                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-4058
                                   ___________

Ricky R. Davenport,                     *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska
Michael Kenney, Warden,                 *
                                        *    [UNPUBLISHED]
             Appellee.                  *
                                   ___________

                             Submitted: May 6, 2004

                                  Filed: May 18, 2004
                                   ___________

Before BYE, McMILLIAN, and RILEY, Circuit Judges.
                            ___________

PER CURIAM.

      Ricky Davenport appeals the final judgment entered in the District Court1 for
the District of Nebraska dismissing without prejudice his 28 U.S.C. § 2254 petition
as a mixed petition under Rose v. Lundy, 455 U.S. 509 (1982). The district court
granted a certificate of appealability on Davenport’s claim that trial and appellate
counsel were ineffective for failing to raise a sufficiency-of-the-evidence challenge
to Davenport’s conviction for using a firearm in the commission of a felony. We

      1
      The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
affirm the dismissal because the claim was untimely, and we modify the dismissal to
be with prejudice.

       Davenport shot and killed another individual in a bar fight. He was later
convicted in Nebraska state court of manslaughter, using a firearm in the commission
of a felony, and being a felon in possession of a firearm. He received consecutive
sentences of 25 years, 20 years, and 20 years on the respective counts. See State v.
Davenport, No. A-94-009, 1994 WL 642698, at *1-2 (Neb. Ct. App. Nov. 15, 1994).
The Nebraska Court of Appeals affirmed Davenport’s conviction on direct appeal, see
id. at *17; denied a challenge to Davenport’s prior convictions in an order dated
January 21, 1997, see State v. Davenport, 5 Neb. App. 355, 559 N.W.2d 783 ( 1997);
and denied a motion for post-conviction relief filed in March 1998, see State v.
Davenport, No. A-98-571, 1999 WL 703624 (Neb. Ct. App. Sept. 7, 1999).
Davenport filed the instant federal habeas petition in February 2000, and filed a
motion to amend--to include the claim at issue in this appeal--on April 19, 2002.

        We agree with the state that Davenport’s federal habeas petition was untimely
under the Antiterrorism and Effective Death Penalty Act (AEDPA). See Cross-Bey
v. Gammon, 322 F.3d 1012, 1013 (8th Cir.) (one-year grace period from AEDPA’s
enactment), cert. denied, 124 S. Ct. 442 (2003). Even assuming that the state waived
the limitations defense to Davenport’s original section 2254 petition by failing to
raise it in the state’s response to the petition, the state did not have the opportunity
to raise the defense in response to the claim at issue after the district court granted
leave to amend, because the court simultaneously dismissed the petition as a mixed
petition. In these circumstances, we conclude that the state did not waive the defense
as to the instant claim. Cf. Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir.
1997) (waiver can be found where state’s conduct is so consistent with intent to
relinquish statute-of-limitations defense that no other reasonable explanation for its
conduct is possible). Moreover, the claim did not relate back to the original petition,
see United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999), and Davenport’s

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pro se status is not a basis for equitable tolling of the limitations period, see Kreutzer
v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), cert. denied, 534 U.S. 863 (2001).

     Accordingly, we affirm the district court’s dismissal of the claim, but we
modify the dismissal to be with prejudice.
                      ______________________________




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