Swinton v. Ozmint , 196 F. App'x 157 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6964
ANDREW T. SWINTON,
Petitioner - Appellant,
versus
JON OZMINT, Director of SC Department of
Corrections; HENRY MCMASTER, Attorney General
for South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. G. Ross Anderson, Jr., District
Judge. (4:05-cv-2826-GRA)
Submitted: August 9, 2006 Decided: August 29, 2006
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Andrew T. Swinton, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Andrew T. Swinton seeks to appeal the district court’s
order accepting the magistrate judge’s recommendation and
dismissing as untimely Swinton’s petition filed under 28 U.S.C.
§ 2254 (2000). The notice of appeal was received in the district
court shortly after expiration of the appeal period. Because
Swinton is incarcerated, the notice is considered filed as of the
date it was properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266(1988). The record does not reveal when Swinton gave the notice of
appeal to prison officials for mailing. Accordingly, we remand the
case for the limited purpose of allowing the district court to
obtain this information from the parties and to determine whether
the filing was timely under Rule 4(c)(1) and Houston v. Lack. The
record, as supplemented, will then be returned to this court for
further consideration.
REMANDED
- 2 -