Doyle v. Schmitt
MEMORANDUM OPINION: For the reasons stated above, the petition of William E. Doyle for a writ of habeas corpus is denied. An appropriate Judgment Order is issued herewith. Because petitioner did not make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied. 28 U.S.C. § 2253(c). Signed by Magistrate Judge David D. Noce on 10/20/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
WILLIAM E. DOYLE,
No. 4:15 CV 656 DDN
This action is before the court upon the petition of Missouri state prisoner William
E. Doyle for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have
consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the
petition for a writ of habeas corpus is denied.
Petitioner Doyle is confined at the Southeast Missouri Mental Health Center in the
Sexual Offender Rehabilitation and Treatment Services Unit (SORTS) in Farmington,
Missouri. Petitioner pled guilty in the Circuit Court of Jefferson County to statutory rape
in the first degree on October 16, 2001, and on that day was sentenced to 12 years in the
Missouri Department of Corrections. See State of Missouri v. William E. Doyle, No. 23
CR 301-1084 (Circuit Court of Jefferson County, Missouri, October 16, 2001);
On April 8, 2002, the
Circuit Court sustained the state's motion to dismiss petitioner's motion for postconviction relief. See William E. Doyle v. State of Missouri, No. 23 CV 302-0385
(Circuit Court of Jefferson County, April 8, 2002); https://www.courts.mo.gov/
On June 17, 2011, the state of Missouri filed a petition for the civil confinement of
petitioner Doyle under Revised Statute of Missouri §§ 632.480-632.513 (regarding civil
commitment of a sexually violent predator (SVP)). (Doc. 12-2 at 14-26). On July 14,
2011, following a hearing, the Probate Division of the Circuit Court found probable cause
to believe petitioner was an SVP under § 632.480(5). (Doc. 12-2 at 7).
On March 13, 2013, after a trial in the Probate Division of the Circuit Court of St.
Louis County, a jury unanimously found by clear and convincing evidence that petitioner
was an SVP, and the Circuit Court thereupon ordered him committed to the custody of
the Director of the Department of Mental Health for control, care, and treatment "until
such time as [petitioner's] mental abnormality has so changed that he is safe to be at
large." (Doc. 12-2 at 198). On June 17, 2013, the Circuit Court denied petitioner's
motion for judgment notwithstanding the judgment of the jury. (Id. at 235).
On direct appeal, petitioner argued that the Circuit Court erred: (1) by denying his
motion to prohibit the state from hiring a private psychiatrist or psychologist to testify at
his trial; (2) by committing him to indefinite, secure confinement in the custody of the
Missouri Department of Mental Health, because the evidence was insufficient to sustain
the state's burden of proof that he was likely to engage in predatory sexual violence if not
confined and that he had a mental abnormality, both grounds in part in violation of the
Fourteenth Amendment to the Constitution of the United States. (Doc. 12-3 at 20-23).
The Missouri Court of Appeals affirmed the jury's verdict and the commitment
order. (Doc. 12-5 at 1-14); In the Matter of the Care and Treatment of William Doyle,
428 S.W.3d 755, 756 (Mo. Ct. App. 2014) (In re Doyle). In its opinion, the appellate
court described the facts, viewed in the light most favorable to the jury verdict, as
Appellant was born in 1974. His parents divorced when he was
young, and his mother's boyfriend sexually abused him. He also had sexual
interactions with babysitters when he was five years old.
In 1991, Appellant sexually molested his half-sister, Betty, who was
six years old at the time. An older sister came into the room and saw
Appellant naked from the waist down and Betty with very little clothing.
During an investigation following this, Betty reported several incidents of
Appellant molesting her, which included him touching her, lying on top of
her, asking her to touch his penis, touching her anus with his penis, and
ejaculating. The day Appellant's older sister walked in and saw them,
Appellant continued molesting Betty after she left. He would promise
Betty that he would to take her to McDonald's if she touched his penis, and
he threatened to beat her up if she told anyone.
