Ezell v. Crow

Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
JAMES EZELL,
Petitioner - Appellant,
v. No. 21-6135
(D.C. No. 5:20-CV-00226-G)
SCOTT CROW, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.**
_________________________________
Petitioner-Appellant James Ezell, a state 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 showing of the denial of a constitutional right.” 28 U.S.C.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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.
Appellate Case: 21-6135 Document: 010110720733 Date Filed: 08/04/2022 Page: 2
§ 2253(c)(2). The district court rejected his constitutional claims on the merits, so he
“must demonstrate that reasonable jurists would find the district 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 summary judgment, so we grant
a COA on those claims and instruct 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 proceeding on May 3, 2018, at James
Crabtree Correctional Center in Oklahoma, where Mr. Ezell was housed as a state
prisoner. Ezell, 2021 WL 4449278, 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). According to the Oklahoma
Department of Corrections (ODOC), Mr. Ezell signed a corresponding offense report
that he had received a copy of the written charge against him, realized his right to
remain silent, pled guilty, and waived 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] signatures 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
2
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days, and a loss of 30 earned time credits.” Ezell, 2021 WL 4449278, at *1. His
subsequent appeal was denied because of his alleged waiver. Id.After pursuing his state remedies, Mr. Ezell filed the instant petition.1 R. 6–14
(Original Petition); R. 215–21 (Amended Petition). The Respondent (the director of
ODOC) moved to dismiss the petition. R. 225–35. The magistrate judge
recommended construing Respondent’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 adopted 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 violated because: (1) he did
not receive his offense report; (2) his signature was forged; and (3) the correctional
facility did not follow its own procedures by allowing a disciplinary hearing
coordinator to be involved in investigating and prosecuting his 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 procedural rights, Estate of
DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1341 (10th Cir. 2007), and Mr.
Ezell was not in fact transferred 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. Rodriguez, 411 U.S. 475, 487–88 (1973); McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997).
3
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two because due process entitles Mr. Ezell to “advance written notice of the
disciplinary charges” and “an opportunity, when consistent with institutional safety
and correctional goals, to call witnesses and present documentary evidence in his
defense.” Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454
(1985).
Mr. Ezell has alleged that he was not given notice of his charges and not given
any opportunity to provide a defense because his signature acknowledging receipt
and waiving his right to an appeal was forged. Aplt. Br. at 2. He supports these
allegations with an affidavit. R. 278–81. Respondent provides a correctional
officer’s affidavit claiming the 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 Hall 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 are substantially similar to his signatures
on other documents.” Ezell, 2021 WL 4449278, at *2. We consider the three
4
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contested signatures, see R. 241, 243, to be less clear than, and distinguishable from,
Mr. Ezell’s signatures elsewhere in the record, see R. 239, 244, 257, 259–60; see
also, e.g., R. 14, 221. We are not handwriting experts — and that is the point. Mr.
Ezell has made a substantial 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 court’s entry of summary judgment, and
REMAND to the district court for further proceedings.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
5