                              UNPUBLISHED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Remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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