Appellant pled guilty to sexual abuse in the first degree for the
molestation of Betty. He received a suspended imposition of sentence, five
years of probation, and he was required to participate in sex offender
treatment. He participated to some extent in this treatment and had
probation extended because of an unrelated arrest. While on probation, he
was 18 years old and was living with a 15–year–old girl whom he
impregnated and had a child. Appellant completed probation in June 1997.
Appellant was investigated again in 2000 for allegations of sexual
abuse against an eight-year-old girl, Paige. Appellant was living with his
girlfriend at the time, and his girlfriend was Paige's babysitter. One day,
Paige's mother came to drop her off with Appellant's girlfriend, who was
not home. Paige did not want to go in the house with only Appellant home,
and she eventually admitted to her mother that it was because Appellant
had touched her vaginal area. In a forensic interview conducted by the
Division of Family Services (DFS) in October of 2000, Paige reported that
Appellant had touched her several times since she was six years old. On
October 27, 2000, Appellant denied any sexual contact with Paige in his
interview with DFS. DFS eventually made a finding of probable cause
during its investigation. The State of Missouri obtained an arrest warrant in
2001 regarding the incidents with Paige.
However, at that time Appellant was in prison for a separate sexual
abuse case. In November of 2000, while the investigation regarding Paige
was still open, Appellant was found to have engaged in sexual activity with
another child, Audrey, who was 13 years old. Audrey was Appellant's
father's wife's niece, and they met at a family gathering. Appellant was 26
years old at the time. They had sexual intercourse twice that day and
continued having sexual intercourse several times over the next month.
Audrey's mother discovered their sexual activity by listening to a telephone
conversation Audrey had with Appellant. Appellant was convicted of
statutory rape in both St. Louis County and Jefferson County for having
sexual intercourse with Audrey. He was sentenced to 10 years in St. Louis
County and 12 in Jefferson County, to be served concurrently in the
Missouri Department of Corrections.
Appellant was in prison from 2001 through 2009, during which he
completed the Missouri Sex Offender Program (MOSOP). He received one
sexual misconduct violation during that time for groping the breast of a
female visitor and allowing her to touch his groin. Appellant was released
on parole in 2009. He committed several rule violations and eventually his
parole was revoked and he returned to prison. His rule violations included
a delay in beginning sex offender treatment, failing to attend two assigned
therapy sessions, having cell phone numbers and email addresses that he
did not disclose to his parole agent, and having unauthorized social media
accounts. Appellant was also evasive in his answers during treatment while
on parole, and he had several relationships with women that he did not
disclose during that time.
Four experts testified regarding Appellant's status as an SVP. Dr.
Kimberly Weitl, a clinical psychologist employed by the State of Missouri
in MOSOP, had screened Appellant's records in 2009 when he was released
on parole. At that time, she considered Appellant to have a sexual disorder
and a high risk of reoffending. However, she did not find a mental
abnormality at the time, and Appellant was released on parole because he
had completed MOSOP, which typically mitigates the risk of reoffending.
Dr. Weitl had originally diagnosed Appellant with paraphilia, a
general category of deviant sexual behavior. However, she changed this
diagnosis to pedophilia when she learned that Appellant's first victim was
younger than he had reported and the abuse went on for a longer period of
time. [Footnote 2: Pedophilia requires a finding that the abuse went on
for at least six months.] She found that he had not integrated the principles
he had learned in treatment. In addition to independently considering
Appellant's risk factors including his specific behavior toward the victims
and his actions going through treatment, Dr. Weitl used two diagnostic
tools in evaluating Appellant the second time, the Static–99 and the
Minnesota Sex Offender Screening Tool Revised (MnSOST). She scored a
three or four on the Static–99, and a 14 on the MnSOST; the 14 MnSOST
score is in a subcategory of high risk for reoffending. Dr. Weitl testified
she believed Appellant was more likely than not to reengage in predatory
acts of sexual violence if not confined to a secure facility.
