Jo Nell Wisecup, Petitioner-appellee, v. Elton Floyd James, Superintendent, Respondent-appellant, 790 F.2d 841 (11th Cir. 1986)

BY THE COURT:

On October 21, 1985 the district court denied Wisecup's habeas petition. She timely appealed and the case was docketed in this court as No. 85-8936. She moved for CPC in the district court.

On January 8, 1986 instead of ruling on CPC the court vacated the October 21 judgment and granted the habeas petition based on an intervening Supreme Court decision. Wisecup then dismissed her appeal. The state then sought to appeal from the January 8 order.

The October 21 judgment was a final, appealable order under 28 U.S.C. § 1291. That the court had not granted CPC did not preclude an effective appeal. See Clemmons v. Wainwright, 648 F.2d 979, 980 (5th Cir. 1981).

The November 19 notice of appeal therefore divested the district court of jurisdiction to enter the January 8 order. See U.S. v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979). The district court could not act on Wisecup's CPC application as though it were a Rule 60(b) motion, because it could not grant such a motion without a remand from this court. Lairsey v. Advance Abrasive Co., 542 F.2d 928, 932 (5th Cir. 1976).

Thus we must remand to the district court with instructions to vacate the January 8 order for want of jurisdiction. See U.S. v. Cook, 670 F.2d 46 (5th Cir.), cert. denied, 456 U.S. 982, 102 S. Ct. 2255, 72 L. Ed. 2d 860 (1982). Wisecup can thereafter file a Rule 60(b) motion in the district court requesting it to vacate the October 21 judgment and grant her habeas petition. The resulting order could then be appealed. We cannot, as part of our remand order, require that this action be taken, since we lack jurisdiction over the appeal.

VACATED and REMANDED.