United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2578

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Donald Wiegers, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the District

* of South Dakota.

Douglas Weber, Warden, SD *

Penitentiary; Mark W. Barnett, * [UNPUBLISHED]

*

Appellees. *

___________

Submitted: March 12, 2002

Filed: March 19, 2002

___________

Before BYE, FAGG, and BEAM, Circuit Judges.

___________

PER CURIAM.

Donald Wiegers brokered a murder-for-hire, located an assassin for the

contracting party, and provided the would-be-assassin with a picture of the intended

victim, a sawed-off shotgun, and the suggestion of faking a wrecker call to lure the

victim, a provider of towing services, to a remote location. The hired killer balked

twice after successfully luring the victim with fake wrecker calls. When the

contracting party complained that the service had not yet been performed and

demanded his money back, Wiegers refunded the money. Wiegers then contacted a

second assassin, negotiated a new fee arrangement, provided the second assassin
*

The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota.

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with a gun, and suggested the wrecker call ruse. The second assassin completed the

job, luring the victim to a new location, shooting him in the head, and stabbing him

eight times. Wiegers delivered the final payment. Ultimately, Wiegers was convicted

of two counts of conspiracy to commit premeditated murder, and one count of

second-degree manslaughter (a lesser-included offense of the premeditated murder

charge), and received two life sentences and a ten-year term of imprisonment,

respectively. 

The South Dakota Supreme Court affirmed Wiegers’s conviction for the first

conspiracy count, involving the reluctant would-be-assassin, but reversed Wiegers’s

convictions for the second conspiracy count involving the actual assassin and the

manslaughter count because prosecutor’s misconduct might have influenced a defense

witness involved in the second murder-for-hire arrangement to refuse to testify. See

State v. Wiegers, 373 N.W.2d 1, 10-11 (S.D. 1985). The convictions for the reversed

counts were vacated by stipulation of the parties. Wiegers challenged the remaining

conviction through a writ of habeas corpus in state court claiming, among other

things, that he was wrongfully prosecuted for two conspiracies, when only one

conspiracy existed. Wiegers described a double jeopardy claim, but did not refer to

the Double Jeopardy Clause. Wiegers’s petition was denied without a specific ruling

on the double jeopardy claim. Wiegers’s appeal to the South Dakota Supreme Court

was dismissed as untimely. Wiegers then petitioned the state trial court for a writ of

error coram nobis, raising the double jeopardy claim with correct reference to the

Constitution. Because the trial court found no factual or legal error, the court denied

coram nobis relief. The South Dakota Supreme Court affirmed this order. Next,

Wiegers petitioned the district court*

 for habeas relief. The district court denied

Wiegers’s petition, concluding his double jeopardy claim was procedurally defaulted,

and he had not shown cause and prejudice, or that he is actually innocent of the crime
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to excuse his default. Alternatively, the district court concluded that the double

jeopardy claim was frivolous, and failed on the merits. The district court granted

Wiegers a certificate of appealability, and he now appeals. Having reviewed the

district court’s findings of fact for clear error and conclusions of law de novo, we

affirm. Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002).

Like the district court, we conclude Wiegers’s double jeopardy claim is

procedurally defaulted. When Wiegers failed timely to appeal the denial of his state

habeas petition, he failed to give South Dakota “‘one full opportunity to resolve any

constitutional issue by invoking one complete round of [South Dakota’s] established

appellate review process.’” Id. (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999)); see also Murray v. Groose, 106 F.3d 812, 814 (8th Cir. 1997) (failure to

raise claim on appeal results in procedural default). Wiegers contends that because

he raised the double jeopardy claim in his petition for writ of error coram nobis, and

appealed the denial of the petition, he afforded the South Dakota Supreme Court the

opportunity to consider the merits of his double jeopardy claim. We disagree. 

South Dakota has had no opportunity to decide the double jeopardy claim on

the merits because Wiegers failed to present the claim to the state court in a timely or

procedurally correct manner. Harris v. Lockhart, 948 F.2d 450, 452 (8th Cir. 1991).

Under South Dakota law, a petition for writ of error coram nobis is not an alternative

to direct appeal or habeas action. Edwards v. State, 633 N.W.2d 623, 625 (S.D.

2001). Instead, the writ of error coram nobis is limited in scope to factual errors, with

the exception that the writ can reach certain constitutionally significant errors like

jurisdictional defects. Id. Coram nobis relief is not available for “ordinary error[s]

in law.” Id. Contrary to Wiegers’s contention, the state court did not decide the

merits of whether the double jeopardy claim warranted postconviction relief. In

denying the coram nobis petition, the state court decided only that there was no

factual or fundamental jurisdictional error, unknown at the time of the questioned

proceedings, for which no other remedy is available, that now causes failure to grant
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the writ to result in profound injustice. Gregory v. Class, 584 N.W.2d 873, 878-79

(S.D. 1998); see also Harris, 948 F.2d at 452 (reaching a similar conclusion under

Arkansas law in a procedurally similar case). 

Wiegers’s procedural default is not excused and we need not consider the

merits of his claim because Wiegers has failed to show cause and actual prejudice, or

that failure to review the merits of his claim would result in a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Indeed, Wiegers claims he does not need to show cause for his default and he has not

argued that he is actually innocent or that a fundamental miscarriage of justice will

result from our failure to review his claim. 

Anyway, even if Wiegers’s double jeopardy claim was not defaulted, it fails on

the merits for two reasons. United States v. Abboud, 273 F.3d 763, 766 (8th Cir.

2001) (because the Double Jeopardy Clause prohibits multiple sentences for the same

offense, the government cannot divide a single criminal conspiracy into multiple

conspiracy convictions). First, since the vacatur, Wiegers has been subjected to only

one conviction and one punishment. See id. Second, we agree with the district

court’s conclusion that there were two conspiracies. Although the underlying

offense, the intended victim, and several of the conspirators remained the same,

overall, the conspiracies occurred at different times and at different locations,

involved different people, most notably different assassins, and involved different fee

arrangements. See United States v. Aguilera, 179 F.3d 604, 607 (8th Cir. 1999).

We affirm the district court’s denial of habeas relief.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.