The State also sought a second opinion from Dr. Angeline
Stanislaus, a forensic psychiatrist. Dr. Stanislaus reviewed all reports and
records related to Appellant, but Appellant did not consent to an interview
with her. Dr. Stanislaus diagnosed Appellant with pedophilia. She based
this in part on the facts showing he molested three children each over a
period of time, and she found that several of his actions related to the abuse
of each victim showed he has serious difficulty controlling his behavior and
sexual urges. Dr. Stanislaus also assessed Appellant's risk for reoffending,
which she based in part on actuarial tools. She used the Static–99, as well
as its revised version, the Static–99R. She gave Appellant a score of three
on both instruments, which is in the moderate low risk category. Dr.
Stanislaus also evaluated Appellant's dynamic risk factors, which are
individualized factors that can be identified in particular offenders. She
found several risk factors present in Appellant, including deviate sexual
interest, sexual preference for children, emotional identification with
children, offense-supportive attitude, sexual preoccupation, and
impulsivity. She concluded in this light that he was more likely than not to
reoffend if not confined to a secure facility.
Appellant called Dr. Jeffrey Kline to testify, a forensic psychologist
employed by the Department, who also evaluated Appellant. Dr. Kline
reviewed Appellant's records but did not interview Appellant. He
concluded Appellant did not have a mental abnormality as required under
the definition of an SVP. Dr. Kline opined that Appellant had adult
antisocial behavior. He said Appellant may have an antisocial personality
disorder, but there was not enough information to prove it. Dr. Kline also
considered the diagnosis of pedophilia, but he concluded there was not
enough evidence to confirm Appellant was in fact sexually attracted to
children, or that his behavior was driven by sexual urges or fantasies
toward children. Dr. Kline testified that there are many reasons a person
can engage in sexual behavior with children, and they are not necessarily
due to pedophilia. Dr. Kline gave Appellant a score of four on the Static–
99R, which is in the moderately high category of risk. Dr. Kline concluded
that Appellant did not suffer from a mental abnormality that would make it
difficult for him to control his behavior. Also, Dr. Kline saw no evidence
that he reoffended while on parole, though he acknowledged the presence
of some risk factors such as unstable employment history. Dr. Kline
concluded he did not believe that Appellant was more likely than not to
reoffend if not confined to a secure facility.
Dr. Luis Rosell, a clinical and forensic psychologist, was the final
expert who testified on Appellant's behalf concerning his status as an SVP.
He reviewed the records of Drs. Weitl, Stanislaus, and Kline. He also met
with Appellant. Dr. Rosell found it noteworthy that when Appellant was
released on parole, the State did not seek to have him committed as an SVP,
and Appellant's parole was not revoked because of any evidence that he
was interested in prepubescent children. Dr. Rosell also did not find that
Appellant had pedophilia, and he agreed with Dr. Kline that there are many
other reasons why people may commit sex offenses against children. Dr.
Rosell diagnosed Appellant with adult antisocial behavior. Dr. Rosell also
used the Static–99R to assess Appellant's risk of reoffending. He gave
Appellant a score of three if he had lived with a lover for over two years,
and a four if that was not true. He concluded that Appellant did not suffer
from a mental abnormality under the applicable definition, and he did not
believe that Appellant was more likely than not to reoffend if not held in a
Appellant testified that he had learned from his treatment in MOSOP
and therapy while he was on parole. He reflected on the past abuse he had
endured, and he learned about empathy and the effects of what he had done
to his victims. He realized he had rationalized the abuse against Betty
because her father was the one who had sexually abused him. He also
believed the things he had done were not wrong at the time, but he knows
they were wrong now. He testified regarding strategies he learned to stop
himself before reoffending, and that he did not want to cause anyone more
The jury found that Appellant was an SVP, and the probate court
issued its judgment committing him to the custody of the Department for
control, care, and treatment, until such time as Appellant's mental
abnormality had so changed that he was safe to be at large.
(Doc. 12, Ex. 5 at 2-7); In re Doyle, 428 S.W.3d at 757–59.
Petitioner did not seek review by the Supreme Court of Missouri or by the
Supreme Court of the United States. (Doc. 1 at 2). He timely filed his instant federal
petition for a writ of habeas corpus.
II. PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF
Petitioner alleges two grounds for relief in this federal habeas action:
The Circuit Court erroneously admitted the testimony of Dr. Angeline
Stanislaus, a forensic psychiatrist, because she was employed by the Missouri State
Department of Mental Health; Mo. Rev. Stat. § 632.489.4 allows respondent to offer the
testimony of only privately retained psychiatrists.
