UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JAMES EZELL, Petitioner - Appellant,

v. SCOTT CROW, Respondent - Appellee. No. 21-6135 (D.C. No. 5:20- CV-00226-G) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and ROSSMAN , Circuit Judges. **

________________ _________________ Petitioner-Appellant James Ezell, a stat e inmate appearing pro se, seeks a certificate of appealability (COA) to appeal from the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2441; Ezell v. Crow, No. CIV-20-226, 2021 WL 4449278, at *1 (W.D. Okla. Sept. 28, 2021). Mr. Ezell challenges a prison disciplinary proceeding on due process grounds. To be granted a COA, Mr. Ezell must make “a substantial show ing of the denial of a constitutional right.” 28 U.S.C.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### August 4, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 12 § 2253(c)(2). The district court rejected hi s constitutional claims on the merits, so he “must demonstrate that reasona ble jurists would find the di strict court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Exercising jurisdiction under 28 U.S.C. § 1291, we find that some of Mr. Ezell’s due process claims cannot be resolved on summa ry judgment, so we grant a COA on those claims and inst ruct the district court to vacate its judgment and to resolve those claims after a hearing. On all other claims, we deny a COA.

Discussion This case stems from a disciplinary pr oceeding on May 3, 2018, at James Crabtree Correctional Center in Oklahoma, where Mr. Ezell was housed as a state prisoner. Ezell, 2021 WL 44 49278, at *1. That day, a correctional officer executed an incident report stating that Mr. Ezell had “thr[own] a cup of urine and feces at [him] that landed on [his] hands and pants legs” when the officer attempted to place hand restraints on Mr. Ezell. Id. (quoting R. 179). A ccording to the Oklahoma Department of Corrections (ODOC), Mr. Ezell signed a corres ponding offense report that he had received a copy of the written charge against him, re alized his right to remain silent, pled guilty, and wa ived his right to an appeal. Aplee. Br. at 4; R. 178. According to Mr. Ezell, he “never received the offense reports” and “[p]rison official[s] forged [his] signatu res on the report.” Aplt. Br. at 2; see also R. 215–16. Mr. Ezell’s resulting punishment was “a $20.00 fine, a canteen restriction of 180 Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 23 days, and a loss of 30 earned time credits.” Ezell, 2021 WL 4449278, at *1. His subsequent appeal was denied becau se of his alleged waiver. Id. After pursuing his state remedies, Mr . Ezell filed the instant petition. 1 R. 6–14 (Original Petition); R. 215–2 1 (Amended Petition). The Resp ondent (the director of ODOC) moved to dismiss the petition. R. 225–35. The magistrate judge recommended construing Respo ndent’s motion as a motion for summary judgment. R. 283–94. Mr. Ezell did not object to this construction. Ezell, 2021 WL 4449278, at *1 n.2; see also R. 295– 304. The district court a dopted the magistrate judge’s recommendation, granted summary judgment, and denied the petition. Ezell, 2021 WL 4449278, at *3. Mr. Ezell alleges that his due process rights were viol ated because: (1) he did not receive his offense report; (2) his signa ture was forged; and (3) the correctional facility did not follow its own procedur es by allowing a disciplinary hearing coordinator to be involved in investigat ing and prosecuting hi s case and in wrongly transferring him to a “supermax” prison. Ezell, 2021 WL 4449278, at *1–3; R. 215– 21. Because prison regulations do not create enforceable pr ocedural rights, Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1341 (10th Cir. 2007), and Mr. Ezell was not in fact transf erred to a supermax prison, Ezell, 2021 WL 4449278, at *3, we deny a COA on argument three. However, we consider arguments one and

1 Because Mr. Ezell challenges prison disciplinary proceedings that revoked good-time credits, he appropriately brought his action as one for habeas relief under 28 U.S.C. § 2241. See Preiser v. Rodrigue z, 411 U.S. 475, 487–8 8 (1973); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997). Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 34 two because due process entitles Mr. Ez ell to “advance writ ten notice of the disciplinary charges” and “an opportunity, wh en consistent with institutional safety and correctional goals, to ca ll witnesses and present doc umentary evidence in his defense.” Superintendent, Ma ss. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454 (1985). Mr. Ezell has alleged that he was not gi ven notice of his ch arges and not given any opportunity to provide a defense b ecause his signature acknowledging receipt and waiving his right to an appeal was forg ed. Aplt. Br. at 2. He supports these allegations with an affida vit. R. 278–81. Respon dent provides a correctional officer’s affidavit claiming th e opposite. R. 326–27. That correctional officer is the same officer who was assigned to Mr. Ezell’s disciplinary case. R. 326. We review de novo the district court’ s grant of summary judgment, taking the facts in the most favorable light for the nonmovant and drawing all reasonable inferences in his favor. Eckard v. State Farm Mut. Auto. Ins. Co., 25 F.4th 1275, 1277 (10th Cir. 2022). We cannot follow the district court in giving Respondent’s affidavit weight, but disregarding Mr. Ezell’ s as “conclusory and self-serving.” See Ezell, 2021 WL 4449278, at *2 (quoting Ha ll v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). “Material factual disputes cannot be resolved at summary judgment based on conflicting affidavits .” Hall, 935 F.2d at 1111. We also question whether “Petitioner’s [alleged] signatures on the Offense Report and Disciplinary Disposition Report ar e substantially similar to his signatures on other documents.” Ezell, 2021 WL 4449 278, at *2. We consider the three Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 45 contested signatures, see R. 241, 243, to be less clear th an, and distinguishable from, Mr. Ezell’s signatures elsewh ere in the record, see R. 239, 244, 257, 259–60; see also, e.g., R. 14, 221. We are not handwri ting experts — and that is the point. Mr. Ezell has made a substantia l showing of a violation of a constitutional right, and summary judgment cannot lie. Accordingly, we GRANT a COA as to arguments one and two, but deny a COA as to argument three and any other challenges. We GRANT the motion to proceed IFP, VACATE the district cour t’s entry of summary judgment, and REMAND to the district cour t for further proceedings.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 5