      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 99-1345

                       ALCIDE H. SAUCIER,

                     Petitioner, Appellant,

                               v.

              WARDEN, NEW HAMPSHIRE STATE PRISON,

                     Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                             Before

                      Lynch, Circuit Judge,
                 Bownes, Senior Circuit Judge,
                   and Lipez, Circuit Judge.




     Alcide H. Saucier on brief pro se.
     Philip T. McLaughlin, Attorney General, and Christopher H.M.
Carter, Assistant Attorney General, on brief for appellee.




                          JUNE 5, 2000
            Per Curiam. Petitioner Alcide H. Saucier appeals

from the district court's dismissal of his habeas petition

under 28 U.S.C. § 2254 for lack of exhaustion.                For reasons

already stated in our order dated November 10, 1999, we

agree   with    petitioner     that   he   has    exhausted     his   state

remedies.      We nonetheless affirm dismissal of the petition

on the ground that it is untimely.               In our November order,

we directed briefing on this question because it appeared

that petitioner had not filed his petition within the one-

year grace period for habeas claims accruing before the

enactment of the Anti-Terrorism and Effective Death Penalty

Act ("AEDPA").       See Gaskins v. Duval, 183 F.3d 8, 9 (1st

Cir. 1999) (memorandum and order).            We now conclude that the

petition was untimely and that it should be dismissed with

prejudice.

            First,   while     the    state    failed    to   assert     the

limitations     defense   in   its    answer      to   the   petition,   we

conclude that it has not waived the defense.                    Given the

early stage of proceedings, the state might yet have raised

the defense by amending its answer or filing a motion for

summary judgment.     In its order dismissing the petition, the

district court mentioned the limitations period as bearing



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on   any    future        petition,        alerting     both   the   state       and

petitioner to this issue (albeit not with reference to the

instant petition).              Significantly, in his brief petitioner

has not asserted any prejudice attributable to the late

raising of the defense.               For these reasons, we hold that

there      has   been      no    waiver.          See   Williams     v.    Ashland

Engineering Co., 45 F.3d 588, 593 (1st Cir. 1995) (finding

no waiver of an affirmative defense raised before the close

of discovery and before summary judgment proceedings where

the plaintiff could anticipate litigation of the issue, had

an opportunity to respond, and was not unfairly prejudiced

by the late assertion of the defense); accord Conjugal

Partnership v. Conjugal Partnership, 22 F.3d 391, 400 (1st

Cir.    1994)      ("it    is     settled        that   '[w]hen    there    is     no

prejudice and when fairness dictates, the strictures of [the

raise or waive] rule may be relaxed") (citation omitted).

              Second, the petitioner has not shown that he timely

filed   his      petition,       as   he    suggests.       Finality       under    §

2244(d)(1)(A) occurs on the "conclusion of direct review or

the expiration of the time for seeking such review," but is

not determined by the time for filing a new trial motion

under      state     law,       as    petitioner        contends.          Section

2244(d)(1)(D) does not apply because the petitioner knew the


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factual predicates for his claims by the time his probation

was    revoked,    an   event   which      occurred   prior    to   AEDPA's

enactment.        Hence, he was obligated to file his claims

within the one-year grace period.               His failure to obtain

documents of record to substantiate his claims until May

1997    does     not    alter   that    fact,   especially      since    he

apparently made no effort to obtain those documents until

that time.

           Finally, even if this court were to hold that the

limitations period may be equitably tolled in an appropriate

case, this is not such a case.               The detrimental reliance

claims considered in Libby v. Magnusson, 177 F.3d 43 (1st

Cir. 1999), and Pratt v. United States, 129 F.3d 54 (1st

Cir.    1997),    cert.    denied,     523    U.S.    1123    (1998),   are

distinguishable.        The petitioners in those cases had filed

a second post-AEDPA petition and claimed that their filing

had been affected by pre-AEDPA law, so that application of

AEDPA to their second petitions would have an impermissible

retroactive effect.        In contrast, the petition at issue here

is a first petition which was filed after AEDPA's enactment.

We also note that this pro se petitioner's ignorance of the

limitations period, allegedly based on now invalid case law,

would    not   justify     equitable       tolling.     See    Harris   v.


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Hutchinson, -- F.3d -- , 2000 WL 345398 *5-*6 (4th Cir.

2000)   (no      equitable    tolling      where       counsel    erroneously

advised     petitioner       that    limitations         period    began     at

conclusion       of   post-conviction           proceedings);      Smith     v.

McGinnis, 208 F.3d 13, 16-18 (2d Cir. 2000) (per curiam) (no

equitable     tolling      where    pro    se    petitioner       erroneously

believed that filing federal petition could await exhaustion

of state remedies); Felder v. Johnson, 204 F.3d 168, 171-73

(5th Cir. 2000) (no equitable tolling where pro se inmate

lacked knowledge of limitations period).

            We    affirm     dismissal     of    the    28   U.S.C.   §    2254

petition, but we remand to the district court with the

direction that it modify its judgment of dismissal to be

with prejudice.




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