There was insufficient evidence to prove by clear and convincing evidence
that he is a sexually violent predator, because the diagnoses of Drs. Kline, Stanislaus, and
Weitl were inconsistent.
Respondent argues that these grounds are without merit.
III. STANDARD OF REVIEW
Habeas relief may not be granted by a federal court on a claim that has been
decided on the merits in state court unless that adjudication:
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
“A state court's decision is contrary to clearly established law if the controlling
case law requires a different outcome either because of factual similarity to the state case
or because general federal rules require a particular result in a particular case.” Tokar v.
Bowersox, 198 F.3d 1039, 1045 (8th Cir. 1999) (quotation marks and citation omitted);
Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). The issue a federal habeas court
faces when deciding whether a state court unreasonably applied federal law is “whether
the state court's application of clearly established federal law was objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000).
A state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1);
Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003).
Clear and convincing
evidence that factual findings lack evidentiary support is required to grant habeas relief.
Whitehead, 340 F.3d at 536.
A. Ground One
Petitioner argues that the probate court abused its discretion by admitting the
testimony of Dr. Stanislaus, an expert privately retained by the State who works in the
facility where petitioner is housed. Petitioner asserts that Mo. Rev. Stat. § 632.489.4
limits what psychiatrists or psychologists can testify at his commitment hearing.
Under habeas review, to determine whether a state court committed error by
admitting evidence, federal courts consider whether the state court’s decision was an
objectively unreasonable application of the Due Process Clause rather than whether the
evidence was properly admitted under state law. Middleton v. Roper, 498 F.3d 812, 820
(8th Cir. 2007). Under the federal constitutional standard, petitioner must show that the
asserted error of law was “so egregious that [it] fatally infected the proceedings and
rendered his entire trial fundamentally unfair.” Hamilton v. Nix, 809 F.2d 463, 470 (8th
Cir. 1987). To merit habeas relief, petitioner must also show a reasonable probability
that his jury verdict would have been different absent the asserted error. Id.
Petitioner argues that Mo. Rev. Stat. § 632.489.4 explicitly grants him, but not the
state, the right to obtain examinations by his or her expert of choice in an SVP
commitment proceeding. Section 632.489.4 provides in relevant part:
If the probable cause determination is made, the court shall direct that the
person be transferred to an appropriate secure facility, including, but not
limited to, a county jail, for an evaluation as to whether the person is a
sexually violent predator . . . . The court shall direct the director of the
department of mental health to have the person examined by a psychiatrist
or psychologist . . . who was not a member of the multidisciplinary team
that previously reviewed the person's records. In addition, such person
may be examined by a consenting psychiatrist or psychologist of the
person's choice at the person's own expense.
R. S. Mo. § 632.489.4 (2009) (emphasis added). Petitioner argues that Dr. Angeline
Stanislaus was disqualified by this statute from testifying for the state in his trial, because
she was employed by the state in the institution where he was sent. (Doc. 1 at 4). He
does not allege that Dr. Stanislaus was part of the multidisciplinary team that reviewed
his case. (Id.)
Before the jury trial of his case, petitioner moved to exclude Dr. Stanislaus as a
witness. Specifically, petitioner's counsel, Susan Elliott, renewed her motion in limine as
I would renew my motion to prohibit the state from
hiring a private psychiatrist or psychologist or from calling one to testify.
Again, the Court has denied this, but I would point out -- and I don't think I
put it in my original motion that the section of the sexually violent predator
act that describes the process for a petition for release to be filed
specifically says either the state or the respondent can hire a private psych - you know, a psychologist of their own choice and at their own expense to
evaluate the respondent, and the section that deals with the commitment of
sexually violent predators doe not contain that wording. It does contain
wording that says that either party can request a second opinion the
Department of Mental Health, and then the Court would assess the cost of
that to the party requesting it.
* * *
. . . [Y]ou are not asking to dismiss on those grounds,
you just wanted to exclude the testimony because you believe the statute
does not provide for private -- the private expert?
