Andrew T. SWINTON, Petitioner-Appellant, v. Jon OZMINT, Director of SC Department of Corrections; Henry McMaster, Attorney General for South Carolina, Respondents-Appellees, 196 F. App'x 157

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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (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.