¶1Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.
¶2Robert Altman, Atlanta, Ga., for petitioner-appellee.
¶3Before GODBOLD, Chief Judge, and HILL and ANDERSON, Circuit Judges.
¶5On 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.
¶6On 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. *842Wisecup then dismissed her appeal. The state then sought to appeal from the January 8 order.
¶7The 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).
¶8The 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).
¶9Thus 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.
¶10VACATED and REMANDED.