Okay. I am denying that motion.
(Doc. 12-1 at 28-31).
Dr. Stanislaus testified before the jury to the following. She is a licensed, board
certified forensic psychiatrist. She is in private practice and part of her practice is to
consult with the Missouri sex offender treatment center. In that consulting capacity she is
part of a team of mental health providers who are social workers, psychologists, and
nurses. This team provides treatment to sex offenders. She does this work part-time and
works with the very specialized Social Rehabilitation Unit, also known as the SRU.
(Doc. 12-1 at 230-33). She was contacted by the Missouri Attorney General's Office to
review petitioner Doyle's records and render an opinion about whether he met the criteria
for civil commitment under Missouri's sexually violent predator law. She made that
review and ultimately concluded that Doyle met these criteria. She explained to the jury
why she made this conclusion. (Id. at 233-45). Later, Ms. Elliott renewed her objection
to Dr. Stanislaus's testimony, stating, "she is not authorized by the statute, and so I would
renew it at this point and also ask the Court to strike all of her testimony for the grounds
stated in the motion." The trial judge overruled the objection. (Id. at 278-79).
On appeal, the Missouri Court of Appeals agreed, determining that the legislature
intended that either party could hire experts because the statute states, “One examination
shall be provided at no charge by the department.
All costs of any subsequent
evaluations shall be assessed to the party requesting the evaluation.” In re Doyle, 428
S.W.3d at 760 (citing Mo. Rev. Stat. § 632.489). See also Care and Treatment of Barlow
v. State, 250 S.W.3d 725, 732 (Mo. Ct. App. 2008) (stating the court could “find no
authority for the proposition that it is wrong for the State to engage another expert to give
an opinion consistent with the result it is seeking.”).
Even assuming without deciding that admitting the opinion of Dr. Stanislaus into
evidence before the jury was error, the error does not reach the constitutional
egregiousness contemplated by the Eighth Circuit in Hamilton v. Nix, 809 F.2d at 470.
The opinion of Dr. Weitl, the state’s other expert, whom petitioner does not challenge,
agreed with the opinion of Dr. Stanislaus.
(Doc. 12-5 at 4).
Drs. Stanislaus and
Kimberly Weitl both testified that petitioner had pedophilia and was more likely than not
to reoffend. (Doc. 12-5 at 4-5, 13-14).
Based in part on the facts showing he molested three children over a period of
time, Dr. Stanislaus diagnosed petitioner with pedophilia. She also found that several of
petitioner’s actions towards his victims showed he has serious difficulty controlling his
behavior and sexual urges. Dr. Stanislaus also assessed petitioner's risk for reoffending,
which she based in part on actuarial tools. She scored petitioner in the moderate low risk
category. Dr. Stanislaus also evaluated petitioner and found several risk factors present,
including deviate sexual interest, sexual preference for children, emotional identification
with children, offense-supportive attitude, sexual preoccupation, and impulsivity. She
concluded that he was more likely than not to reoffend if not confined to a secure facility.
Dr. Stanislaus listed the following factors to support her opinion: petitioner continued
molesting a victim immediately after being discovered, reoffended while on probation,
and committed statutory rape against one victim while the state's investigation with
another was open. (Doc. 12-1 at 282-318).
Dr. Kimberly Weitl also diagnosed petitioner with pedophilia. She considered
petitioner's risk factors to include his specific behavior toward his victims and his actions
going through treatment. In addition, Dr. Weitl used diagnostic tools in evaluating
petitioner. Petitioner scored in a subcategory of high risk for reoffending. Dr. Weitl
testified she believed petitioner was more likely than not to reengage in predatory acts of
sexual violence if not confined to a secure facility. (Doc. 12-1 at 357-89). Therefore, the
state's case rested on a substantial evidentiary basis even without the challenged
testimony of Dr. Stanislaus.
