Swinton v. Ozmint, No. 06-6964 (4th Cir. 2006)

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The court issued a subsequent related opinion or order on July 3, 2007.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6964 ANDREW T. SWINTON, Petitioner - Appellant, versus JON OZMINT, Director of SC Department of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 Remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. ยง 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. (1988). Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266 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 -

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