litigate an issue already settled:
By inference, appellant argues he was afforded the tissue
slides in initial discovery and therefore what harm is there in permitting him
to have them again. Presumably, if Dr. Spitz had not lost/destroyed the
slides, appellant's new experts could render their reports without judicial
intervention. Basically, the argument is “no harm, no foul.”
State v. Biggs, 5th Dist. Stark No. 2013CA00009, 2013-Ohio-
3333, ¶ 21.
{¶19} Appellant now implies he retains a right to the evidence his own trial counsel
and expert witnesses had, but did not retain, on the basis of an opinion of the Ohio
Attorney General. 2017 Ohio Op. Atty. Gen. No. 16. This opinion addresses retention of
evidence by law enforcement agencies, courts of common pleas, prosecutors, and clerks
of appellate courts. From this Opinion, appellant infers he has a “substantive right” to the
evidence he requests. We do not find support for appellant’s assertion in the Opinion.
{¶20} Appellant’s latest request is framed as an equal-protection argument; he
anecdotally notes other Ohio counties provide evidence of the type he seeks (recut
microscopic slides) for a nominal cost. He does not, however, reveal those counties’
positions when the defendant seeking the evidence has already been provided with it.
The equal-protection argument we glean from appellant’s brief, although unclear, is that
his right to equal protection of the law is violated because some counties provide
biological evidence at a minimal cost, but appellant’s request for such evidence in Stark Stark County, Case No. 2020CA00042 7
County have been denied. This argument is a logical fallacy because he compares two
dissimilar situations.
{¶21} Equal protection under the law requires that no person or class of persons
be denied the protection afforded by the law to other persons or classes in like
circumstances. Huntington Natl. Bank v. Limbach, 71 Ohio St.3d 261, 262, 643 N.E.2d
523 (1994). The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides, “No State shall * * * deny to any person within its jurisdiction
the equal protection of the laws.” Ohio's Equal Protection Clause, Section 2, Article I of
the Ohio Constitution, states, “All political power is inherent in the people. Government is
instituted for their equal protection and benefit * * *.” These constitutional guarantees do
not forbid classifications. “[They] simply keep [ ] governmental decision makers from
treating differently persons who are in all relevant respects alike.” Burnett v. Motorists
Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 30; Nordlinger v.
Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). “Thus, the comparison of
only similarly situated persons or groups is integral to an equal protection analysis.” State
v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 145.
{¶22} The Equal Protection Clause “does not require things which are different in
fact * * * to be treated in law as though they were the same.” GTE N., Inc. v. Zaino, 96
Ohio St.3d 9, 2002-Ohio-2984, 770 N.E.2d 65, ¶ 22, citing Tigner v. Texas, 310 U.S. 141,
147, 60 S.Ct. 879, 84 L.Ed. 1124 (1940).
{¶23} Setting aside the many holes in appellant’s equal-protection analysis, we
find the argument fails most directly because there is no evidence or even assertion that
appellant is similarly-situated to the defendants in other counties with purported easier Stark County, Case No. 2020CA00042 8
access to biological evidence. As noted supra, appellant’s anecdotal evidence does not
address situations, like his, in which the defense trial team was in possession of and
utilized the evidence the defendant later repeatedly requests. See, State v. Widmer, 12th
Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 146 [“Here, Widmer's claim fails for
the fundamental reason that he is not similarly situated to the offenders listed in R.C.
2953.71 et seq. so as to violate the guarantees of equal protection. There is a vast
difference between offenders who seek to compare their own DNA against that of an
unidentified prospective perpetrator, and those who wish to test a victim's DNA for,
perhaps, an interminable array of ailments in the hopes of discovering some mitigating
evidence.”]
{¶24} We conclude the trial court did not err in overruling appellant’s motion to
release recut microscopic slides. Appellant’s sole assignment of error is overruled. Stark County, Case No. 2020CA00042 9
CONCLUSION
{¶25} Appellant’s sole assignment of error is overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.