Petitioner cross-examined the state’s experts and presented his own experts to
rebut the opinions of Drs. Stanislaus and Weitl. First, he called Dr. Jeffrey Kline, a
forensic psychologist for the Department of Mental Health. Dr. Kline testified that he
rejected a diagnosis of pedophilia because he concluded there was not enough evidence
to confirm petitioner was sexually attracted to children or driven by sexual urges or
fantasies toward children. Dr. Kline stated that there are many reasons a person can
engage in sexual behavior with children, and they are not necessarily due to pedophilia.
Using the same diagnostic tools as the state’s experts, he concluded that petitioner did not
suffer from a mental abnormality that would make it difficult for him to control his
behavior. Dr. Kline also concluded he did not believe that petitioner was more likely
than not to reoffend if not confined to a secure facility. (Doc. 12-1 at 413-51).
Petitioner also called Dr. Luis Rosell, a clinical and forensic psychologist. Dr.
Rosell also considered and rejected a diagnosis of pedophilia. He agreed with Dr. Kline
that there are many other reasons why people may commit sex offenses against children.
Dr. Rosell instead diagnosed petitioner with adult antisocial behavior. Using the same
tools as the other experts, he concluded that petitioner did not suffer from a mental
abnormality under the applicable definition, and he concluded that petitioner was not
more likely than not to reoffend if not held in a secure facility. (Doc. 12-1 at 486-531).
After hearing all of the evidence, the jury reasonably found petitioner to be a
sexually violent predator. The state court’s factual findings are presumed to be correct in
habeas corpus actions. 28 U.S.C. § 2254(e)(1); Whitehead v. Dormire, 340 F.3d 532, 536
(8th Cir. 2003). Petitioner has failed to “clearly and convincingly” rebut the correctness
of the jury’s findings. Petitioner has also failed to show a reasonable probability that,
absent Dr. Stanislaus’s opinion, the verdict would have been different.
Thus, the decisions of the Missouri Circuit Court and the Court of Appeals
reasonably applied relevant federal law and reasonably determined the relevant facts.
Accordingly, Ground One is without merit.
B. Ground Two
Petitioner also argues that his civil commitment violates his federal Due Process
rights, because the state’s evidence was insufficient to “clearly and convincingly” prove
that he is more likely than not to engage in predatory acts of sexual violence if not
confined in a secure facility. Specifically, petitioner alleges that the state failed to
establish that he had a mental abnormality because the experts’ opinions were
A petitioner is entitled to habeas relief due to constitutionally insufficient evidence
if the federal habeas court finds that no rational trier of fact could have found the relevant
facts by the required burden of proof. Jackson v. Virginia, 443 U.S. 307, 324 (1979). As
stated, in habeas corpus review, factual findings of the state court (here the findings of
fact made by the Circuit Court jury) are presumed correct. 28 U.S.C. § 2254(e)(1). “The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” Id.; Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir. 2003).
The jury heard legally sufficient evidence that petitioner had a mental
abnormality. Of the four experts who testified at trial, two testified that petitioner
suffered from pedophilia. Drs. Weitl and Stanislaus testified that a person could meet the
diagnostic criteria for pedophilia if he or she engaged in sexual behaviors with a
prepubescent child for a period of six months or more, while Drs. Klein and Rosell stated
that there could be another reason for those behaviors. Based on the trial testimony, the
jury reasonably determined that petitioner was a pedophile.
Legally sufficient evidence proved that petitioner was an SVP, because he was
more likely than not to engage in predatory acts of sexual violence if not confined in a
secure facility. Drs. Stanislaus and Weitl both clearly testified that petitioner was more
likely than not to reoffend. Drs. Klein and Rosell offered contrary opinions. After
hearing all of the evidence, the jury reasonably found petitioner to be a sexually violent
predator. Petitioner has failed to “clearly and convincingly” rebut the correctness of this
Petitioner has failed to rebut the jury's factual findings clearly and convincingly.
The decisions of the state courts involve the reasonable application of federal law to a
reasonable determination of the facts.
Ground Two is without merit.
For the reasons stated above, the petition of William E. Doyle for a writ of habeas
corpus is denied. An appropriate Judgment Order is issued herewith.
Because petitioner did not make a substantial showing of the denial of a
constitutional right, a certificate of appealability is denied. 28 U.S.C. § 2253(c).
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on October 20, 2017.
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