JO NELL WISECUP, PETITIONER-APPELLEE,
v.
ELTON FLOYD JAMES, SUPERINTENDENT, RESPONDENT-APPELLANT
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The district court's January 8 order was vacated for want of jurisdiction because the notice of appeal divested the court of jurisdiction to enter that order.
The district court initially denied a habeas petition, but later vacated that order and granted the petition based on a new Supreme Court decision. Th…
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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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987)…th Circuit has recognized that Rule 60(b) can be used to remedy a mistake in the application of the law. Parks v. U.S. Life & Credit Corp., 677 F. 2d 838 (11th Cir.1982). Such reasoning was also implicit in our recent decision in Wisecup v. James, 790 F. 2d 841 (11th Cir.1986), where we remanded a case in order to allow the petitioner to file a Rule 60(b) motion on the basis of an intervening Supreme Court decision. See also Corn v. Kemp, 772 F. 2d 681 (11th Cir.1985) (Eleventh Circuit mandate recalled pen…
Authorities Cited
- United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979)
- Quincy Lairsey and Frances Lairsey v. The Advance Abrasives Co., 542 F.2d 928 (5th Cir. 1976)
- Maxwell v. United States, 456 U.S. 982 (U.S. 1982)
- Fince v. United States, 456 U.S. 982 (U.S. 1982)
- Church OF GOD (Worldwide Tex. Region) v. Amarillo Indep. Sch. Dist., 670 F.2d 46 (5th Cir. 1982)
- Clements v. Louie L. Wainwright, 648 F.2d 979 (5th Cir. 1981)